22 June 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
Note: Transcripts were not provided between 1 June and 21 June, 2004.
This is the transcript of Day 10; jury selection was completed and the trial commenced.
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 June 22, 2004
8 9:45 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 ROBIN BAKER
16 CHRISTOPHER MORVILLO
17 ANTHONY BARKOW
17 ANDREW DEMBER
18 Assistant United States Attorneys
18
19 KENNETH A. PAUL
19 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
20
21 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
22
23 DAVID STERN
23 DAVID A. RUHNKE
24 Attorneys for Defendant Yousry
25
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1 (Trial resumed)
2 (In the robing room)
3 THE COURT: Good morning, all. It is good to see you
4 all.
5 My deputy informs me that juror No. 13, seat 4 has
6 something to bring to my attention. I have no idea what that
7 is. I don't talk to jurors by myself. And I would have one of
8 the lawyers for each of the parties and the parties themselves,
9 if the parties wanted them to be here, be in the room in the
10 back while I brought the juror in and asked the juror what it
11 is that the juror wanted to bring to my attention.
12 MR. PAUL: I don't think we want our clients here,
13 Judge.
14 MR. RUHNKE: That goes for us, too, your Honor.
15 THE COURT: Make sure that they waive their presence
16 then and then we will just have four lawyers here and I'll
17 explain it to the jury that I always have the lawyers here when
18 I talk to the juror. Don't be concerned about that.
19 Before we bring the juror in, Mr. Fletcher mentioned
20 one other thing to me that I want to bring to your attention,
21 and that is that the jurors want to disclose their names to
22 each other, or else refer to each other as nicknames, rather
23 than having to refer to each other by number. I have no
24 problem with the jurors telling each other their names. They
25 are simply not to disclose them to anyone else other than jury
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1 administrators and the marshals for purposes of transportation.
2 I'm happy to include that in my initial instructions to them.
3 MR. STERN: This not being a fraternity, I think they
4 should call each other by their real names.
5 THE COURT: Good. I agree. Let's bring in juror No.
6 13.
7 MR. FALLICK: Your Honor, do you want us to stand when
8 the juror comes in?
9 THE COURT: Whatever you are comfortable with. I
10 stand, but it really doesn't make a difference.
11 (Juror No. 13 present)
12 THE COURT: Juror No. 13, please have a seat.
13 Mr. Fletcher indicated there is something that you wanted to
14 bring to my attention. And whenever I talk to a juror I always
15 have the lawyers present.
16 A JUROR: The main issue that has influenced me, I
17 would say, is hearing on May 22 at a family gathering that my
18 older brother, who works for a freight airline, he told me on
19 the side that he is flying into Saudi Arabia, Kuwait, and Qatar
20 on a regular basis, sometimes secretly and sometimes at night.
21 He is also flying into Entebbe in Africa for the CIA.
22 Fast forwarding that, it was not in the questionnaire.
23 I think the questionnaire was way before May 22. When you
24 asked the other day, has anything changed, this was in the back
25 of my mind. The previous questions were, could I overlook
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1 certain things like the 9/11 event and being impartial and I
2 said then yes the other day. When you asked again, which was
3 just yesterday, had anything changed, I did not bring it up.
4 Once I was selected and seated in the jury area, I
5 realized that I could not be impartial at that time. I was
6 looking at the prosecutors thinking, I'm on the same side and
7 that thought has stayed with me more since then. If things
8 hadn't changed radically in Saudi Arabia in the last week or so
9 with the Johnson incident, I think I would not be as shaking as
10 I find myself now. But I also have to say that I thought since
11 then they had said all American business-related trips were no
12 longer going to Saudi Arabia. I did call my brother last
13 night. I did not mention specifically the case. I said I had
14 to know if he is still traveling, and he is.
15 THE COURT: You have not discussed this with any of
16 the other jurors, have you?
17 A JUROR: No.
18 THE COURT: Could you step outside.
19 (Juror No. 13 not present)
20 THE COURT: I'll excuse the juror.
21 MR. STERN: Judge, I have spoken with the other
22 defendants and we believe that we are entitled to a mistrial.
23 We picked this jury. While I'm not saying this juror lied to
24 us, because I don't believe he lied to us, I believe in
25 selecting this jury we assume we had all the information we
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1 needed to pick a jury. In fact we didn't. We are now -- not
2 that we didn't pick the alternates, because obviously we did
3 pick the alternates. They are picked in a way that gives you
4 much less leeway as to who to choose and who not to choose. I
5 think we are all asking for a mistrial.
6 MR. DEMBER: I'm opposing it. This has obviously just
7 developed, certainly came to a head this morning with this
8 juror. He was open and honest about it and we are stuck with
9 the situation that nobody could have predicted. These things
10 happen during the course of trials and there is no basis for a
11 mistrial at this point.
12 MR. STERN: This isn't during the course of the trial
13 yet. No one has opened. All we have done is selected the
14 jury.
15 MR. DEMBER: And the jury has been sworn, your Honor.
16 THE COURT: I agree with that. There is no basis for
17 a mistrial.
18 Based upon what the juror has told us now, the juror
19 should be excused now. People don't disagree that the juror
20 should be excused now, right?
21 MR. STERN: Correct.
22 MR. DEMBER: Correct, your Honor.
23 THE COURT: And we went through a thorough and
24 extensive voir dire of all of the jurors, And we had sworn the
25 jury. And if a problem is disclosed to us after that occurred,
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1 we excuse the juror and seat the first alternate.
2 MR. STERN: Judge, I'm not quibbling with your ruling.
3 I want to be clear, they were asked on the questionnaire if
4 they knew anyone who lived or worked in the Middle East or that
5 area. He didn't tell us that. He knew a while ago, apparently
6 May 22 at least, that his brother worked in the Middle East
7 flying in and out of the Middle East. So we did make our
8 selections based -- I don't want to seem like I'm accusing him
9 of anything. I don't believe he purposely withheld any
10 information. But we did pick this jury based on this
11 information or maybe, more accurately, lack of information.
12 THE COURT: As I said before, it was a thorough and
13 fair jury selection process. The juror, thinking about it,
14 forthrightly brought forward now a problem and disclosed it in
15 a sense of utter fairness. And so the proper means to address
16 that is to excuse the juror. Everyone agrees that the juror
17 should be excused and to seat the first alternate, who is juror
18 No. 153. And I will excuse juror No. 13 and tell him that he
19 can go home. Mr. Fletcher will tell juror 153 to take seat No.
20 4, and I will tell the jurors that I've excused juror No. 13
21 and that they are not to speculate on the reasons that I have
22 done that. It has nothing to do with anything that they will
23 have to decide in the case. You want me to tell the jury
24 anything else?
25 MR. DEMBER: No, your Honor.
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1 MR. STERN: No.
2 MR. TIGAR: Your Honor, I assume it will be a matter
3 of public record. Your Honor has denied a mistrial and so on.
4 THE COURT: Well, that's -- we are keeping a
5 transcript and no one has asked that the transcript be sealed.
6 And the juror's anonymity is protected.
7 MR. STERN: Can we have two minutes to tell my client
8 what happened?
9 THE COURT: Sure.
10 We have to bring back juror No. 13, too. Juror No. 13
11 is excused.
12 (Juror No. 13 present)
13 THE COURT: I appreciate you bringing this to my
14 attention and I will excuse you and you are able to go home
15 now.
16 Obviously, in leaving, you shouldn't go back into the
17 jury room and don't talk to any of the other jurors. And,
18 again, I appreciate your bringing this to my attention. Thank
19 you.
20 A JUROR: I apologize for the confusion it may have
21 caused.
22 (Juror No. 13 excused)
23 MR. FALLICK: Your Honor, given where Mr. Sattar and I
24 sit, we would request that everyone use a microphone. The
25 acoustics are not the greatest in that courtroom. We are all
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1 the way at the end. We would like everybody to use the
2 microphone as much as possible.
3 THE COURT: Sure.
4 (In open court; jury not present)
5 THE COURT: Mr. Fletcher.
6 (Case called)
7 MR. MORVILLO: Good morning, your Honor, Christopher
8 Morvillo, Anthony Barkow, Andrew Dember, and Robin Baker for
9 the government.
10 MR. TIGAR: Good morning, your Honor, Michael Tigar
11 and Jill Shellow-Lavine for Lynne Stewart, who is present in
12 court.
13 MR. STERN: David Stern and David Ruhnke for Mohammed
14 Yousry, who is also present in court.
15 MR. FALLICK: Barry Fallick and Barry Paul for
16 Mr. Sattar.
17 THE COURT: Good morning, all. It is good to see you.
18 We are ready to bring in the jury.
19 THE DEPUTY CLERK: Yes, your Honor.
20 THE COURT: Do the parties want the case called to
21 announce themselves to the jury?
22 MR. RUHNKE: I don't see any reason to do that, Judge.
23 THE COURT: I introduced all before.
24 (Jury present)
25 THE COURT: Good morning, ladies and gentlemen.
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1 It is good to see you all.
2 Members of the jury, now that you have been sworn, I
3 will briefly tell you something about your duties as jurors and
4 give you some instructions. At the end of the trial I will
5 give you more detailed instructions and those instructions will
6 control your deliberations. At the end of the presentation of
7 the evidence and my final charge to you it will be your duty to
8 decide from the evidence what the facts are and whether the
9 government has proved beyond a reasonable doubt that the
10 defendants have committed the crimes charged against them.
11 The fact that three people have been charged means
12 nothing in terms of whether the charges are true or not. Each
13 of the three people accused has pleaded not guilty to the
14 charges. Each is presumed to be innocent. And although all
15 three are being tried together, each of them is entitled to
16 your individual consideration of his or her own individual
17 case.
18 You, and you alone, are the judges of the facts. You
19 will hear the evidence, decide what the facts are, and then
20 apply those facts to the law which I will give to you. That is
21 how you will reach your verdict. In doing so you must follow
22 that law, whether you agree with it or not. You must not take
23 anything I may say or do during the trial as indicating what
24 your verdict should be.
25 Please don't be influenced by my taking notes. I take
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1 lots of notes. But what I write down may have nothing to do
2 with what you will be concerned with at the trial.
3 I would like to introduce you at the outset to some of
4 the court staff who you will see during the course of the
5 trial. As I explained to you yesterday, Mr. Don Fletcher is
6 the deputy clerk. As I also explained to you yesterday during
7 the trial, he will be responsible for giving the oath to
8 witnesses before they testify and keeping track of exhibits.
9 As you saw yesterday, we take the oath with extreme
10 importance. I ask everyone to watch carefully when the oath is
11 given. I ask people to put down their pens and pencils and
12 watch when a witness is sworn. Mr. Fletcher will swear the
13 witnesses. As I told you yesterday, importantly, from your
14 perspective, he will bring the jurors into and out of the
15 courtroom each time the jurors enter or leave the courtroom.
16 In the unlikely event that it is necessary for a juror to bring
17 something to the attention of the Court, the juror should
18 convey that to Mr. Fletcher, but please do not tell any other
19 juror about any matter you believe necessary to bring to the
20 Court's attention.
21 You should also not talk to Mr. Fletcher or indeed any
22 of the court staff about the substance of this case or any of
23 your views about the case. You should also remember never to
24 disclose your name or address to Mr. Fletcher or indeed any of
25 the court staff. That information is given only to the jury
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1 administrator's office and to the marshals for purposes of
2 transportation.
3 As I mentioned yesterday, I also instruct you not to
4 talk to the marshals about the substance or details of the
5 case, including scheduling. While the marshals will arrange
6 for transportation for you, you are not to talk to them about
7 anything to do with the case, including scheduling.
8 I would also like to introduce you to my law clerks,
9 Jonathan Martin and David Carpenter, who will be with us during
10 the course of the trial and you will see them sitting there.
11 Right now I ask you to pay close attention to these
12 preliminary instructions. First, some very preliminary
13 matters. I have excused juror No. 13 who was in seat 4, and
14 juror 153 is now in that seat. You are not to speculate on the
15 reason that I have done that. It has nothing to do with
16 anything you will have to decide. So I emphasize to you, you
17 are simply not to speculate about that.
18 I have also been told that you have asked whether you
19 can disclose your names to each other. Yes, of course, you can
20 disclose your names to each other. But, again, I emphasize, do
21 not disclose them to anyone else here at the courthouse. The
22 people with that information, as I mentioned to you, are the
23 jury administrator's office and the marshals for purposes of
24 transportation.
25 If you have any problem with respect to the
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1 temperature here in the courtroom, please let Mr. Fletcher know
2 and we will attempt to resolve that for you and attempt to make
3 any necessary arrangements. It is not always possible in a
4 large courtroom such as this, but we will try to do whatever we
5 can for you to make things comfortable for you.
6 Ladies and gentlemen, you will decide what the facts
7 are from the evidence that will be presented here in court.
8 That evidence will consist of the testimony of witnesses,
9 documents and other things received into evidence as exhibits,
10 and any facts upon which the lawyers agree or to which they
11 stipulate, or any facts about which I take judicial notice.
12 There are two kinds of evidence, direct and
13 circumstantial. Direct evidence is testimony by a witness
14 about what that witness personally saw or heard or did.
15 Circumstantial evidence is indirect evidence, that is, it is
16 proof of one or more facts from which you can find another
17 fact. You may consider both direct and circumstantial evidence
18 in deciding this case. The law permits you to give equal
19 weight to both or to none, or it is up to you to decide how
20 much weight, if any, to give to any evidence.
21 As the sole judges of the facts you must determine
22 which of the witnesses you believe, what portion of their
23 testimony you accept, and what weight you attach to it. At
24 times during the trial I may sustain objections to questions
25 asked. When that happens I will not permit the witness to
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1 answer or, if the witness has already answered, I shall
2 instruct that the answer be stricken from the record and that
3 you disregard it and dismiss it from your minds.
4 In reaching your decision you may not draw any
5 inference from an unanswered question, nor may you consider
6 testimony that I have ordered stricken from the record. The
7 items I exclude from your consideration will be excluded
8 because they are not legally admissible as evidence.
9 The law requires that your decision be made solely
10 upon the evidence before you. The law does not, however,
11 require you to accept all of the evidence that I do admit.
12 You, as the finders of fact, must make your own evaluation of
13 the testimony given by each of the witnesses and of the
14 documents presented to you, and determine the weight, if any,
15 you choose to give to each witness's testimony or to an
16 exhibit.
17 There is no magical formula by which you should
18 evaluate testimony or exhibits. I will, however, give you some
19 guidelines for determining the credibility of witnesses at the
20 end of the case. At this time, suffice it to say, you bring
21 with you to this courtroom all of the experience and background
22 of your lives. You do not have to leave your common sense
23 outside the courtroom. The same types of tests that you use in
24 your everyday dealings are the tests that you will apply in
25 your deliberations. Please, watch the witnesses very carefully
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1 and listen to everything that is said.
2 You should also understand what is not evidence. As
3 I've explained, the questions and objections of the attorneys
4 are not evidence and neither is the testimony I instruct you to
5 disregard. The statements and arguments of the attorneys
6 during any part of the trial are also not evidence.
7 (Continued on next page)
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1 Further, anything you may see or hear when the court
2 is not in session, even what you see or hear is done or said by
3 one of the parties or by one of the witnesses, is not evidence.
4 Only what is admitted into evidence here when court is in
5 session and all of the parties and jurors are present is
6 competent evidence.
7 Anything you may have heard, seen or read outside the
8 evidence presented here in court is not evidence. You must put
9 aside anything you have seen, heard or read and decide this
10 case based solely on the evidence presented here in court when
11 court is in session and all of the parties and jurors are
12 present.
13 Please remember, this is a criminal case. As I have
14 previously mentioned during your selection, the defendants have
15 been charged with the commission of federal crimes in an
16 indictment filed by a grand jury. An indictment, however, is
17 simply a description of the charges. It is not evidence of
18 anything. The defendants have pleaded not guilty to the
19 charges and deny committing the offenses. The defendants are
20 presumed innocent and the government will have to prove the
21 defendants guilty beyond a reasonable doubt on every element of
22 the charges in the indictment.
23 As I explained, the indictment is not evidence. It is
24 simply a description of the charges. The indictment in this
25 case sets forth a total of seven charges, each of which is
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1 called a count, against the three defendants -- Ahmed Abdel
2 Sattar, Lynne Stewart and Mohammed Yousry. All of the charges
3 relate to another individual named Sheikh Omar Abdel Rahman,
4 who is sometimes referred to as the Blind Sheikh.
5 The indictment alleges that Abdel Rahman was viewed as
6 a leader and religious scholar by others who followed and
7 associated with him, including members of an Egypt based group
8 known as al-Gama'a al-Islamiyya or the Islamic Group.
9 In 1995, Abdel Rahman was tried and found guilty of
10 federal crimes. The indictment alleges that defendant Ahmed
11 Abdel Sattar has known Abdel Rahman since before Abdel Rahman
12 was arrested in 1993. The indictment alleges that defendant
13 Lynne Stewart was one of Abdel Rahman's defense attorneys
14 during his 1995 trial and that she continued to act as one of
15 his attorneys after his conviction. The indictment alleges
16 that defendant Mohammed Yousry testified as a defense witness
17 at Abdel Rahman's 1995 criminal trial and starting in or about
18 1997 acted as an Arabic interpreter for communications between
19 Abdel Rahman and his attorneys.
20 The indictment alleges that Abdel Rahman is serving
21 his prison sentence under more restrictive conditions than
22 other prisoners. These conditions, which are known as special
23 administrative measures -- or SAMs for short -- limited certain
24 of Abdel Rahman's privileges in prison, including his access to
25 the mail, the media, the telephone, and visitors.
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1 The charges against the defendants in this case relate
2 to their alleged dealings with Abdel Rahman from 1997 through
3 2002, which was after he was tried, convicted and sentenced and
4 after the SAMs were imposed upon him.
5 Count 1 charges that from in or about June 1997
6 through in or about April 2002, all three defendants conspired
7 with each other and with other people to defraud the United
8 States by impeding and by obstructing, by trickery, deceit and
9 dishonest means, the lawful and legitimate functions of the
10 United States Department of Justice and the Federal Bureau of
11 Prisons in the administration and enforcement of the SAMs
12 imposed on Abdel Rahman.
13 The indictment alleges that as part of this agreement
14 the defendants passed communications between Abdel Rahman and
15 others with whom he was barred from communicating, including
16 the media.
17 Counts 2 and 3 charge only defendant Ahmed Abdel
18 Sattar.
19 Count 2 charges that from in or about September 1999
20 through in or about April 2002, Sattar conspired with Abdel
21 Rahman, and with other people who were not named as defendants
22 in this case, to kill and kidnap people in a foreign country.
23 Count 3 charges that from in or about September 1999
24 through in or about April 2002, Sattar solicited, commanded,
25 induced or otherwise endeavored to persuade other people to
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1 commit crimes of violence.
2 Counts 4 and 5 charge that defendants Lynne Stewart
3 and Mohammed Yousry conspired to and did provide and conceal
4 material support and resources to terrorist activity.
5 Specifically Counts 4 and 5 charge that Stewart and Yousry
6 agreed to and did provide personnel by agreeing to make, and by
7 making, Abdel Rahman available to participate in or to prepare
8 for the conspiracy charged in Count 2, which is the conspiracy
9 to kill and kidnap people in a foreign country.
10 Counts 4 and 5 also charge that Stewart and Yousry
11 agreed to and did conceal and disguise the nature, location and
12 source of personnel by agreeing to conceal and disguise, and by
13 concealing and disguising, that Abdel Rahman was participating
14 in or preparing for the conspiracy charged in Count 2.
15 Counts 4 and 5 allege that Stewart and Yousry acted
16 with the knowledge and intent that such material support and
17 resources were to be used to prepare for and carry out the
18 conspiracy charged in Count 2.
19 Counts 6 and 7 charge only defendant Lynne Stewart
20 with making false statements to the United States Department of
21 Justice and the Federal Bureau of Prisons. Specifically Count
22 6 charges that in or about May 2000, Stewart made materially
23 false, fictitious and fraudulent statements and representations
24 and made and used a false writing and document by submitting a
25 written affirmation that falsely stated, among other things,
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1 that she agreed to abide by the terms of the SAMs applicable to
2 Abdel Rahman.
3 Count 7 charges that Stewart committed the same
4 offense by submitting another such written affirmation in or
5 about May 2001.
6 I remind you, as I did in the course of your selection
7 as jurors in this case, this is only a summary of the charges
8 against the defendants. Each of the defendants has pleaded not
9 guilty to the charges and each of the defendants denies
10 committing the offenses. And each of the defendants is
11 presumed to be innocent of all of the charges in the
12 indictment.
13 At the conclusion of the trial, I will give you a
14 detailed description of the charges together with the
15 instructions on the law that you must follow.
16 A preliminary word about your duties and trial
17 procedures.
18 I have already instructed you that the function of the
19 jury is to decide the disputed fact issues in the case.
20 Obviously in order to discharge this duty it is important that
21 you listen carefully to the witnesses as they testify and form
22 no judgment with respect to any witness or the outcome of the
23 case as the trial moves forward. In short, it is important to
24 keep an open mind throughout the entire trial.
25 I also usually suggest that it is equally important to
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1 observe the witnesses as they testify. The reason for this is
2 that the credibility of most witnesses, if not all, will be an
3 issue. You will be called upon to appraise the credibility and
4 the truthfulness of a particular witness' testimony.
5 Oftentimes it is not what a witness says but how the witness
6 says it that may give you a clue as to whether or not to accept
7 the witness' version of an incident or an event as credible or
8 believable.
9 In short, the witness' manner of testifying before
10 you, the witness' appearance -- that is, the witness general
11 demeanor -- is a factor that may play an important part in your
12 reaching a judgment as to whether or not you can accept the
13 witness' testimony as reliable.
14 As the trial proceeds, you may have impressions of a
15 witness or a subject, but you must not allow those impressions
16 to become fixed or hardened because if you do in a sense you
17 foreclose consideration of the testimony of other witnesses or
18 other evidence that may come in subsequent to the witness you
19 heard. This would be unfair to one side or the other. A case
20 can be presented only step by step, witness by witness before
21 the totality of all evidence is before you.
22 We know from experience that frequently we will hear a
23 person give that person's version of an event which sounds most
24 impressive and even compelling and yet when we hear another
25 person's version of the same event, or even the same witness
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1 cross examined with respect to it, what seems so very
2 compelling and impressive may be completely dissipated or
3 weakened.
4 I am simply saying or trying to say to you in very
5 simple terms, remember that usually there may be another side
6 to every story. Think of the old adage there are usually two
7 sides to every story, and remember you will not have heard both
8 sides of any version until all the evidence in the case has
9 been presented. Thus, it is important to keep an open mind
10 throughout the taking of evidence.
11 In order to assure that you continue to keep an open
12 mind you are not -- and the court now instructs you -- to
13 discuss the case among yourselves during the progress of the
14 trial, to discuss the evidence or any aspect of the case, or
15 talk to any of the witnesses in the case or anyone about the
16 case or permit anyone to talk to you about the case. This
17 instruction about not discussing the case with others or
18 permitting others to talk to you about it extends to members of
19 your own family or friends. It remains in effect whether I
20 refer to it again or not.
21 The only time you are permitted to discuss or consider
22 the case is when it is submitted for your final consideration
23 and that is after all the witnesses have been heard and after
24 the lawyers who represent the parties have appeared before you
25 and summed up, as we term it. Giving their views as to what
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1 the evidence supports as to a fact finding and after of course,
2 and also importantly, the court's instructions as to the law.
3 It is only when the case is submitted to you for determination
4 and you go into the jury room that you have the right to
5 discuss or consider the evidence and make your fact
6 determination.
7 If you want to take notes during the course of the
8 trial, you may do so. But you are under absolutely no
9 obligation to take notes. We are keeping an official
10 transcript that you will have the right to review in the course
11 of your deliberations. If you do take notes, be sure that your
12 taking of notes does not interfere with your listening to and
13 considering all of the evidence.
14 Also, if you take notes do not discuss them with
15 anyone before or during your deliberations. Your notes are to
16 be used solely to assist you and are not to substitute for your
17 recollection of the evidence in the case. The fact that a
18 particular juror has taken notes entitles that juror's views to
19 no greater weight than those of any other juror. And your
20 notes are not to be shown to any other juror during the course
21 of deliberations.
22 If you choose not to take notes, remember, you should
23 rely upon your own memory of what has been said. Do not be
24 influenced by the notes of other jurors. Some people remember
25 better when they don't take notes. Just because one juror
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1 takes notes doesn't mean that those notes are a better
2 reflection of what happened in court than your own memory is.
3 If during deliberations you have any doubt as to any of the
4 testimony, you will be permitted to review the official trial
5 transcript that is being made of these proceedings.
6 We will provide all of you with pads and pens so that
7 you will be able to take notes if you choose. When you leave
8 at night, please leave your notes in the jury room. We will
9 provide each of you with a manila envelope in which to place
10 your notes when you leave each evening. We will only
11 distribute the pads and pens after the lawyers give their
12 opening statements because, as I have told you, what the
13 lawyers say is not evidence.
14 The defendants, their attorneys, and the government
15 attorneys are not to speak to jurors or to speak about the case
16 in a juror's presence. Thus, you should understand that if
17 they fail to acknowledge your presence or if they walk away
18 from a place that you are in, they are not being impolite or
19 discourteous. They are simply following the order of the
20 court.
21 Now a word about publicity. There may be some
22 publicity about this case. I am sure you understand from what
23 I have said during the selection of the jury that cases are
24 tried in the courtroom under prescribed rules of procedure and
25 not in the press or on the radio, on television or on the
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1 Internet. You must not be influenced by anything you may have
2 seen or heard outside the courtroom. You are in the best
3 position of anyone to listen to what the witnesses testify to.
4 You will see these witnesses sworn. They will take a solemn
5 oath before you to tell you the truth, the whole truth, and
6 nothing but the truth. You will hear all of their testimony.
7 Certainly there isn't anything that anyone can print, say over
8 the radio or television that would give you more information
9 than what you hear from the lips of the witnesses in this
10 courtroom and such exhibits as come into the case under
11 prescribed rules.
12 Often the news media will print matters which they
13 deem are significant when truly they are not significant. And
14 often a writer will emphasize a point which may even
15 misconstrue the testimony of a key witness, and sometimes in
16 stories about a trial there are even inaccuracies.
17 You are instructed not to read, listen to or watch
18 news reports concerning the case. If you should unavoidably
19 see an item disregard it and put it out of your mind. The fact
20 is that from your seat you are in the best position to hear and
21 see what goes on hear and you can get only the evidence you are
22 entitled to take into account in deciding the fact issues in
23 the case.
24 This instruction too continues throughout the entire
25 trial whether or not I repeat it to you. Please remember that.
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1 Do not do any research on your own about this case or visit any
2 place described during the trial.
3 Finally, if any person should attempt to communicate
4 with you or talk to you about the case it is your duty to
5 report that immediately to me and to no one else. You should
6 report it to me through my deputy, Don Fletcher.
7 As I did yesterday, because of the importance of these
8 instructions, let me summarize them again for you. These
9 instructions will continue to apply throughout the trial even
10 if I do not repeat them.
11 First, do not talk to each other about this case or
12 about anyone who has anything to do with it until the end of
13 the case when you go to the jury room to decide on your
14 verdict.
15 Second, do not talk with anyone else about this case
16 or about anyone who has anything to do with it until the trial
17 has ended and you have been discharged as jurors. "Anyone
18 else" includes members of your family and your friends. You
19 may tell them that you are a juror in a case but please don't
20 tell them anything else about it until after you have been
21 discharged by me.
22 Third, do not let anyone talk to you about the case or
23 about anyone who has anything to do with it. If someone should
24 try to talk to you please report it to me immediately through
25 my deputy clerk, Don Fletcher. You should not, however,
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1 discuss with your fellow jurors either that fact or any other
2 fact that you feel necessary to bring to the attention of the
3 court.
4 Fourth, do not converse, whether in or out of the
5 courtroom, with any of the lawyers, the defendants or the
6 witnesses. By this I mean not only do not talk about the case,
7 I mean do not converse at all, even to pass the time of day. I
8 have instructed all of the lawyers, the defendants, and the
9 witnesses that they are not to speak to you or even acknowledge
10 you with a hello or good morning outside the courtroom.
11 Therefore, do not hold it against them if they ignore you or
12 should leave an area which you are in. They are simply
13 following my instructions. The reason for this rule is very
14 simple. Someone watching from a distance might not hear what
15 is said between an attorney and a juror and even a pleasantry
16 could thereby create a misimpression.
17 Fifth, do not read any news stories or articles or
18 listen to any radio or television reports about the case or
19 about anyone who has anything to do with it. If you should see
20 or hear something inadvertently simply turn away and put it out
21 of your mind.
22 Of course, this refers also to any reports on the
23 Internet. Do not look at any such reports. If you should see
24 or hear something inadvertently, simply turn away and put it
25 out of your mind.
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1 Sixth, do not do any research or any investigation
2 about the case on your own. Do not go to visit any place
3 described during the trial. The reason for these rules is
4 fairly simple. The parties are entitled to have you personally
5 render a verdict in this case on the basis of your independent
6 evaluation of the evidence presented here in the courtroom
7 after your deliberations with the other jurors. Obviously
8 speaking to others, including your family and friends, outside
9 of the deliberation process, or exposing yourself to evidence
10 or information outside the courtroom, would compromise your
11 service and fairness to the parties.
12 Now a word about trial procedure.
13 The trial proper will start with what are called
14 opening statements. The attorneys representing the government
15 and the attorneys representing the defendant will, before any
16 evidence is received, appear before you and make opening
17 statements. This is a sort of framework or reference as to
18 what the case is about, the issues in the case, and the
19 attorneys will set forth what they believe. And I underscore
20 the word "believe" the evidence will show. These statements by
21 the lawyers are made in good faith and on the basis of their
22 preparation for trial. But I must caution you now, and
23 probably will again during the course of the trial, that
24 however helpful these opening statements may be so that we can
25 follow the testimony with reference to the issues in the case,
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1 they are not a substitute for the evidence.
2 The only evidence that you may act upon is that which
3 you will hear from a witness who will be sworn in your
4 presence, take an oath to tell the truth, and following the
5 questioning on direct examination is subject to cross
6 examination, and such documents or exhibits as are admitted in
7 evidence. The totality of the testimony of witnesses, the
8 exhibits and any stipulations that the parties agree upon, or
9 any facts of which I take judicial notice, constitute the
10 evidence upon which you will reach a verdict in the case. So,
11 too, if during the course of the trial a lawyer for either the
12 government or the defense should make any statement with
13 reference to a fact matter or include a fact reference in a
14 question or eventually in the lawyer's summation refers to fact
15 matters, you will bear in mind that statements by the lawyers
16 are not evidence. The sole and only evidence is that to which
17 I have already referred.
18 After the opening statements the government will offer
19 its proof. That is called the government's direct case. Upon
20 the conclusion of the government's case, the defendants may, if
21 they wish, present evidence. I may permit the government to
22 introduce rebuttal evidence.
23 A defendant is not required to make an opening
24 statement or offer any proof. As I have already told you, the
25 defendants have no burden of proof. Each defendant is presumed
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1 to be innocent of the charges. The sole burden of proof is
2 upon the government and to sustain its charges it must do so
3 beyond a reasonable doubt.
4 If a defendant decides not to make an opening
5 statement or offer any proof that is completely up to the
6 defendant and in no respect may this be considered against a
7 defendant.
8 Upon the conclusion of all the testimony, the lawyers
9 will again address you. This is called a summation and each
10 will urge upon you the arguments that the lawyer believed
11 supports whatever position the lawyer advocates. You will, of
12 course, listen attentively to the lawyers. The determination
13 as to whether or not you accept any argument advanced before
14 you by the prosecution or the defense is entirely up to you.
15 You make the fact determination. You may accept such arguments
16 as appeal to you; if not, you reject them.
17 Following the lawyers' summations, the court will
18 instruct you as to the law and it is then that you go into the
19 jury room and undertake your fact-finding function. The
20 ultimate decision in finding the facts, deciding the facts, is
21 yours. This must be based upon the evidence presented before
22 you. Please, please do not make up your mind about what the
23 verdict should be until you have heard all of the evidence, I
24 have instructed you on the law at the end of the case, and you
25 have deliberated with your fellow jurors.
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1 Please keep an open mind until then. All parties
2 deserve -- and the law requires -- that you give them an
3 opportunity to be fully heard.
4 Yesterday I explained the general trial mechanics. We
5 meet from 9:30 until 12:45 and from 2 until 4:30 usually Monday
6 through Thursday. The marshals will arrange for your
7 transportation. I gave you emergency telephone numbers. I
8 remind you again that if you need to call give us only your
9 juror identification number, not your name or address or
10 telephone number. The jury administrator can always contact
11 you and neither I or my staff need your name, address or
12 telephone number, and you should not give it to us.
13 That concludes the preliminary instructions, ladies
14 and gentlemen, and we now turn to the phase of the trial which
15 I explained to you in which the parties are given the
16 opportunity to explain to you what they believe the evidence in
17 the case will show or not show.
18 As I explained to you, the opening statements are not
19 evidence. They are statements by lawyers which you should
20 listen to attentively, but they are not evidence. They are
21 statements by the lawyers about what they expect the evidence
22 to show or not show in this case.
23 Just in terms of timing, it may be that in the course
24 of one or more of the openings it comes a time for us to take a
25 break either in the middle of the morning or in the middle of
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1 the afternoon and I simply alert you to that fact. The lawyers
2 are certainly welcome, if they think that it's an appropriate
3 time for all of us to take a break, to ask for a break in the
4 middle of an opening.
5 We always, ladies and gentlemen, attempt to make
6 things comfortable for you and if at any time in the course of
7 the trial any juror needs a break, please just raise your hand
8 and we will attempt to accommodate that in terms of a break.
9 And I simply alert that to you in view of the fact that we are
10 about to start on the opening statements.
11 The first opening statement will be given on behalf of
12 the government by Mr. Morvillo.
13 Mr. Morvillo.
14 MR. MORVILLO: Your Honor, this may be an ominous way
15 to start, but may we have a brief side bar?
16 THE COURT: No. I am perfectly happy to take a break
17 rather than to take a side bar.
18 MR. MORVILLO: That is what I was going to ask at the
19 side bar, a very brief break.
20 THE COURT: Ladies and gentlemen, I told you that
21 there might be breaks, and this is a convenient time for us to
22 take a break.
23 Ladies and gentlemen, I often -- often, but perhaps
24 not always -- repeat the instructions which are so important to
25 me.
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1 As I told you, the instructions are continuing even if
2 I don't repeat them before every break but they are so
3 important to me that I tend to repeat them a lot.
4 Don't talk about this case at all and remember always
5 to keep an open mind until you have heard all of the evidence,
6 I have instructed you on the law, and you have gone into the
7 jury room to begin your deliberations.
8 Have a good break.
9 All rise please.
10 (Jury left the courtroom)
11 THE COURT: I will see you shortly.
12 (Recess)
13 (Continued on next page)
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1 (In open court; jury not present)
2 THE COURT: Bring in the jury.
3 (Jury present)
4 THE COURT: Ladies and gentlemen, the first opening
5 statement will be given on behalf of the government by Mr.
6 Morvillo.
7 Mr. Morvillo.
8 MR. MORVILLO: Thank you, your Honor.
9 Good morning. May it please the Court, this is Sheikh
10 Omar Abdel Rahman. He is the spiritual leader of a violent
11 international terrorist organization called the Islamic Group.
12 He is serving a life sentence in a federal prison here in the
13 United States, a sentence imposed on him by a federal judge
14 following his conviction for, among other crimes, conspiracy to
15 commit murder, conspiracy to bomb and soliciting others to
16 commit crimes of violence.
17 The evidence in this case will show that Abdel Rahman
18 in fact preaches and solicits violence to accomplish his goals.
19 From prison in the United States Abdel Rahman has instructed
20 his followers to kill Americans. These are his words:
21 Dismember their nation, tear them apart, ruin their economy,
22 provoke their corporations, destroy their embassies, attack
23 their interests, sink their ships, and shoot down their planes.
24 Kill them on land, at sea, and in the air. Kill them wherever
25 you find them. Kill Americans everywhere.
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1 To make sure that Abdel Rahman was completely cut off
2 from his network of terrorist followers and to make sure that
3 Abdel Rahman's days of soliciting and inciting violence were
4 over forever. The United States Government imposed heavy
5 restrictions on his ability to communicate with the world
6 outside his prison cell. In effect, the United States
7 Government locked the door to his cell and threw away the key,
8 or so it thought.
9 Somehow, Abdel Rahman was able to communicate with the
10 leaders of his terrorist network. Somehow, Abdel Rahman was
11 able to pass his instructions, his orders, and his opinions to
12 the leaders of his terrorist network. Somehow, despite the
13 prison restrictions, Abdel Rahman was able to get a message to
14 the leaders of his terrorist group saying that he believed that
15 the time to kill had arrived.
16 That somehow is sitting right here in this courtroom.
17 Let me introduce you to them.
18 This is the defendant Ahmed Abdel Sattar. The
19 evidence will show that Sattar led a double life. By day he
20 was a postal worker. By night he was a terrorist living in a
21 shadowy world, a world where to avoid detection people speak in
22 code and don't use their real names when they speak on the
23 telephone. A world where Abdel Rahman is revered, a world
24 where violence is solicited and terrorist conspiracies are
25 hatched, a world where Sattar can proudly utter the words that
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1 he wants everybody to hear. These are his words: "Kill Jews
2 wherever they are and wherever you find them.
3 The evidence in this case will show that Sattar was a
4 dedicated follower of Sheikh Abdel Rahman. When Abdel Rahman
5 was arrested in 1993, Sattar was right there by his side.
6 Following Abdel Rahman's conviction and life sentence, Sattar,
7 the evidence will show, became a point man in a scheme to
8 smuggle messages into and out of Abdel Rahman's prison cell,
9 messages to and from terrorists who still walk the streets and
10 who were still able to kill and kidnap. As a result, the
11 evidence will show that Sattar was a crucial link between Abdel
12 Rahman and his terrorist network. The evidence will show that
13 through contact with Abdel Rahman and other terrorists, Sattar
14 solicited murder and participated in a terrorist conspiracy to
15 kill and kidnap people.
16 This is the defendant Lynne Stewart. The evidence in
17 this case will show that she served as one of Abdel Rahman's
18 criminal defense attorneys during his 1995 criminal trial. As
19 a result, the evidence will show that Lynne Stewart knew that
20 Abdel Rahman had been convicted of crimes involving violence.
21 The evidence will also show that she knew that he preached and
22 solicited violence. The evidence will also show that she knew
23 that acts of terrorism had been threatened and carried out in
24 Abdel Rahman's name. She also knew that it was for these very
25 reasons that the United States Government had imposed these
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1 prison restrictions in the first place.
2 But knowing all this, she used her status as a lawyer
3 to obtain access to Abdel Rahman under the prison restrictions
4 to help smuggle dangerous messages out of prison. The evidence
5 will show that by engaging in that calculated conduct Stewart
6 supported a terrorist conspiracy and along the way deliberately
7 lied to and defrauded the United States Government.
8 This is the defendant Mohammed Yousry. Mr. Yousry was
9 Abdel Rahman's translator. You will learn that Abdel Rahman
10 speaks primarily Arabic. He is also blind. As a result of
11 those two facts, and because of the prison restrictions, Yousry
12 was one of the only people in the world who could communicate
13 directly with Abdel Rahman. In addition, the evidence will
14 show that Mr. Yousry was an expert in Abdel Rahman and his
15 terrorist group the Islamic Group. He had written articles
16 about them and he had collected hundreds of articles about
17 Abdel Rahman and the Islamic Group. He knew all about them.
18 And though Mohammed Yousry knew all about the prison
19 restrictions, he is the one who read the forbidden messages
20 from other terrorists to Abdel Rahman, and he is the one who
21 took down Abdel Rahman's dictated responses to be passed back
22 to the terrorists overseas. Because of his crucial role, the
23 evidence will show that Yousry enabled Abdel Rahman to continue
24 to control his network of terrorist followers from prison; and
25 in so doing, he supported a terrorist conspiracy and defrauded
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1 the United States Government.
2 These are the defendants. Despite the fact that these
3 defendants all knew that Abdel Rahman had been convicted of
4 crimes of violence, despite the fact that they knew that acts
5 of terrorism had been threatened and carried out in Abdel
6 Rahman's name and despite the fact that they knew all about the
7 prison restrictions, these defendants had an agenda, an agenda
8 that they shared with one another, an agenda that was simple.
9 Abdel Rahman's message was going to get out no matter what, and
10 so it did.
11 Using the pretext of attorney-client visits and
12 telephone calls, these defendants were able to break Abdel
13 Rahman's message of terror out of jail and deliver it to the
14 very people who never should have heard it, other terrorists
15 who still walk the streets and were still able to follow his
16 instructions. In the process these defendants broke the law.
17 In fact, they broke several laws.
18 First, these defendants, all three of them, broke the
19 law by participating in a conspiracy, a criminal agreement to
20 defraud the United States Government, by engaging in conduct
21 that violated the prison restrictions; second, Sattar, the
22 evidence will show, participated along with Abdel Rahman and
23 others in a conspiracy to kill and kidnap people in another
24 country, and Stewart and Yousry supported that conspiracy by
25 making the otherwise inaccessible Abdel Rahman available to
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1 participate as a member of that conspiracy to kill and kidnap
2 people in a foreign country.
3 Third, Sattar broke the law by soliciting others to
4 commit crimes of violence. Kill the Jews wherever they are and
5 wherever you find them is just a part of that crime.
6 Fourth, Stewart deliberately lied to the United States
7 Government when she twice falsely stated in writing under oath
8 that she would comply with the prison restrictions in place on
9 Abdel Rahman.
10 What are the facts? Well, there are a lot of them
11 here and I am going to take some time to walk you through them.
12 Before I turn to the specific evidence, let me just
13 say this. The purpose of an opening statement is not to tell
14 you what the evidence is. The witnesses will do that and the
15 exhibits will do that. Nor is the purpose of an opening
16 statement for me to try to imprint on you, on your minds, every
17 important fact. If we tried to do that, we would be here for
18 an awfully long time. An opening statement is sort of like
19 getting someone ready for a trip that they have never taken
20 before. You try to get them oriented to certain terms and
21 signs in the road so as they actually take the trip, they
22 understand where they are going and where they have been. In
23 that way my purpose here today is to give you a preview of what
24 the government expects the government will show in an effort to
25 provide you with landmarks and signposts to help you understand
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1 the journey you are about to take.
2 I am going to mention a lot of names and dates and
3 words and places, and during the trial you will even hear more.
4 Please don't worry about that. What might seem quite strange
5 to you right now, I assure you, will seem quite familiar.
6 Let me tell you what I am going to do. This opening
7 statement is broken down into five parts. The good news is
8 that I've already finished the first part. Next I am going to
9 very briefly tell you what this case is about, a very quick
10 overview, the evidence in a nutshell. Then I am going to walk
11 you through in more details some of the relevant facts and
12 events. After that, I am going to spend a few minutes telling
13 you how we, the government, are going to prove these facts and
14 events to you. Finally, I am going to make a few final remarks
15 and conclude.
16 What is this case about? Quite simply, this is a case
17 about a jail break. Not your typical jail break where a
18 prisoner is freed to once again walk the streets. It is a
19 different type of jail break but one that the evidence will
20 show was equally as dangerous.
21 As I mentioned at the outset, Abdel Rahman was in jail
22 for conspiring to commit murder, for soliciting crimes of
23 violence, and for conspiring to bomb, among other crimes. He
24 was also the leader of a foreign terrorist organization called
25 the Islamic Group. The evidence will show that his role in the
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1 group was to make decisions, to give orders and approvals on
2 Islamic Group policy, and when and whether to carry out
3 terrorist operations. The evidence will show that he set the
4 agenda, that he gave the approvals, and that he was in control.
5 Thus, the evidence will show that it was his
6 directions and commands and his access to information that made
7 him dangerous, that made him a threat to innocent lives. The
8 evidence will show that his words and speeches were as
9 dangerous as weapons because of the effect that they had on his
10 followers. Stopping him from communicating with his group is
11 the only sure way to eliminate the threat that he posed. And
12 that is what the special prison restrictions were intended to
13 do. These defendants allowed Abdel Rahman to communicate with
14 his network of terrorist followers. To allow that to happen,
15 these defendants provided Abdel Rahman with a secret,
16 underground communications channel to get around the special
17 prison restrictions. The evidence will show that these
18 defendants were the ones who pulled off the jail break. They
19 were the ones who broke Abdel Rahman's message out of jail.
20 What were those messages? There were many. But all
21 the secret messages back and forth between Abdel Rahman and his
22 terrorist network culminate in the spring of 2000, when a
23 public announcement is made by Abdel Rahman, courtesy of these
24 defendants, saying that Abdel Rahman no longer supported a
25 cease fire by this terrorist organization, the cessation of
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1 terrorist violence between his organization and the Egyptian
2 government. In essence, these defendants helped Abdel Rahman
3 break out of jail to inspire his terrorist group to return to
4 terrorism. They allowed Abdel Rahman to tell his followers,
5 "Fire." That is what this case is about. And now I am going
6 to tell you how they did it.
7 To help me help you understand the facts of this case,
8 the chain of lengths that led us all here, I have prepared a
9 very general time line to get you oriented which, if the
10 technology is working right, should be displayed in the
11 monitors in front of you and on the screen behind you.
12 Fortunately, it is.
13 Let's start at the beginning. Abdel Rahman. Who is
14 Sheikh Abdel Rahman? He is sometimes referred to as the Blind
15 Sheikh. You know just about all you need to know about him
16 already. He is the leader of an international terrorist
17 organization serving a life sentence in a federal prison for
18 conspiring to commit and soliciting others to commit crimes of
19 violence. You see on the time line in October of 1995, Abdel
20 Rahman was convicted. He was sentenced in January of 1996.
21 Abdel Rahman was a man that the United States
22 Government believed was so dangerous it tried to cut him off
23 from the outside world. You will learn that Abdel Rahman is an
24 extremely radical Islamic cleric. You will learn that Abdel
25 Rahman issued religious orders, what are called fatwahs, urging
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1 Jihad, which literally means struggle but, as used by Abdel
2 Rahman and his followers means holy war.
3 Given the facts that I have just laid out for you, it
4 should come as no surprise that the United States Government
5 was extremely concerned about Abdel Rahman's ability to
6 continue to solicit and incite violence from jail.
7 In an attempt to prevent Abdel Rahman from committing
8 crimes like those for which he was convicted, you will learn
9 that beginning in April of 1997, the United States Government
10 imposed what are known as special administrative measures, or
11 SAMs for short. These are the prison restrictions that I
12 mentioned to you earlier. These restrictions are the ones, the
13 evidence will show, that these defendants conspired to evade.
14 As a result, you will hear a lot about the special
15 administrative measures during the course of this trial. The
16 SAMs stated purpose is simple but critically important: To
17 protect persons against the risk of death or serious bodily
18 injury that could otherwise result if Abdel Rahman were free to
19 communicate, send or receive terrorist information.
20 Among other things, the SAMs allowed Abdel Rahman to
21 call only his wife -- those calls were monitored -- and his
22 attorneys. His nonlegal mail was screened by federal
23 authorities. He was prohibited from communicating with any
24 member of the media. And the attorneys were required to sign
25 what are called affirmation agreements before being allowed
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1 access to him. The affirmations required: First, that the
2 attorneys and their staff would fully abide by the SAMs before
3 being allowed access to Abdel Rahman; second, that they would
4 only be accompanied by translators for the purpose of
5 communicating with inmate Abdel Rahman concerning legal
6 matters; and, third, that they agree not to use their meetings,
7 their correspondence, their phone calls, with Abdel Rahman to
8 pass messages between third parties, including the media and
9 Abdel Rahman. The evidence will show that Lynne Stewart signed
10 several of these affirmations and then proceeded to completely
11 disregard them.
12 The Islamic Group. Let's talk for a minute about the
13 Islamic Group. That group is important to this case. As I
14 have told you, Abdel Rahman was their spiritual leader, or
15 emir. The Islamic Group has long been a foreign terrorist
16 organization specifically designated by the United States
17 Government, a fact that was known by each of these defendants.
18 You will learn that by 1997 many of the Islamic
19 members and leaders were in jail in Egypt. The group was weak.
20 Many senior leaders of the organization had fled Egypt to avoid
21 arrest. You will learn that in mid 1997, the Islamic Group in
22 jail called for a unilateral cease fire, a tactical move by the
23 group to try to convince the government of Egypt to let them
24 out of jail. You will see it indicated here on the time line
25 in the summer of 1997.
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1 You will learn that in the summer of 1997, after it
2 was called for by the Islamic Group in jail, Abdel Rahman, even
3 though subject to special administrative measures at the time,
4 was able to get a message out of prison saying that he
5 supported the cease fire. You will also learn, however, that
6 Abdel Rahman had not abandoned his terrorist roots and become a
7 man of peace. That fact will become crystal clear as the
8 evidence in this case unfolds. You also learn that not all of
9 the group's leaders and members supported the cease fire.
10 Let's move to November of 1997. It is November 17,
11 1997. It is the morning. The scene is one of Egypt's most
12 popular tourist attractions, the magnificent archeological
13 ruins in the City of Luxor. Tour buses pull in and out of the
14 site. Tourists are milling about, snapping photographs and
15 soaking up the ancient history. In a heartbeat the serenity of
16 this moment is shattered by the sounds of gun fire and
17 screaming. Seemingly out of nowhere guns have appeared and
18 have begun indiscriminately shooting tourists. Tourists are
19 running everywhere trying to escape the carnage, some huddling
20 together near the entrance of the temple, and with nowhere to
21 run are massacred. A guard is shot in the head, a fleeing
22 woman is shot from behind, a man pleads with one of the
23 attackers, kill me and not my wife.
24 In the end, dozens of tourists are dead. It was a
25 brutal act of cold-blooded murder. The evidence will show that
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1 these defendants were aware of the fact that this massacre was
2 conducted by members of the Islamic Group and, further, that
3 the terrorist who carried out this attack did so in an effort
4 to free Abdel Rahman from prison in the United States. In
5 other words, the evidence will show that these defendants knew
6 that Abdel Rahman inspired terrorism.
7 You will also learn that one of the most senior
8 leaders of the Islamic Group wrote a book in which he attempted
9 to justify the killing of tourists in Egypt, a book in which he
10 referred to the terrorists who carried out the Luxor massacre
11 as martyrs, a book that he dedicated to Sheikh Abdel Rahman.
12 His name is Rifa'i Ahmad Taha Musa, or Taha for short. He also
13 goes by the alias Abu Yasir. You will hear a lot about this
14 terrorist during the course of this trial. He was a friend of
15 Sattar's. In fact, you will learn that Sattar had Taha's book.
16 Let me give you what the evidence will show about
17 Taha. The evidence will show that he is a ruthless terrorist
18 leader. He is one of the most senior leaders of the Islamic
19 Group. He is on the Shura Council of the Islamic Group, which
20 is sort of like the terrorist organization's board of
21 directors.
22 The evidence will show that at the time of the events
23 in this case Taha was living in Afghanistan with Osama Bin
24 Laden and Osama Bin Laden's terrorist group, Al-Qaida. The
25 evidence will show that Taha believes that Americans should be
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1 murdered. The evidence will show, in fact, that in February of
2 1998, an event depicted on the time line, that there was a
3 fatwah issued by Osama Bin Laden that called on "every Muslim
4 who believes in God and desires to be rewarded to follow God's
5 order to kill Americans and plunder their wealth wherever and
6 whenever they find it.
7 Taha also believes that Jewish people should be
8 killed. In fact, he coauthored the kill the Jews fatwah with
9 Sattar that I mentioned earlier. The evidence will show that
10 Taha was one of the moat militant leaders of the Islamic Group.
11 You will also learn that Taha absolutely opposed the cease
12 fire. He wanted the Islamic Group to continue in its terrorist
13 traditions, killing innocent people to accomplish its goals.
14 As long as a cease fire was in place and Abdel Rahman was
15 supporting it, Taha was in the minority. His murderous hands
16 were tied.
17 This is where the defendants come in. They were his
18 only link to Abdel Rahman. Taha needed access to Abdel Rahman
19 to convince him to end his support for the cease fire. And
20 these defendants, the evidence will show, did not disappoint.
21 You will learn that Sattar, Stewart, and Yousry repeatedly
22 shuttled secret messages between Taha and Abdel Rahman,
23 messages that led Abdel Rahman to end his support for the cease
24 fire, messages that handed Taha the momentum that he needed to
25 return the Islamic Group to the spilling of blood, messages
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1 that never would have been passed between these two terrorists
2 without the criminal determination of Sattar, Stewart, and
3 Yousry, who the evidence will establish knew exactly what they
4 were doing.
5 Let's talk about the message pipeline created by these
6 defendants in early March of 1999, the last event on this time
7 line. The defendants Stewart, and Yousry met with Abdel Rahman
8 in a federal prison in Rochester, Minnesota. What happened
9 during this meeting? Well, the defendants, all three of them,
10 pass along a message from Islamic group members to Abdel Rahman
11 asking his permission to form an Islamic Group political party
12 in Egypt. How? Sattar got the messages from overseas to
13 Yousry. Yousry in prison, Yousry presented it back to Sattar,
14 Abdel Rahman responded. Yousry presented it back to Sattar and
15 Sattar disseminated it overseas, a clear violation of the law.
16 What was Abdel Rahman's view on an Islamic Group
17 political party? He flatly rejected the idea. In other words,
18 we will prove to you that Abdel Rahman from prison and while
19 subject to the SAMs, with the assistance of these defendants,
20 directed the Islamic Group to remain outside the law, to remain
21 a terrorist organization. During this same meeting Abdel
22 Rahman also responded to a request, one brought into the prison
23 by Yousry and Stewart from Taha asking Abdel Rahman to end the
24 cease fire. Abdel Rahman stated in his response to Taha:
25 "they, the Islamic Group prisoners in Egypt, are calling for
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1 stopping the violence, and you, Taha, do not agree."
2 Exercising his leadership skills, Abdel Rahman
3 responded that Taha should give the leaders in prison some more
4 time, the ones who had proposed the cease fire. He said, maybe
5 the government of Egypt promised them something that we are not
6 aware of. But he concluded his message to Taha from prison
7 under SAMs by saying: "No new agreement or charter and nothing
8 should be done without my consultation or without my
9 knowledge."
10 There you have it. The evidence will show that Abdel
11 Rahman was giving orders to his terrorist followers from a
12 federal prison in the United States courtesy of these
13 defendants under SAMs, under prison restrictions designed to
14 prevent exactly that conduct.
15 Unfortunately, it did not stop there. In September of
16 1999, there is a new section of the time line that just flashed
17 up on your screens here. The press reported that four Islamic
18 Group members were killed during a shootout with Egyptian
19 authorities. This incident outraged Sattar and Taha. Sattar,
20 who had up to this point been a moderate supporter of the cease
21 fire, now wanted the cease fire to end. Sattar joined Taha.
22 They wanted revenge, they wanted action. And to achieve those
23 ends they needed something else that was extremely important to
24 them. They needed Abdel Rahman's support.
25
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1 And, as the evidence will show, they succeeded. How?
2 Well, shortly after these articles appear, the ones about the
3 deaths of the four Islamic Group members, the defendant Yousry
4 and a different lawyer for Abdel Rahman, not Lynne Stewart,
5 visited Abdel Rahman in prison again in Rochester. During this
6 visit Yousry read Abdel Rahman news reports about the shooting,
7 the same one that had so enraged Sattar and Taha. Abdel Rahman
8 was angered by these reports as well. So angry, in fact, that
9 he dictated a statement to Yousry -- yet another clear-cut
10 violation of the law.
11 You will see that statement here in evidence. In that
12 statement, which Yousry passed onto Sattar, and Sattar passed
13 onto Taha, Abdel Rahman demanded that the Islamic Group review
14 the cease-fire and, further, and more importantly, stated that
15 they should consider themselves free from it. It no longer
16 applied.
17 That was precisely what Sattar and Taha wanted --
18 Abdel Rahman's support. Sattar and Taha, you will learn,
19 discussed how to release a statement to the media so the entire
20 Islamic Group could hear that their leader had told the Islamic
21 Group that it was free to return to violence. They agreed that
22 it was safer to do so through the lawyers. But in stark
23 contrast to what Lynne Stewart would do in June of 2000, the
24 evidence will show that the lawyer who went on this visit
25 refused to authorize the release of Abdel Rahman's call to end
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1 the cease-fire to the press. Why? The evidence will show that
2 the lawyer knew that releasing Abdel Rahman's statement to the
3 press would have constituted a clear and obvious violation of
4 the SAMs.
5 The evidence will show that that lawyer, like Stewart,
6 had agreed in writing that he would not do such things.
7 The evidence will show that releasing a statement like that
8 from Abdel Rahman was illegal.
9 Now, Sattar and Taha were in a bind. How could the
10 sheikh's message, his green light for terrorist operations,
11 best be communicated to terrorists? They needed a press
12 release. And the evidence will show that that was exactly what
13 Lynne Stewart was about to give them. The next prison visit to
14 Abdel Rahman was in February of 2000. Before this visit Taha
15 asked Sattar to have a message, something he called a poetry
16 line, conveyed to Abdel Rahman during the next visit. This
17 time, however, Yousry was accompanied by a third Abdel Rahman
18 attorney. And, as you will learn, Abdel Rahman didn't
19 completely trust this lawyer. And because this lawyer spoke
20 some Arabic, when he was out of the room Abdel Rahman told
21 Yousry that he was not comfortable writing in the presence of
22 this lawyer. Thus, Abdel Rahman did not dictate during this
23 visit any statements.
24 Following the visit, however, the evidence will show
25 that Sattar spoke to a senior leader of the Islamic Group
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1 overseas and relayed what happened during the visit. Sattar
2 explained that there had been complications due to the fact
3 that the attorney who went on the visit would not allow Yousry
4 to read the letter to Abdel Rahman for fear that they would get
5 caught and lose everything.
6 Sattar told this Islamic Group leader that this lawyer
7 said that he would not allow messages to be passed because he
8 had signed an agreement saying that he wouldn't do such things.
9 The exact same agreement that, the evidence will show, Lynne
10 Stewart signed.
11 Sattar stated to this Islamic Group leader that he was
12 mad at this other lawyer. And he didn't intend to send him on
13 the next visit -- Sattar controlling the legal team.
14 Sattar stated that Abdel Rahman's other lawyers allowed
15 messages to be passed during prison visits. Specifically you
16 will learn that Sattar told that Islamic Group leader "they
17 tell you" -- referring to the lawyers -- "say what you want, do
18 what you want and write what you want. They even go out from
19 his place and hold press conferences and talk."
20 And so with the failed February visit behind them,
21 Sattar began making plans for another prison visit. His plans
22 included his sure thing -- Lynne Stewart. Sattar knew that
23 Stewart would get the necessary messages to Abdel Rahman and
24 that she would talk to the media. That visit happened in May
25 of 2000. On May 16, 2000, Lynne Stewart signed an affirmation
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1 under penalty of perjury saying that she would not use her
2 visits and contact with Abdel Rahman to pass messages between
3 Abdel Rahman and third parties, including the media. She also
4 agreed to only use interpreters -- Yousry -- to communicate
5 with Abdel Rahman concerning legal matters. A mere three days
6 later, on May 19, 2000, Lynne Stewart broke her sworn agreement
7 with the government, and in the process she broke the law.
8 The evidence will show that Stewart and Yousry worked
9 together during this visit to pass messages to and from Abdel
10 Rahman, messages that the evidence will show had absolutely
11 nothing to do with legal matters.
12 Let me just pause here for a second.
13 There is absolutely no dispute that Lynne Stewart is a
14 lawyer and that she was Abdel Rahman's lawyer. Indeed, the
15 fact that Lynne Stewart is a lawyer is particularly relevant
16 though to this case. Why? Several reasons.
17 One, as a result of being Abdel Rahman's lawyer
18 Stewart knew all about Abdel Rahman's criminal history. She
19 sat through his criminal trial. She watched as he was
20 convicted and sentenced to life in prison.
21 Second, you will learn that Stewart actually used her
22 status as a lawyer to commit the crimes charged in the
23 indictment. She used her status as a lawyer to have access to
24 Abdel Rahman. She used her status as a lawyer as a cloak to
25 smuggle messages into and out of prison. In short, she used
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1 her status as a lawyer to Abdel Rahman to allow him to incite
2 terrorism. And that, the evidence will show, is against the
3 law for anyone to do -- lawyer, doctor, priest, postal
4 worker -- anyone. Other than that Stewart's status as a lawyer
5 is irrelevant to this case.
6 Now, back to the May 2000 visit.
7 One of the first things that happens during this visit
8 is that Yousry told Abdel Rahman about a kidnapping that
9 happened in the Philippines by the Abu Sayyaf terrorist group.
10 Yousry told Abdel Rahman that the terrorists in the Philippines
11 had demanded his release from prison in exchange for their
12 hostages. And then the evidence will show that Yousry told
13 Stewart about the kidnapping and the demand for Abdel Rahman's
14 release. And in what can only amount to a snapshot of Lynne
15 Stewart's intent and her perspective, Stewart said, "good for
16 them."
17 The evidence will show that what Lynne Stewart was
18 saying was good for the Abu Sayyaf terrorists, good for them
19 for taking hostages, good for them for demanding the release of
20 Abdel Rahman -- good for them.
21 The prison visit continued. A short while later Abdel
22 Rahman asked Stewart, through Yousry, what the future held for
23 his case. Stewart referred to the Abu Sayyaf kidnapping. She
24 told Abdel Rahman that although what had happened in the
25 Philippines was unlikely to get him out of jail, it kept his
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1 name alive as a hero of the jihad warriors and that that "was
2 very, very crucial."
3 In other words, the evidence will show that Lynne
4 Stewart's message to Abdel Rahman was terrorism carried out in
5 your name is good for your case. Later, during that day's
6 visit, Yousry read Abdel Rahman's statement, written by Taha,
7 that had appeared in an Arabic newspaper. While Yousry was
8 reading this article to Abdel Rahman he noticed that the guards
9 outside the prison meeting room had started to come close to
10 the window. Realizing that what he was doing was in violation
11 of the SAMs, Yousry asked Stewart to act like she was involved
12 in their conversation. What did Stewart do? She starts
13 acting. She began to pretend that she was conducting legal
14 business with Abdel Rahman.
15 This fact is made perfectly clear by the evidence that
16 you will see. How? Well, the evidence will show that at one
17 point Stewart actually commented that she could get an award in
18 acting for her performance in covering up the illicit
19 conversation that Sattar was having with Abdel Rahman right
20 there in the prison.
21 And then comes the most crucial part of the visit.
22 The evidence will show that Lynne Stewart pointed to a letter
23 from Sattar to Abdel Rahman and told Yousry to read it. Abdel
24 Rahman, she told him, needed to think about it overnight before
25 the next day's visit. As Yousry was reading this letter to
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1 Abdel Rahman, he suddenly stopped and told Stewart that the
2 guards were coming close again. And he needed her to talk.
3 Stewart then tapped on the letter with her pen and said,
4 referring to the guard, "If he finds out what this is, then we
5 are" -- and Yousry finished her sentence -- "in trouble."
6 Stewart responded, "Yeah, that's right." And then they
7 laughed. They laughed at how they were breaking the law.
8 Yousry continued reading Sattar's letter. Stewart stopped him
9 from time to time to continue the charade that they were
10 conducting legal business. Then Yousry read Abdel Rahman the
11 crucial part, the message in Sattar's letter from Taha in which
12 Taha asked Abdel Rahman to have a more forceful position to
13 approve a call for the cancellation of the cease-fire and to
14 make threats and to escalate the situation in Egypt. Sattar
15 through this letter implored Abdel Rahman "Please, your
16 eminence, say your opinion about this, dictate some points that
17 we can announce in a press conference with Lynne. If you don't
18 want to announce it" -- and there is an unintelligible --
19 "please let Lynne know that."
20 Lynne of course is Lynne Stewart.
21 The next day, May 20, 2000, Stewart and Yousry return
22 to the prison for a second day of visits. During this day
23 while Stewart continued her acting performance, Abdel Rahman
24 dictated many letters to Yousry, all of which were violations
25 of the law. One of those letters was a response to Taha. What
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1 was that response? Well, during the visit Abdel Rahman
2 dictated his opinion to Yousry and although Abdel Rahman's
3 words and thoughts on the subject were scattered throughout the
4 visit, Yousry and Stewart distilled it to a simple fact. What
5 was that fact? On June 13, 2000, in what amounted to yet
6 another clear violation of her agreement with the United States
7 not to pass messages between third parties and Abdel Rahman,
8 Stewart announced Abdel Rahman's position to the world. On
9 that day Stewart issued a statement to the press in which she
10 stated "Abdel Rahman is withdrawing his support for the
11 cease-fire that currently exists." In other words, Stewart
12 told the world that Abdel Rahman supported a return to
13 violence.
14 Now, in her announcement Stewart did not say expressly
15 "Abdel Rahman orders you to resume killing people." That is
16 not necessary. His words were clear. And with the
17 announcement Taha and Sattar obtain what they had long
18 wanted -- courtesy of Lynne Stewart and Mohammed Yousry --
19 Abdel Rahman's public pronouncement that he no longer supported
20 the cease-fire.
21 Taha and Sattar now had the backing that they needed
22 to go out and resume terrorism.
23 The evidence will show that Lynne Stewart knew that
24 what she had done was wrong. How can we prove that? She said
25 as much. The next day, the day after she issues her press
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1 release, Lynne Stewart calls Sattar at home. He was out.
2 Stewart spoke with Sattar's wife. During this call Sattar's
3 wife told Stewart that her press release was the top story in
4 the Middle East. Stewart responded by saying, "oh, brother."
5 Stewart told Sattar's wife that she didn't think that she would
6 be able to hide her conduct from the government and, as you
7 know, she was right. Sattar's wife asked Stewart if she was
8 going to get in trouble and Stewart replied "Probably. We will
9 deal with that too. Maybe it's the right thing. Then we can
10 fight the sheikh's fight on that ground too, you know."
11 In sum, Stewart knew that the release of Abdel
12 Rahman's statement was illegal. Why? Because it was a call
13 for violence by the leader of a terrorist organization. It was
14 also a major victory for Sattar and Taha. Sattar and Taha were
15 now emboldened by Abdel Rahman's decision to end his support
16 for the cease-fire. But they had a problem. Taha was in
17 Afghanistan. Sattar was in New York City. They needed someone
18 on the ground in Egypt to do their bidding. That someone is
19 named Atia.
20 He was, the evidence will show, the military leader of
21 the Islamic Group in Egypt. Beginning in September of 2000
22 there are a series of telephone calls between Taha, Sattar,
23 Atia, and people associated with Atia. These calls are
24 critical. They provide a clear insight into Sattar and Taha's
25 evil designs. You will learn that the participants in these
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1 calls are highly suspicious of government monitoring of their
2 telephone. They talk in code. They talk vaguely, but the
3 message that is conveyed back and forth is clear as a bell.
4 You will learn that Taha, inspired by Abdel Rahman's support,
5 told Atia that the only barrier to performing an act of
6 terrorism was the Group's capability. No cease-fire --
7 capability.
8 You will also learn that Atia told Taha and Sattar
9 that he had "big surprises" in store and that he "hoped that
10 our brothers will help us to surprise our enemy with a fatal
11 attack."
12 You will hear that Atia wanted Sattar and Taha to know
13 that he, Atia, and his people, had credentials. They were
14 involved, he told them, in numerous terrorist operations,
15 including the attack at Luxor that I described to you a few
16 moments ago.
17 You will learn that Sattar and Taha both knew that
18 Atia was the military leader of the Islamic Group in Egypt.
19 And they wanted to assess his capabilities to commit a
20 terrorist attack. No amount of careful talking can conceal
21 that fact.
22 What else happened in September 2000? Well, you will
23 learn that on September 21, 2000, on an Arabic television
24 station, a speech by Osama Bin Laden and Taha sitting together
25 under a banner entitled Convention To Support Honorable Omar
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1 Abdel Rahman, during the speech the participants pledged to
2 free Abdel Rahman from prison. They talked about the necessity
3 of doing it. During the meeting Mohammed Abdel Rahman, a son
4 of Sheikh Abdel Rahman, was heard encouraging others to "avenge
5 your sheikh" and "go to the spilling of blood."
6 You will see a copy of that video here in court and
7 you will hear that Taha and Sattar discuss the speeches over
8 the phone. In fact, Taha, you will learn, called Sattar as
9 Sattar was watching Taha on television making the speech. You
10 will also hear that Mohammed Abdel Rahman, the sheikh's son,
11 called Sattar to talk about the speech. Still more evidence
12 that Abdel Rahman inspires terrorists and the spilling of
13 blood, even while in jail supposedly cut off from the outside
14 world.
15 And then Taha and Sattar took a giant leap towards
16 terrorist violence. Right in the middle of their ongoing
17 contact with Atia and just two weeks after the Bin Laden-Taha
18 video aired, Taha and Sattar agreed together to issue a lethal
19 fatwah -- and Islamic edict -- in Abdel Rahman's name.
20 The evidence will show at Sattar's direction Taha
21 drafted a fatwah and e-mailed it to Sattar. Sattar edited the
22 fatwah and then sent it to an associate in London who
23 distributed the fatwah to the press. I mentioned this fatwah
24 to you at the beginning when I introduced Sattar to you. This
25 is one of the clearest examples of Sattar's perspective and
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1 intent. In this fatwah, which the evidence will show Sattar
2 and Taha issued under Abdel Rahman's name because they knew
3 that Abdel Rahman inspired terrorism, Sattar and Taha called on
4 Muslims everywhere to "fight the Jews and kill them wherever
5 they are and wherever they are found." The fatwah also
6 directed Muslims to attack Jews and, in a clear reference to
7 the United States, also urged attacks on those who support the
8 Jews.
9 The evidence will clearly demonstrate that Sattar and
10 Taha wanted this fatwah to be executed. They wanted Jewish
11 people and Americans to die. Yousry told Abdel Rahman about
12 the fatwah during an attorney telephone call and Abdel Rahman
13 endorsed it. Then Yousry told Stewart about the fatwah and
14 Abdel Rahman's reaction to it. Stewart told Yousry if the
15 Sheikh didn't issue it but he wanted to adopt it, then "she was
16 for it too."
17 During this call Yousry told Stewart that one of Abdel
18 Rahman's other lawyers was very worried about the fatwah. In
19 response Stewart says to Yousry "Does he really think that the
20 American government can completely put this man in an iron box
21 and cut him off from the whole world?" Stewart later told
22 Yousry during the same conversation that she had a different
23 position on this issue and that her position was that Abdel
24 Rahman "is going to get his message out no matter what." Her
25 words, no interpretation necessary.
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1 Now, despite her sworn agreement, despite the law, she
2 was going to get the sheikh's message of hate and terror out to
3 the world no matter what. The very day after the fatwah was
4 published Sattar read a newspaper article to Taha. That
5 article identified Atia as the leader of the Islamic Group
6 military wing in Egypt.
7 Taha commented that the writer of that article had
8 really good information. Three days later Taha called Sattar
9 and told Sattar that he should contact Atia and tell them about
10 the fatwah, the one demanding the murder of the Jews, and,
11 further, to tell them that they are to go by it. And what did
12 Sattar say? He agreed. In other words, unequivocal, explicit
13 evidence will demonstrate that Taha and Sattar agreed that
14 Sattar would instruct the person that they both knew to be the
15 military leader of the Islamic Group to kill people. And that
16 is exactly what Sattar did. Sattar passed on these deadly
17 instructions in early October 2000.
18 Now, October was a busy time for Sattar and Taha and
19 Atia. Phone calls were exchanged on a daily basis. And then
20 on October 19, 2000 Sattar got the news, Atia was in the
21 hospital. The evidence will show that is a code word for
22 prison. Or, he was told, perhaps something worse happened. As
23 it turns out, you will learn that Atia was dead. He had been
24 killed during a shootout with Egyptian authorities on October
25 18, 2000. Atia's death triggered numerous phone calls and
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1 accusations against Sattar and Taha by other members of the
2 Islamic Group. Sattar and Taha were blamed for Atia's death,
3 blamed because they were not careful on the telephone; blamed
4 because it was believed that Sattar and Taha were pressuring
5 Atia to conduct a terrorist operation.
6 Taha and Sattar had a lengthy conversation about what
7 led to Atia's death. They discussed how such mistakes could be
8 avoided in the future. And they talked about Atia. They
9 referred to him as a martyr.
10 Is Atia's death the end? Nope. What else happened in
11 October 2000? Well, you know Taha and Bin Laden appeared on TV
12 together and urged jihad to free Abdel Rahman. Taha and Sattar
13 had written and published the fatwah in Abdel Rahman's name to
14 murder Jewish people and all the phone calls back and forth
15 between Sattar, Taha and Atia -- well, something else happened
16 in October 2000 that is important to this case. In mid-October
17 the press reported that on October 12, 2000, in the Middle
18 Eastern country of Yemen, an American Navy destroyer called the
19 USS COLE was bombed and sailors were killed and injured.
20 How did this affect Taha and Sattar? They saw these reports as
21 an opportunity, an opportunity to try to spring Abdel Rahman
22 from prison.
23 In a telephone call several days after the reports of
24 the bombing -- a call that occurred over someone else's cell
25 phone because of Sattar and Taha's fear of surveillance -- Taha
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1 told Sattar that the bombing of the Cole "was not far from us."
2 And that he wanted to convey a threat to the United States
3 government that "the problems are related to the man that they
4 are holding -- Abdel Rahman. If his conditions are
5 straightened out, it will follow that other things will get
6 straightened out also." They were talking about Abdel Rahman.
7 And these facts take on particular import in the next prison
8 visit to Abdel Rahman, which was in July of 2001.
9 In May of 2001, after months of negotiations with the
10 government, Lynne Stewart signed a new affirmation in which she
11 agreed once again to abide by the SAMs, in which she agreed
12 once again not to pass messages between Abdel Rahman and third
13 parties, in which she agreed once again to use interpreters for
14 legal matters. This time she specifically stated in the
15 agreement "I understand that Abdel Rahman has been convicted of
16 terrorism offenses, including soliciting crimes of violence,
17 and that terrorist actions have been carried out by persons
18 using his name, including the killing of approximately 60
19 tourists in Luxor, Egypt in November of 1997 and the kidnapping
20 of tourists in the Philippines in the spring of 2000. I
21 understand that the United States is concerned that a violation
22 of the SAMs, including but not limited to dissemination of
23 messages on behalf of Abdel Rahman, can lead to violence to
24 persons or property here in the United States or overseas."
25 Then in July of 2001, the first prison visit to Abdel Rahman
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1 since May of 2000, since Stewart released his statement to the
2 media, Stewart broke her sworn agreement again along with
3 Yousry. During this visit Yousry and Stewart decided to tell
4 Abdel Rahman about the Cole bombing and the call that Sattar
5 had received from Taha, even though Stewart and Yousry knew
6 that doing so was yet another violation of the prison
7 restrictions and was, as a result, illegal.
8 How are we going to prove to you that they knew that
9 what they were doing was a violation? Well, as Yousry relayed
10 the information to Abdel Rahman telling Abdel Rahman that the
11 Cole was bombed for him and about the phone call that Sattar
12 had received, Stewart once again donned her acting cap and
13 resumed her role as a cover to conceal the conversations from
14 the prison guards. In fact, you will see that this time
15 Stewart doesn't even bother to pretend that they are discussing
16 legal matters. She literally says, as she is holding a water
17 jug and shaking it "I am just doing covering noises." They
18 also passed, during this visit, messages to Abdel Rahman about
19 the cease-fire again, specifically a letter from Abdel Rahman's
20 son containing a request -- the son who called for the spilling
21 of blood in the Bin Laden-Taha video -- asking Abdel Rahman to
22 continue to oppose the cease-fire.
23 Well, I can go on but I think I have given you enough
24 for this morning. You know all about Abdel Rahman. You know
25 about Taha, the cease-fire, the Islamic Group. You know about
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1 the prison restrictions, the SAMs, how the messages were passed
2 during the various visits. You know how these defendants
3 helped Abdel Rahman end his support for the cease-fire. You
4 know about the calls between Taha and Sattar and Atia, the Bin
5 Laden video pledging to release Abdel Rahman. You know about
6 the fatwah that Taha and Sattar wrote in Abdel Rahman's name.
7 And you know how Sattar and Taha discussed using the Cole
8 bombing to free Abdel Rahman.
9 What you don't know is how we are going to prove all
10 these facts and events to you. Well, you have actually
11 probably figured it out by now. You will hear recordings of
12 the defendants committing these crimes. The evidence in this
13 case consists largely of the defendants' own secretly recorded
14 words -- words that you are going to see and hear in the form
15 of transcripts right here in this courtroom. Because what
16 Ahmed Abdel Sattar did not know, although he was suspicious,
17 was that since November of 1998, and sporadically before that,
18 the FBI with court authorization was listening to and recording
19 his telephone calls, monitoring his Internet usage and his
20 e-mail account and his fax machine.
21 And what the surveillance reveals is an astonishing
22 glimpse inside a terrorist network, a network in which Sattar
23 was a critical member playing a crucial role and, likewise,
24 what Lynne Stewart and Mohammed Yousry did not know after
25 monitoring Sattar's communications the FBI obtained court
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1 authorization to record their prison visits and telephone calls
2 with Abdel Rahman. In other words, what the defendants didn't
3 know is that they were caught -- caught in the act, caught in
4 the act of smuggling messages, caught in the act of trampling
5 the prison restrictions, caught in the act of effectively
6 breaking Abdel Rahman out of jail.
7 We will prove to you that the defendants allowed Abdel
8 Rahman to continue to lead his terrorist network from prison
9 and to participate in a conspiracy to kill and kidnap people.
10 As a result of this surveillance, you will learn that Sattar
11 used his telephone as a communications hub for the leaders of
12 the Islamic Group to keep in touch. He used his phone to patch
13 leaders of the group together overseas so they could discuss
14 Islamic Group policy, the cease-fire, newspaper articles in
15 which they were quoted, Abdel Rahman, terrorism.
16 You will hear Sattar read the fatwah that he issued,
17 the one urging the killing of Jews, over the phone. You will
18 hear his calls with Atia, the leader of the Islamic Group's
19 military in Egypt, and Atia's associates. You will hear Sattar
20 and others discuss the fact that they believed that Sattar's
21 phone is wiretapped and that they need to be careful when they
22 are talking. Through these calls you will learn that Taha is
23 in Afghanistan with Osama Bin Laden and that he is militant,
24 that he opposes the cease-fire, that he wants a terrorist
25 operation to occur.
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1 You will also learn that Sattar is well versed in the
2 prison restrictions. He knows all about them -- what you can
3 do and what you can't do. He talks about them over the phone.
4 In short, you will hear a lot of evidence intercepted over
5 Sattar's telephone.
6 You will also hear and see video and audio of some of
7 the prison visits. Specifically you will see and hear the May
8 2000 visit. You will see and hear Stewart approve of the Abu
9 Sayyaf kidnapping in Abdel Rahman's name. You will see and
10 hear Stewart acting to distract the guards while Yousry reads
11 forbidden letters to Abdel Rahman. You will see and hear
12 Yousry ask Stewart to act like she is participating in their
13 conversations to cover up the illicit conversations that they
14 are having. You will see and hear Stewart during the July 2001
15 prison visit shaking a water jug and stating that she is making
16 covering noises as she is doing it. You will see and hear
17 Yousry whispering to Abdel Rahman about the cease-fire.
18 You will also see a lot of documents recovered during
19 search warrants executed at various places. In fact, among
20 other things, you will learn that Sattar possessed a tape
21 recording of Abdel Rahman issuing the fatwah that I quoted to
22 you at the very beginning of my opening statement, the one
23 about sinking ships, shooting down planes, and killing
24 Americans.
25 In sum, you will hear and see articles, messages,
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1 notes, e-mails, faxes, transcripts and recordings all
2 establishing that these defendants knew that Abdel Rahman was
3 the leader of a violent international terrorist organization
4 and that he was saying to his terrorist organization he
5 believed they should end the cease-fire. In other words, that
6 he was saying to his terrorist organization "Fire."
7 Now, you may be wondering why did the government let
8 Lynne Stewart and Yousry back in in July 2001 after they broke
9 the law by violating the prison restrictions in releasing Abdel
10 Rahman's withdrawal support for the cease-fire. The answer is
11 that the wiretaps on Sattar's phone and the bugs in the prison
12 meeting rooms were done in connection with an intelligence
13 investigation, not a criminal investigation. An intelligence
14 investigation is just that, an investigation to gather
15 intelligence for national security purposes.
16 You will learn that as a result the government did not
17 want to end the intelligence investigation until it was no
18 longer getting useful intelligence about the activities of
19 Sattar and the Islamic Group. As a result, the criminal
20 investigation and any consideration of charges were put on hold
21 due to a fear that the criminal investigation could possibly
22 blow the intelligence investigation.
23 Now, I have really just thrown a lot of facts at
24 you -- facts that I submit you will find are clearly
25 established by the evidence that you will see and hear. And
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1 what do these facts add up to? I submit that they will show
2 that Sattar was a communications center for terrorists,
3 connecting them with Abdel Rahman and each other. As a result
4 of that role, the evidence will prove that Sattar became
5 aligned with Taha in the militant side of the Islamic Group --
6 the militant, anti-American, anti-Jewish terrorist leader who
7 wanted the cease-fire to end and the killing to resume. The
8 evidence will show that Sattar and Taha enlisted Abdel Rahman's
9 support to resume terrorism, and together Taha, Abdel Rahman
10 and Sattar were members of a criminal agreement to kill and
11 kidnap people in a foreign country.
12 The evidence will also show that Stewart and Yousry
13 supported the Taha-Sattar-Abdel Rahman agreement to kill and
14 kidnap. They supported it by making Abdel Rahman available to
15 participate in that agreement, the otherwise inaccessible Abdel
16 Rahman.
17 This is going to be a long trial and chances are there
18 are many times when it's not going to be particularly exciting.
19 There will be a lot of reading, and when I say "a lot," I mean
20 a lot. Because, as you know, the principal witnesses to these
21 defendants' crimes are audio tapes and videotapes. Because
22 most of the conversations are in Arabic and because a lot of
23 the prison visits are also in Arabic, we will need to read
24 transcripts of these recordings to you. You will see a lot of
25 transcripts. That is simply the only reasonable way that we
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1 can present this evidence to you. The crimes were committed to
2 a large extent in a different language.
3 Let me tell you what you are not going to see. You
4 are not going to hear from one witness who will know everything
5 about this case. As you know, much of the evidence consists of
6 video and audio recordings, objective proof of the defendants
7 caught in the acts of committing these crimes. Some of these
8 calls are coded and they are cryptic. But the defendants knew
9 that they had to be sneaky because they were concerned about
10 monitoring. But taken altogether, we expect the meanings of
11 these recordings to be crystal clear to you.
12 Keep in mind that as you hear the evidence one witness
13 who testifies about one aspect of the case may know absolutely
14 nothing about another aspect of the case. The evidence of the
15 crimes charged in this case was gathered over a period of many
16 years, from many places, and it involves many individuals.
17 That is why it's important that you look at the totality of the
18 evidence and try, as it's coming in, to place it in the
19 framework that I have tried to give you here this morning. And
20 with respect to a particular piece of evidence or many pieces
21 of evidence you can't figure out how it fits in, don't worry
22 about it. By the end of the case when you begin your
23 deliberations it will all come together -- the calls, the
24 documents, the witnesses -- all come together to give you a
25 clear picture of what these defendants did. And when all those
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1 pieces of evidence are stitched together they will be just as
2 clear as if one witness had sat in that witness chair right
3 there and told you the whole story from start to finish.
4 Additionally, at the end of the case after all the
5 evidence is in, my colleagues will have a chance to stand up
6 here and explain to you and argue to you what the evidence
7 shows -- tell you how it all fits together.
8 Keep in mind that the evidence is what the witnesses
9 and the exhibits tell you. The evidence is not what comes out
10 of the lawyers' mouths during questioning of witnesses or
11 arguments. Don't be distracted by that. Focus on the
12 evidence, the overwhelming evidence of the defendants' guilt.
13 I also ask you to listen carefully to Judge Koeltl's
14 instructions on the law. But, most of all, I ask you to use
15 your common sense, as Judge Koeltl did earlier. There is no
16 sign on the door to the jury room that says check your common
17 sense with the marshals.
18 I submit to you that if you focus on the facts and the
19 law, and if you use your common sense in considering the
20 evidence, you will return the only verdict in this case that is
21 consistent with the law and the evidence. You will find beyond
22 a reasonable doubt that these defendants are guilty of the
23 crimes with which they are charged.
24 Thank you for your attention.
25 (Continued on next page)
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1 THE COURT: Ladies and gentlemen, it is about 12:50,
2 so it is about time for us to break for lunch. I am told that
3 your lunch should be here shortly, so we will break for lunch
4 until 2:00.
5 Please, please remember my continuing instructions,
6 very important, don't talk about this case at all or anything
7 to do with it. Remember always to keep an open mind until you
8 have heard all of the evidence, I've instructed you on the law
9 and you've gone to the jury room to begin your deliberations.
10 Have a good lunch and I look forward to seeing you
11 after lunch.
12 (Jury not present)
13 THE COURT: There are logistics matters that I wanted
14 to talk to the lawyers about for a moment, if I could.
15 (At the side bar)
16 THE COURT: I could have announced this at the bench.
17 You are welcome to have your clients here and I will listen to
18 thoughts about the way I should convey matters such as this to
19 you. The juror who is seated in chair No. 15, No. 387, has a
20 wedding and expects to leave at 3:00 from Newark on July 1. I
21 have not checked the calendar to see what day.
22 MS. BAKER: That's a Thursday.
23 THE COURT: I know I was going to take a long July 4
24 weekend, in any event.
25 The second thing is that Mr. Grate informed me that
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1 one juror had to take a very expensive cab to get to the van
2 this morning because a train wasn't available that early in the
3 morning to get to the van. So I authorized a cab fare and
4 asked Mr. Grate to see if the marshals can't work out a better
5 way.
6 (Luncheon recess)
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1 AFTERNOON SESSION
2 2:15 p.m.
3 (In open court; jury not present)
4 THE COURT: Let's bring in the jury, please.
5 (Jury present)
6 THE COURT: Good afternoon, ladies and gentlemen. The
7 opening statement on behalf of Ms. Stewart will be given by
8 Mr. Tigar.
9 Mr. Tigar.
10 MR. TIGAR: Thank you very much, your Honor. I do
11 have something to say. Members of the jury, for 40 years in
12 this town Lynne Stewart right here has been building for
13 justice and not for terror. And when the end of the case comes
14 and I stand before you, I submit that the evidence will show
15 that anybody who says different, claims different, argues
16 different, either sees these things very differently, is
17 relying on faulty intelligence or is acting from an outright
18 desire to mislead you.
19 Before I talk about what I think will be the evidence
20 in the case as a whole, I would like your indulgence to talk
21 about three things that may have some particular impact on you
22 as the evidence is presented.
23 The first of these is a report that a group of
24 terrorists in the Philippines had kidnapped some hostages. The
25 group was called Abu Sayyaf and they did it claiming that they
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1 were doing it for Sheikh Abdel Rahman, who had nothing to do
2 with it. The evidence will not be that he had anything to do
3 with it. There won't be any evidence or any claim that Lynne
4 Stewart had anything to do with it, but she did report it to
5 her client because it was something being done in his name and
6 there will be a tape recording or a recording in evidence of
7 that conversation. And that that tape recording she did not
8 approve in any way of what had happened.
9 The recording, which is made by imperfect technology,
10 shows that she said that it was a good thing it had been
11 reported, and then Mr. Yousry goes on to tell about the
12 kidnapping. And Lynne Stewart's voice is heard with crystal
13 clarity: That's so sad, that's so sad.
14 When I say her voice, it brings up something that's a
15 kind of irony. For 40 years, more than 25 of them as a lawyer,
16 Lynne Stewart has not been bashful about speaking for herself.
17 But now she has to rely on Ms. Shellow-Lavine and myself to
18 speak for her. We are going to do something about that. When
19 it is our turn she is going to get up from that chair, she is
20 going to walk over here, place her hand on the book and tell
21 you what happened from her perspective.
22 Now, the second thing I want to talk about by way of
23 introduction is this idea that maybe coming out here in the
24 evidence that the government wanted to put Sheikh Abdel Rahman
25 in jail and throw away the key, utterly silence his voice.
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1 Members of the jury, that is nonsense, it didn't happen, that
2 won't be the evidence.
3 What will the evidence be? In 1997, shortly after the
4 special administrative measures had been imposed, the SAMs,
5 Sheikh Abdel Rahman met in prison with his lawyer, Ramsey
6 Clark, who was one of the lawyers. Ramsey Clark, that's a name
7 you might know. He was Attorney General of the United States
8 during the administration of Lyndon Johnson, President Johnson.
9 He was a strong law and order attorney general and he is now in
10 private practice.
11 Ramsey Clark met with Sheikh Rahman, his client, and
12 Sheikh Rahman said, I support nonviolence in Egypt. There will
13 be a lot of evidence in here about Egyptian politics. Thank
14 heavens we don't have to learn about Egyptian politics, but
15 there will be some. I support nonviolence in Egypt. Ramsey
16 Clark then, on the 21st of August 1997, caused that statement
17 to appear in the Cairo Times by way of helping to cool a
18 situation, a very volatile political situation in Egypt.
19 Now, around that time, this is pretty early in the
20 time that Sheikh Abdel Rahman is in prison. He is in prison in
21 Missouri, Springfield, prison hospital, and he is complaining
22 very loudly about his treatment. He is blind, he is diabetic
23 and he has a heart condition. A lot of his complaints may not
24 have any basis because being blind he can't see, obviously, and
25 he can't see whether the guards are coming in and out of his
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1 prison cell and he gets very upset when he feels people near
2 him. And he and the guards have had some difficulty, including
3 some allegations that they roughed him up.
4 Well, that dispute then leads Mr. Clark to make a very
5 interesting proposal to the senior federal official, which he
6 does in the fall of 1997. And what is it? It is why don't we
7 take -- send him to Egypt and he can serve his time in the
8 Egyptian prison and he won't be a lightning rod for what's
9 going on here in the United States.
10 Well, the Federal Government at that point does not
11 respond to that proposal. But on the 5th of November 1997
12 Kathleen Hawke, the director of the Federal Bureau of prisons,
13 addresses a memorandum to the Deputy Attorney General of the
14 United States and suggests that the United States Government
15 publicize in the media Sheikh Abdel Rahman's prison situation.
16 So the idea that there were going to be things set out about
17 Sheikh Abdel Rahman was a part of a dialogue that was being had
18 with the government of the United States.
19 Now, what's the next thing that happened? You heard
20 about Luxor. There was -- let me get the date because I don't
21 want to make a mistake here. On the 17th of November 1997, a
22 group of people -- let's call them by their name, terrorists --
23 attacked tourists in Luxor, Egypt and about 60 people were
24 killed. It was horrible. Everything you will hear about,
25 horrible. It is not even alleged that Lynne Stewart had
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1 anything to do with it. It is not alleged that Sheikh Abdel
2 Rahman had anything to do with it. These people did say some
3 of them, we are doing it to free the Sheikh, but he was already
4 on record saying, don't do things like that.
5 In fact, after the Luxor attack the official newspaper
6 of the Islamic Group denounced it and said that it had been
7 wrong and criminal and was going to lead to more trouble. Now,
8 there were some renegades in the Islamic Group and one of them
9 is this fellow Taha, that is true, who would not only agree
10 with the general position that they shouldn't do violence, but
11 what did he do? He abandoned Egypt, trying to improve
12 conditions there. And goes off to Sudan and Afghanistan to
13 join Osama Bin Laden who doesn't have anything interesting or
14 valuable to say about Egypt.
15 The third item, members of the jury, from May of 2000
16 to May of 2001, Lynne Stewart was barred from any contact with
17 Sheikh Abdel Rahman. She wasn't permitted to visit him, she
18 wasn't permitted to talk to him on the phone, and she didn't
19 visit him or talk to him on the phone because she was having a
20 dispute with the government. And believe me, before the week
21 is out we will hear about that from evidence, I predict. She
22 was having a dispute.
23 So the fact that during that time somebody in the
24 Sheikh's name issued some statement, a statement, not some
25 statement, a horrible violent statement calling for violence
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1 has nothing to do with Lynne Stewart. She wasn't any part of
2 it. She didn't approve of it. Indeed, it was not something
3 that she would have done.
4 Those are three introductory points. If you will
5 excuse the rudeness, let me start where I would ordinarily
6 start. May it please the Court, Mr. Sattar, Mr. Yousry, Lynne
7 Stewart, members of the jury, can you see my hand? No, you
8 can't see my hand, not until I have turned it over and showed
9 you both sides can you say that you have seen my hand. And
10 that's not just some lawyer's rhetorical device. It says
11 something about a case. You have just heard an opening
12 statement from a prosecutor. It is what they believe the
13 evidence will show.
14 In fact, I heard somebody say to you about eight times
15 you know, you know, you know, you know, you know in that
16 opening statement. Well, I intend no rudeness when I say
17 members of the jury that you don't know. You don't know. You
18 don't know after I told you. You don't know after Mr. Ruhnke
19 talks or Mr. Paul. You don't know until you have heard
20 evidence. They have the burden of proof here beyond a
21 reasonable doubt and nobody knows anything until they start to
22 try to meet it.
23 So this is Lynne Stewart and Jill Shellow-Lavine's and
24 my promise to you of what we confidently believe and expect
25 that the evidence will show. It is not like a politician's
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1 promise and you hear it and then you vote and then you see if
2 they keep it or not. You won't vote until you hear the
3 evidence and you will see who keeps their promise and who does
4 not before you write the ending of this story with your
5 verdict.
6 Lynne Stewart is not guilty, not guilty. I want first
7 to talk about Lynne Stewart, give you a picture of this person
8 that's sitting here. Before I do that, I want to talk about
9 these charges. Charges are not facts. They are a list of what
10 prosecutors hope to prove beyond a reasonable doubt. Members
11 of the jury, Lynne Stewart did not conspire to defraud the
12 United States. She did not join any conspiracy to assist
13 terrorists. She did not criminally assist any terrorists. She
14 was the courageous and honorable lawyer as provided under our
15 Constitution for an accused terrorist. That's the simple heart
16 of this case.
17 By the time the case is over the evidence will be
18 clear enough that even people who don't like the idea of
19 lawyers for accused people will get it. Lynne Stewart did not
20 make Sheikh Omar Abdel Rahman available to a conspiracy to kill
21 or kidnap people. She did not make statements designed to
22 start senseless violence. In fact, as the evidence will show,
23 she and the other lawyers, including a former attorney general
24 of the United States, worked very hard, and not always under
25 the best of conditions, to keep Sheikh Abdel Rahman's name and
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1 reputation out of any such thing because they were his lawyers
2 and because it was in their interests to do so, even if other
3 people disagreed.
4 Lynne Stewart did not send out, distribute or
5 communicate any messages that called on arms or that called on
6 people to take violent acts. She didn't lie. She did her
7 lawful job as a lawyer. And, yes, as the evidence will show,
8 members of the jury, Lynne Stewart was trying to make America a
9 safer and more just place. She is a lawyer, under difficult
10 circumstances and in times when people question whether people
11 should have lawyers.
12 Let's cull out some of the things that lawyers do.
13 They represent people. They challenge the government. They
14 stand up for their client. But they do so sometimes under
15 difficult conditions. In this opening, as in every other
16 point, I am going to speak to you throughout this case for one
17 person and one person only, Lynne Stewart. There is a lot of
18 evidence in this case that will turn out not to involve Lynne
19 Stewart at all that is not offered by the government about
20 Lynne Stewart.
21 The 1998 so-called fatwah will not be offered as to
22 Lynne Stewart. It will be offered as to somebody else. I
23 predict the judge will give limiting instructions to ask you --
24 to instruct you how to consider that evidence. The case is
25 about three defendants, one, two, three, each entitled to your
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1 separate consideration and, yes, there will be these facts and
2 stories from all over the place, some mural on the wall in a
3 public building of doing this, that and the other thing and
4 over in the corner of the mural there is a hard-working person
5 doing her job and that is Lynne Stewart. Sometimes I may
6 cross-examine a witness simply to show that the evidence that
7 witness offered doesn't have anything to do with Lynne Stewart.
8 There will be days and hours in which evidence will come in
9 that is not being offered as to her.
10 Lynne Stewart was the lead trial lawyer for Sheikh
11 Abdel Rahman. A federal judge in this building appointed her,
12 and former Attorney General of the United States, as counsel.
13 A jury sitting in a room just like this one convicted Sheikh
14 Abdel Rahman of serious crimes, including trying to blow up
15 buildings and advocating blowing up buildings. He was put in
16 prison under a life sentence. These are facts. We are not
17 here to argue about them. We don't challenge them. If anyone
18 wants to provide details about that, so be it. You will hear
19 evidence from that trial. We may present some ourselves to
20 present a full picture.
21 Why would we do that since we don't contest it?
22 First, to present the rest of the story, a full picture, but,
23 second, members of the jury, when you hear about that trial,
24 when you hear about those cross-examinations of government
25 witnesses, when you hear about the challenge of back and forth
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1 of evidence and who lied and who didn't, you will see, we
2 submit, the evidence of a hard-working, honorable lawyer at
3 work, active, articulate, and a constitutionally necessary part
4 of our system.
5 Lynne Stewart believes and throughout her career has
6 believed that if the government wants to put anybody in jail
7 that they better give them a fair trial. She believes that if
8 the government can take anybody they wanted to and just put
9 them in jail and treat them any way they wanted that this
10 country would be a very dangerous place indeed. She believes
11 it is the duty of lawyers to stand up for fair and decent and
12 just and right treatment for her clients no matter how hated
13 they may be and no matter what they have done.
14 She believes that America is made stronger when the
15 world sees that it treats even the most despised people fairly.
16 In every courtroom where Lynne Stewart has ever worked
17 throughout her life there is a judge and there are prosecutors
18 and there are jurors and there are defense counsel. It is not
19 easy sometimes to have any of those jobs because a lot of
20 people tend to mix up the lawyer's duty with the client's
21 alleged behavior.
22 So members of the jury, I want, please, to invite you
23 on a journey to see what was involved in this case in the daily
24 life of a lawyer, what she did, how she did it, and why she did
25 it, and we don't shrink from a discussion of any of it. This
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1 will not be anything like the television lawyer shows, and I
2 don't think it is going to be anything like the lawyer jokes
3 that everybody likes either. This is reality. On trials you
4 see, somebody has to go first. In this case, as in every case
5 where the government is claiming somebody did something wrong,
6 they go first, the prosecutors. Maybe because they have the
7 burden of trying to prove it beyond a reasonable doubt.
8 So when it is our turn we will present evidence and
9 I've told you we will, and we will, to raise those reasonable
10 doubts. But even before it is our turn, we will be
11 cross-examining the witnesses that are presented there to try
12 to bring out some of those reasonable doubts; sometimes just to
13 offer more perspective, sometimes more details and sometimes,
14 though, we will be cross-examining to show that a government
15 witness is biased or prejudiced or even being untruth to you or
16 relying on, as I have said before, faulty intelligence,
17 incomplete information.
18 So in the opening I want to start, let's talk about
19 Lynne Stewart a little bit, then about some of these factual
20 details along the road here. Lynne Stewart is a compassionate,
21 skillful, and brave lawyer. It was 1994. She gets a phone
22 call from the former Attorney General of the United States,
23 Ramsey Clark, who says, will you be lead defense counsel with
24 the trial of Sheikh Abdel Rahman? Lynne Stewart knew a few
25 things about the job that she was being asked to do in a case
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1 of that kind.
2 First, it was a hard case and it would be a long
3 struggle. That was a challenge. But in her law practice,
4 there had been many cases, people that the government had
5 targeted. She was already a known figure in New York, well
6 known for her legal skills. Second, she knew from the
7 beginning, from 1994, before the trial started, she would be
8 doing the case under a microscope. She knew that the media
9 attention would be constant and intrusive, that reporters might
10 write things that were slanted or incomplete or even false, and
11 she accepted that risk because she dealt with high-profile
12 cases before.
13 But also she knew that this would be a high-stakes
14 case for the prosecutors and the defense, all eyes would be on
15 her, including the prosecutors. She knew this was not a big
16 fee case. Eventually, she would be appointed as counsel under
17 the Criminal Justice Act. And she also had to think about the
18 effect of the case on her family and on her career. In 1994,
19 as for all the years before that that she had been in practice,
20 her law office, her modest law office in lower Manhattan, was a
21 place where all sorts of people with troubles would come for
22 help. It was and remains to this day kind of a community law
23 office. When people bring their troubles to Lynne Stewart, it
24 is her job to try to find a way to resolve them; if not, by
25 negotiation, then by trial. So Lynne Stewart is a
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1 compassionate and brave lawyer.
2 I'll say something else about the evidence. Lynne
3 Stewart is in law enforcement. Really? Yes. Lynne Stewart,
4 the lawyer, enforces what she believes to be the most important
5 laws in our country, the Constitution and its bill of rights.
6 Lynne Stewart, members of the jury, is a New Yorker. That will
7 be obvious, as obvious as it has been to the judges and jurors
8 and clients in the courtrooms where she spends her time. She
9 has so many years of experience dealing with prosecutors and
10 other lawyers, talking to juries, drawn from all parts of this
11 diverse community. She is brash, opinionated and, aside from
12 her law practice, deeply involved in the political and social
13 issues of her community.
14 She is not, never has been a big firm, rich lawyer.
15 She went to law school after she had been a public school
16 librarian, grew up in Queens. She and her husband were raising
17 three kids at home and she went to law school while doing that.
18 Now, her legal decision making -- this is what's important
19 about this -- is shaped by her practical knowledge of the way
20 the world works. Lynne Stewart is the prosecutor's adversary,
21 their opponent, the thorn in the government's side. Like all
22 good lawyers, she is the client's champion. People come to her
23 when prosecutors have made allegations, mainly in her practice.
24 She represents poor people and people of color, and often in
25 her cases she is appointed by the Court as in the case of
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1 Sheikh Abdel Rahman.
2 To be an adversary, Lynne Stewart, when she has heard
3 the prosecutor has made an allegation, says, can you prove
4 that. I doubt that. Can you prove that beyond a reasonable
5 doubt with lawful evidence? At the same time, she is a
6 realist. She does try to settle cases and settle issues and
7 you are going to hear testimony about her trying to do that in
8 hard-boiled negotiations with the government. But if there is
9 no settlement, yes, she will go to trial because she knows in
10 her experience that the police and the prosecutors may charge
11 innocent people with crime, and that person needs a champion
12 and got a negotiator.
13 Just as prosecutors use all their tools and stratagems
14 and devices to put people in prison, she takes seriously her
15 oath as a lawyer, her oath as a lawyer, provided for by the law
16 where she stood up and said she promised to represent her
17 clients, in the words of the law, with warm zeal. She does not
18 walk away from her obligations, even when the going gets tough.
19 Members of the jury, to be an advocate for somebody
20 means you have to know something about them. You have to care
21 who they are, understand who they are, to try to bridge the gap
22 between the client and whoever is deciding. And to be Sheikh
23 Abdel Rahman's advocate she studied her client's background and
24 values. She studied the politics and history of Egypt. She
25 studied Islamic politics and the various Islamic movements.
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1 She spent time, hours and days and weeks understanding her
2 client.
3 And here is a theme, members of the jury, that cuts
4 through this case: Lynne Stewart exercises independent
5 judgment.
6 Of course, Lynne Stewart and the other lawyers learned
7 about, researched all that was going on in the world to try to
8 understand it. They never accepted the government's version.
9 They never accepted prepackaged intelligence out of so-called
10 intelligence out of government agencies. No, indeed. But,
11 look, Lynne Stewart knows, in a law practice where you
12 represent people charged with crimes, some of your clients are
13 criminals. It happens. Maybe some of them associate with
14 criminals.
15 And no matter who a client is or what they are told to
16 do, some of them don't follow their lawyer's advice. Just like
17 a doctor's patient continues their unhealthy habits even though
18 the doctor implores them. People don't follow their lawyer's
19 advice. In this evidence it is going to be important to make a
20 distinction between what the lawyer is saying the law is about
21 and some things that the client may think or believe or want
22 because there can be a gap there and that imposes a special
23 responsibility on lawyers. Lynne Stewart is not there to do
24 whatever the client wants.
25 She earned her license to practice law, she earned it
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1 the hard way, by commuting every day across to Newark to go to
2 law school for three years. It is not for sale, not to
3 anybody, not to any client. In this case there will be plenty
4 of evidence, members of the jury, of Lynne Stewart saying no,
5 we can't that, don't do that, when that was the right thing to
6 say. Another part of independent judgment is that sometimes
7 lawyers disagree, even ones on the same side. If any of those
8 disagreements come up, Lynne Stewart will be happy to discuss
9 them with you.
10 But there is another part of independent judgment,
11 members of the jury. I mentioned it a little bit because it is
12 important. The evidence will show it. It deals with her
13 knowledge and intent, which is a lot of what this case is
14 about. She knows from long and hard experience in the criminal
15 courts that it is not only the clients you need to watch out
16 for. There are times when the police and the FBI don't tell
17 the truth. There are times when prosecutors don't tell the
18 truth.
19 And during the trial of Sheikh Abdel Rahman one of her
20 jobs was to stand up and cross-examine witnesses the government
21 was putting out there and get them to admit that they were not
22 truthful.
23 Ultimately, members of the jury, the jury convicted
24 Sheikh Abdel Rahman. Okay. That happened, we have accepted
25 it. But what Lynne Stewart believes is that the world is a
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1 better, safer place. Our country is better if they see that
2 even somebody accused can have a lawyer getting up and pointing
3 out the problems with the government's case.
4 Now, this need to exercise independent judgment comes
5 into play here because Sheikh Abdel Rahman was convicted. And
6 after he was convicted, then the question gets to be what are
7 his rights now? Does he have any under our system?
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1 Well, she knew that she, as a matter of fact, didn't
2 have a choice. She was obliged by her oath as a lawyer to
3 continue to represent him unless she could think up some really
4 good reason not to and convince the court. She knew that he
5 had rights and responsibilities, and needed to see that rights
6 were respected and the responsibilities carried out.
7 So I want to make a difference here, a distinction. I
8 have said that lawyers need to be informed. I want to come
9 back to something I said at the beginning. You are going to
10 hear a lot of evidence in this case about really scary people
11 and really scary things, scary words -- fatwah, jihad,
12 terrorism. You are also going to hear over and over again that
13 Lynne Stewart is not charged with doing those things. The
14 evidence is before you because the effort will be to show that
15 they knew about those things and should have, and the evidence
16 will show did, take them properly into account when she was
17 representing here her client. She is nobody's fool.
18 So I want to talk a little bit, how does she live with
19 all of that? How does she live her life in a principled way to
20 deal with the dangers presented by things that are represented
21 by those buzzwords? Well, in order to be a lawyer in this
22 city, in these cases, Lynne Stewart thinks you have to know a
23 lot about terrorism. She did, and she does. And she knows
24 that it's important to safety, public safety, her safety, and
25 her family's safety that we not underestimate the threat of
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1 anarchistic and terrorist violence.
2 At the same time she believes that the careless use of
3 words by government, like terrorist and fatwah and jihad and
4 Islam and Muslim, the carelessness can contribute to wrong
5 decisions and to conduct by police and prosecutors that
6 violates people's rights. She has seen this sort of thing
7 happening during the 40 years she has been in law practice and
8 before that an activist. She is sensitive to it. She thinks
9 prosecutors and police share with all of humankind this
10 tendency to substitute labels for thinking. And you will hear
11 evidence that the prosecutors in Sheikh Abdel Rahman's trial
12 did just that.
13 Members of the jury, before the week is out you will
14 hear evidence about conclusion jumping of exactly that kind by
15 a government official.
16 The evidence will be also that prosecutors she dealt
17 with in the sheikh's case did some of that. Lynne Stewart
18 believes that using those labels carelessly, thoughtlessly,
19 without investigation, is the first step towards ethnic and
20 racial discrimination. She was arguing, and did argue,
21 throughout the period of the sheikh's confinement that the
22 strength of a strong America lies in a continuing commitment to
23 fundamental values.
24 Now, we put aside -- oh, there was another name,
25 wasn't there? Osama Bin Laden. Well, she didn't have anything
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1 to do with him. At most that evidence won't be offered as to
2 her. There will be evidence she knew about a statement he made
3 in the year 2000. What did she think about Osama Bin Laden
4 back in 2000? She thought he was a mass murderer and a
5 dangerous man. She knew that he was a Saudi millionaire who
6 got his power by manipulating the cold war politics of the
7 Middle East. She knew he had nothing to do with her
8 representation of Sheikh Abdel Rahman's. She wanted nothing to
9 do about with him. Why? Because he and Taha, and a name that
10 wasn't mentioned here but will be, Al-Zawahiri, Bin Laden's
11 number 2 man, are dangerous and violent and hypocrites. Taha
12 and Al-Zawahiri are renegades from the Egyptian political
13 movement. They went out to Sudan and later Afghanistan to join
14 up with Bin Laden's group and she knew back in 2000 that any
15 association with those people would be lethal to the sheikh's
16 interest in trying to get fair treatment, something I am going
17 to talk about in a little bit of detail. She knew that. And,
18 therefore, they are emblazoning his name, what she thought was
19 so much dangerous hypocrisy.
20 As Judge Koeltl will instruct you, the events of 9/11
21 have nothing to do with this case. And so with Osama Bin Laden
22 and Luxor and the rest, it was Lynne Stewart's views that these
23 were hypocritical demands made by people trying to exploit
24 Sheikh Abdel Rahman's name and reputation for their own
25 purposes. And that they were in fact hurting the ability of
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1 her client to get fair treatment. Indeed, as I have shown a
2 little bit with that memorandum to the deputy Attorney General,
3 there were some things about this situation that high
4 government officials and Ramsey Clark and Lynne Stewart were
5 all in agreement about.
6 Well, let's now do our own time line, shall we? 1994.
7 It would be wonderful if we could play tape recordings of the
8 conversations with Ramsey Clark and Lynne Stewart and all those
9 lawyers back in 1995 and '96, but they don't exist. They were
10 never made. The government began to tap Mr. Sattar's
11 telephones in March '95 when he was working as a paralegal in
12 the trial. And they began to tap Mr. Yousry's telephones on
13 November 1st, '99. That is two groups of recordings. And then
14 they did not begin to tape record, to videotape, actually
15 videotape lawyer-client meetings, until the year 2000 and at
16 the same time later in the year 2000 to do audio recordings of
17 lawyer-client conversations.
18 There was never a wiretap on Lynne Stewart's
19 telephones -- ever. And there was never a secret microphone in
20 her home or office.
21 So how will the evidence come in? The government
22 didn't get it by taping. We have to wait until she takes the
23 stand. The only time you will hear Lynne Stewart's voice on
24 those calls is when she is talking to somebody else and, of
25 course, if two other people are talking in Arabic and she
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1 doesn't speak the language, and most of that evidence is not
2 going to be offered as to her anyway. If we compare Lynne
3 Stewart's thousands of hours of work for Sheikh Abdel Rahman to
4 the pages of a book, the government will only have a very few
5 pages and when our turn comes we will have to try to present a
6 bunch more so you will have the whole book.
7 When you hear a recorded conversation, thus, please
8 ask, well, who is on the call? Which defendant does it
9 concern? Has there been any evidence that the call is
10 connected to Lynne Stewart? That is a part of what we are
11 asking for here, separate consideration. Now, when I say that,
12 I want to be clear. We are not pointing the finger at anybody
13 in this courtroom. We are not, and we don't. Our quarrel is
14 with the prosecutors. All I am saying is separate
15 consideration please.
16 Well, how will we present the rest of the story if all
17 these things happened so long ago? We are lucky. We are
18 lucky. Mr. Mohammed Yousry, sitting right over here, he is a
19 translator. I am not his lawyer but I have talked to his
20 lawyer so I think I know what the evidence will be about that.
21 He is a Ph.D. candidate. He has been a translator for the
22 government. He has been a translator for major networks
23 working on a Ph.D. about Egypt, married to a non-Mulim. You
24 will hear all of that. But the great thing is that he kept
25 notebooks. When he would go with the lawyers to a visit with
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1 the client or they would be on the phone, he would take notes
2 in Arabic of what the client was wanting. And then if there
3 was a question could I read this to the client? Could I
4 transmit this on behalf of the client? He would make a note as
5 to whether the lawyers approved it or not. And oftentimes they
6 didn't. They said, no, you can't do that.
7 So the care that was taken to make these decisions is
8 going to be reflected in those notebooks and we certainly hope
9 and expect that Mr. Yousry will take the stand so we will have
10 some way to recreate this work. And also, then, we will have
11 some of the record of Sheikh Abdel Rahman's trial -- you know,
12 that trial went on for 9 months, and we will not replay it for
13 you, not even in fast forward. Just enough to get the idea of
14 what it was about.
15 So the notebooks. Now, there is a problem here
16 because the translation issues were significant. That is,
17 Sheikh Abdel Rahman speaks Arabic. He has a few words of
18 English. When the lawyers would go visit him even if you
19 recorded every one of those visits, you wouldn't get the whole
20 thing because the lawyers would meet with Mr. Yousry in advance
21 and say this is what can go on here. We need to regulate this.
22 And then after it was over he would relay things that the
23 client had said so that they would have a full picture on a
24 going-forward basis.
25 So you are going to hear different kinds of
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1 recordings. Some are going to be English language translations
2 of things that happen in Arabic where Lynne Stewart was not
3 present because she doesn't speak Arabic. There might be
4 English language translations that it will be easy to forget
5 they are not talking in English. And then there will be calls
6 where Lynne Stewart is talking and where things are said in
7 nuances, and so on, you will be able to use.
8 Well, if it's so hard, and I think it is to put all
9 this story together, some of it going back ten years, how are
10 we going to do it?
11 Let's take a date. October 1, 1995. What is that
12 date? That is the date that a jury in this building stood up,
13 came in and said guilty, guilty, guilty, as to Sheikh Abdel
14 Rahman. Now he is guilty, a major figure in the Islamic
15 community. He was in a courtroom just like this one but up on
16 the third floor. And Chief Judge -- now Chief Judge Michael
17 Mukasey called Ms. Stewart into his office and he said, you
18 know, the jury came in. He is guilty. They are going to move
19 him tonight. They are going to take him out of the
20 Metropolitan Correction Center, which is the jail behind this
21 building, and they are going to take him to Springfield,
22 Missouri, the prison hospital. And I want you to know because
23 I don't want him to be frightened because he is blind and you
24 can tell him what is happening and I don't want there to be any
25 question that he is being treated fairly.
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1 The idea that you needed to keep track of sheikh Omar
2 Abdel Rahman, that you needed to have somebody looking out to
3 make sure nothing bad was happening to him, that is not a Lynne
4 Stewart invention. That was an idea that she interpreted Chief
5 Judge Mukasey was saying and that senior Justice Department
6 officials were constantly aware of. So Lynne Stewart says to
7 herself, well, I came in second. That is what trial lawyers
8 say when the case is over, I came in second. It's like in
9 horseshoes, there really isn't any second; it means you lost
10 and there it is. And she said to herself, well, I came in
11 second, what do I do now?
12 Well, as a lawyer you know she has an obligation. Did
13 you know that? She had to stay in the case for the appeal
14 unless the judge let her out. Well, she got Ramsey Clark to
15 help and they did. They were going to take an appeal. But you
16 know they didn't have any illusions. Most people who appeal a
17 criminal conviction lose. Most convictions are affirmed.
18 Let's be clear. So we don't need to think about that too much.
19 Second, she knew that even if the appeals were denied
20 under our legal system a person that is in prison always has
21 the right if evidence comes out later that they were innocent
22 or that the government lied or something like that, they can
23 present a new case in court. They can get so-called
24 post-conviction relief. So she had that in the back of her
25 mind, but that could happen.
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1 But looking back at all the hours and days and weeks
2 and months of the case, Lynne Stewart realized that the first
3 issue was going to be prison conditions. He was blind. He had
4 diabetes. He had heart trouble and very soon everybody in
5 government recognized that if he were to die in United States
6 custody and somebody was able to say that the doctors didn't
7 treat him right, then that would not be a good day for America.
8 And so you will hear a lot of evidence about Ramsey Clark going
9 down and talking to the Justice Department officials to try to
10 make sure and far from throwing away the key, the Justice
11 Department officials eventually decided, first, that they would
12 move him to a prison, to a hospital in Rochester, Minnesota,
13 away from the prison hospital in Springfield. The one in
14 Rochester is still a prison but there are better doctors. That
15 they would allow an independent Medical Examiner, and then they
16 were going to try and find a Muslim person with credibility in
17 the Muslim world to spread the word that he was being treated
18 okay.
19 Those were initiatives the United States was doing.
20 After all, it was better, Lynne Stewart and Ramsey Clark
21 thought, to keep in contact with the government. Because if
22 somebody is looking over the shoulders of the guards,
23 metaphorically here because they are looking over the shoulders
24 in talking to people in Washington, there is a much better
25 chance that the rules are going to be respected and the kinds
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1 of international incidents that could happen if the rules were
2 not respected could be headed off.
3 Now, Sheikh Abdel Rahman -- and you are going to hear
4 about this -- complained a lot about his prison conditions.
5 Like so many other people in prison, you know the first word
6 they want to say is "out". Well, that wasn't going to happen.
7 He was under a life sentence and a lot of his statements about
8 this were a result of his anger and bitterness and lack of
9 understanding and the lawyers had to process those. There is
10 one recording, as a matter of fact, where Sheikh Abdel Rahman
11 had talked to his wife. You are going to hear this. He had
12 apparently talked to his wife. He told her that he wasn't
13 getting his insulin. Well, I think this probably wasn't true.
14 He was trying to get his wife stirred up, not the first time
15 this happened in the world. And she then called Mr. Sattar and
16 she wanted to start some press campaign about the sheikh's
17 insulin, and so there is a phone call with Lynne Stewart
18 saying, well, you know, nobody on the outside knows whether or
19 not he is getting his insulin but don't do a press campaign --
20 don't.
21 You see, the telephone conversation sounds banal, it
22 sounds trivial but it's one of those instances of the lawyer
23 doing her job on a day-to-day basis.
24 Well, yeah, okay prison conditions. Suppose all the
25 appeals were denied, suppose the prison conditions were ideal
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1 and much was done about those as could be? Now what? And here
2 is an idea that the evidence is going to show, and you are
3 hearing it here for the first time, starting in about '97
4 Sheikh Abdel Rahman was famous. Okay, we know that. The
5 evidence will show it. Excuse me, you see, I did that. Many
6 people in these Islamic movements wanted to use his name for
7 their own purpose. They wanted to claim he supported their
8 actions.
9 Lynne Stewart knew there were people out there that
10 might take advantage of this. They might do violent acts to
11 take advantage of it. What did they decide to do? They knew
12 that any violent actions of that kind would cause an adverse
13 reaction, would not be in their client's interests. And you
14 will hear and see evidence that that is exactly the kind of
15 analysis that they did. Of course, they had to tell him they
16 thought -- because they thought the law, their law, the law
17 that says represent your client required it -- about the things
18 that were being done in his name. But they were very careful
19 about what information he did and didn't get. So what was
20 their conclusion? What will be the story that the evidence
21 tells, that Ramsey Clark and Lynne Stewart and these other
22 lawyers were doing?
23 He has lost all legitimate hope he is going to be set
24 free. He is in jail for his life and that is it.
25 But are there alternatives that would make the
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1 sentence of imprisonment more acceptable to the American
2 government, the Egyptian government, and to the client himself?
3 Was there a way for these lawyers to bring about a negotiated
4 solution that would involve the governments of Egypt and the
5 United States? How could they convince these governments that
6 their proposed solution would make America and the rest of the
7 world a safer place? And here is the evidence: Ramsey Clark
8 and Lynne Stewart knew that the sheikh's continued presence in
9 the United States in an American prison would draw unwanted
10 attention to the United States. His presence would be a
11 lightening rod for radical Islamists and they thought it would
12 be better and safer that the United States in its own interest
13 get him to a prison in another country. The added fact that he
14 was in poor health and was going to die in somebody's custody
15 made that more urgent.
16 Now, one might think of various countries, but they
17 were thinking about Egypt, an Egyptian jail. The background of
18 these discussions, which paints a very different picture than
19 what you will hear from the other side, is this: Ramsey Clark
20 with his experience knew that prisoner exchanges were a routine
21 part of international diplomacy, usually handled by cooperation
22 between the Department of Justice and the Department of State.
23 A lot of those happened in the Cold War years with Soviet
24 spies.
25 Now, in 1997 Ramsey Clark begins to discuss with
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1 American and Egyptian officials the idea that Sheikh Abdel
2 Rahman should be moved out of the United States and into an
3 Egyptian prison. On February 7, '98, Ramsey Clark visited
4 Sheikh Abdel Rahman in Rochester, Minnesota. He told him that
5 the United States government understood the political
6 ramifications if the sheikh were to die in American custody.
7 He said that there might be a prospect of a prisoner exchange,
8 not freedom but a different jail. And Sheikh Abdel Rahman
9 agreed that this idea should be pursued, and this theme was
10 repeated over and over throughout the rest of 1998, through
11 1999, 2000, 2001. You will hear evidence of it.
12 Ramsey Clark made several trips to the Middle East.
13 He guaged the reaction of the Egyptian government. For
14 example, on September 18, '99 he met with Sheikh Abdel Rahman
15 again and outlined what would happen. Sheikh Abdel Rahman
16 would leave the United States, perhaps being deported. The
17 President would have to approve that. He would serve his time
18 in an Egyptian prison where he would be close to his family and
19 in comparatively familiar surroundings.
20 Now, why would the client agree to this? The client
21 might have a lot of agendas, and we certainly are going to hear
22 this evidence that a lot of violent Islamists had their own
23 agenda. But for the lawyers it was important to convince the
24 client this could be the best that could be done for you.
25 After all, the guards will speak Arabic. The food will be the
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1 kind of food that your religious obligations say you can eat.
2 When it's time for to you pray there will be a lot of people in
3 prison that share your faith and you will know that is the time
4 you can do that.
5 This was not a pipe dream. But the lawyers knew that
6 if their client was involved in a conspiracy to commit lawless
7 violence that would be the end. And that is why they didn't do
8 it. They didn't want to do it. They were opposed to it.
9 Now, there was a key figure in all of these
10 discussions, and I hate to put names on you but this is one
11 that is important, Muntasir Al-Zayat -- Muntasir Al-Zayat. He
12 is Sheikh Abdel Rahman's lawyer in Egypt. He is a leading
13 Egyptian human rights lawyer. Why do you need a human rights
14 lawyer in Egypt? Well, because they have military tribunals,
15 tortures, disappearances and whole lot of human rights
16 violations, so they have a human rights lawyer to deal with it.
17 Your opinion about that one way or another is not an issue
18 here. We are not trying to convince you who to vote for in
19 Egypt. But Muntasir Al-Zayat is known also as a consistent
20 opponent of violence in Egypt. He was probably a major
21 architect of that '97 call to nonviolence, a very important
22 figure.
23 Now, the lawyers knew that they were under media
24 attention. I mean, Ramsey Clark is meeting with people, senior
25 people in the Justice Department, in the Bureau of Prisons.
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1 Ramsey Clark is a well-known figure. Ramsey Clark is going to
2 Egypt. Ramsey Clark is holding press conferences and the
3 government of the United States isn't saying don't do it. They
4 are having negotiations. And, in fact, in addition to all of
5 this media work that was being done, not to encourage terrorism
6 but to try to do a negotiated solution, the Egyptian government
7 started to make statements that they would be willing to take
8 him, to get him out of the United States.
9 Now, the evidence will be that it never happened. The
10 American officials just wouldn't do it. The Egyptian officials
11 who knows, maybe that dried up. But despite the fact it was
12 proposed, and we will call Ramsey Clark as a witness, it just
13 didn't go anywhere.
14 So that is a context. That is what these lawyers
15 thought they were doing. That is why they were meeting with
16 their client. And that is why, members of the jury, far from
17 approving of any of these things that were going on, most of
18 which will be offered in evidence and not as to Lynne Stewart,
19 they weren't a part of it, didn't want to be a part of it, knew
20 that it was wrong to be a part of it, that wasn't in their
21 interest and it wasn't in their client's interest.
22 Oh, yes, but what about the special administrative
23 measures? Much of this trial will be taken up with evidence
24 about them. These measures did have the effect of placing
25 Sheikh Abdel Rahman in a kind of a solitary confinement and
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1 there were affirmations signed, and Lynne Stewart signed every
2 single one of them in good faith. There was a challenge
3 because despite the SAMs there was ongoing media attention and
4 so long as the media was attaching Sheikh Abdel Rahman's name
5 to things, the lawyers had to deal with how to respond to that
6 to keep their client's name out of trouble.
7 They thought, and they had to navigate a very
8 difficult road, that the best way was to use their influence to
9 encourage an end to violence in Egypt. And that, as I say,
10 continued through all of those years.
11 Now, I want to take just two minutes, and I am getting
12 to the end, to discuss an item of evidence that has been
13 mentioned and that is going to be here. That is about Lynne
14 Stewart trying to keep the guards from hearing what is going
15 on.
16 Members of the jury, when Lynne Stewart talks to a
17 client she regards those conversations as confidential and she
18 takes steps to prevent outsiders from hearing what is being
19 discussed. When confidential client papers are on her desk she
20 turns them over when somebody else comes into the room. When
21 she is in court with a client she and her client whisper to
22 each other instead of standing up and discussing their business
23 so everybody can hear it.
24 Now, I mention this because you may hear somebody say,
25 well, gee, she tried to stop the prison guards from hearing
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1 what was going on. Well, she probably did. And since whether
2 she did or not doesn't end the story the question is with what
3 intent she did it. Did she intend to violate the law? Of
4 course not. She thought she was obeying the law. She thought
5 she would be drummed out of the legal profession if she was
6 shouting her client's business from the rooftops. The idea
7 that confidentiality of communication is sinister is not one
8 that Lynne Stewart shares. And, as I say, we stand here ready,
9 and Lynne Stewart will stand ready and sit ready having taken
10 the oath to defend everything she was actually doing and of
11 course she obeyed the lawyer rules.
12 Now, the most serious and difficult part of this
13 case -- May and June of 2000. The evidence about that is not
14 going to come in all at once. I ask you please to keep an open
15 mind because what was said, with what intention it was said,
16 when it was said, that is a picture that won't be complete and
17 I predict if this case goes on a long time for months. Sheikh
18 Abdel Rahman had repeatedly said he wanted a end to violence in
19 Egypt. There were people in Egypt that he knew, however, were
20 still being held in prison for political crimes. And the
21 government of Egypt was continuing to round people up, torture
22 them, commit human rights violations.
23 Now, when our turn comes we are going to present the
24 full story of those May-June visits. Lynne Stewart did
25 communicate to the media the views of her client but it was not
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1 a call to arms, it was not a direction to do violence, it was
2 not an encouragement to do violence, it was not any such thing.
3 She didn't think it was any such thing and she thought at the
4 time she did it that it was not only the lawful thing to do but
5 that as a lawyer sworn to advance her client's interest in
6 accordance with the law, and only the law, that it was the
7 right thing to do.
8 You will hear instructions on the law from the court.
9 You will hear evidence of Lynne Stewart's intent. You will
10 hear evidence of the words but, members of the jury, Lynne
11 Stewart did not, would not, issue anything that she thought was
12 a terrorist message or a call to arms. Not only because she is
13 not going to put her law license on the line for anybody, but,
14 members of the jury, because she knew that it was certainly not
15 in her client's interest to do any such thing, that that would
16 irrevocably sabotage any negotiations.
17 Now, let's look at it. After she does issue a
18 statement, which, as I say, you will have some evidence, what
19 is the form of the statement? The statement, the so-called
20 statement is not Lynne Stewart saying Sheikh Abdel Rahman says.
21 No. On May 20 Sheikh Abdel Rahman is in the prison. There is
22 Mr. Yousry; there is Ms. Stewart, and he says I want to dictate
23 a letter, not to Mr. Taha, the Sudanese Afghani terrorist, not
24 to Mr. So and so, I want to dictate a letter. Who do you want
25 to dictate it to? Muntasir Al-Zayat. Muntasir Al-Zayat -- your
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1 lawyer in Egypt? Yes. And I want to ask him what good is
2 it -- I am still here, Muntasir, I thought I was supposed to be
3 able to go to Egypt. What is happening here? I understand
4 they are letting a lot of people out over there 'cause of the
5 cease-fire. What about me?
6 That was the context of the letter. It wasn't a
7 terrorist message. It was a letter to the lawyer in Egypt,
8 known as a lawyer who opposed violence.
9 And, members of the jury, I know I have taxed your
10 patience and I won't anymore, but I will tell you when Muntasir
11 sat and everybody started talking in Egypt about the sheikh's
12 condition this whole thing led to a reaffirmation of the
13 nonviolence initiative. That is what happened.
14 Well, the government didn't see it that way. Ms.
15 Stewart gets a call from this prosecutor, Patrick Fitzgerald,
16 and she gets a letter from him and he is some kind of upset.
17 And he -- as a matter of fact, he wrote a memorandum around
18 that time saying I let Ramsey Clark do this, but I am not
19 standing still for Lynne Stewart doing it. In effect, he says
20 that. So he writes a letter. Ms. Stewart, you did wrong and
21 you are never going to see your client again. She goes, that's
22 pretty bad. She thought that was the best that could happen,
23 she couldn't see the client, and even then they could have a
24 lawsuit about it. So they have months of negotiations, months.
25 And Mr. Fitzgerald originally said, I want you, Ms. Stewart, to
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1 admit that your client is a bad guy and this, that, and the
2 other way. And Ms. Stewart said, you know, as a lawyer I am
3 not really in the business of admitting my client is a bad guy.
4 I will admit that you think he is a bad guy. Fitzgerald backed
5 down and said, okay, if you admit we think he is a bad guy, and
6 he put it in there in some detail, you can go back and see him.
7 He backed down.
8 Now, those negotiations lasted, can you imagine this,
9 from June of 2000 on into 2001. That is a crucial time in the
10 government's evidence but not for Lynne Stewart because she
11 wasn't anywhere near Sheikh Abdel Rahman. And according to the
12 government -- the allegations, and and we don't know, I suspect
13 the evidence will be the wheels came off the wagon during that
14 time because there was a statement issued that Sheikh Abdel
15 Rahman supported this fatwah to kill a bunch of people. Well,
16 Lynne Stewart didn't know anything about that, had nothing to
17 do with it, didn't think it was a good idea, thought it was a
18 bad idea, but it didn't happen on her watch.
19 And she will tell you what she thinks of it when she
20 takes the stand. But that is not hers.
21 Now, one thing that is interesting about this, when
22 Lynne Stewart signed up to be able to go back and visit her
23 client, she did so in good faith and the government promised
24 her if she signed this piece of paper she could go see her
25 client and she would have confidential attorney-client
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1 communications. Well, they never intended to keep that
2 promise, and they didn't. That will be the evidence.
3 Well, folks, I have talked too long. I don't know how
4 long it is because I didn't take my watch off. You know, like
5 somebody at the baptist service when the preacher took off his
6 watch somebody said, what does that mean, and somebody said,
7 well, not a darn thing. But anyway I am just about done now.
8 You know there is a letter Sheikh Abdel Rahman sent
9 back in 1996 and what he said was I want a Braille watch and I
10 want a Braille compass. I want to know what time of day to
11 pray. He wanted to feel the sun on his face. He wanted to
12 know what time to perform his religious obligation. But my
13 goodness me, he was a prisoner and he had been convicted of
14 doing horrific things. What was he owed by the system? But
15 Lynne Stewart understood what her client wanted. You will see
16 government officials that understood that and she is a
17 compassionate and brave and skillful and honorable lawyer and
18 she understood that if ever their client was to have any of
19 that, which everything else having been taken from him as a
20 consequence of his own criminality -- as a consequence of his
21 own criminality -- if ever he was to have any of that, to feel
22 this Egyptian sun on his face at the hour of prayer, that he
23 shouldn't be joining up with any conspiracies, only the truth
24 and the law would open that opportunity. And what these
25 lawyers courageously believed was that if that opportunity were
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1 opened up and he were taken out of this country and to another
2 one, that that would show the United States and the world as a
3 place not afraid to deal creatively with its adversaries and
4 would remove this lightening rod from our custody.
5 Now, I have asked here, and I will ask again, please,
6 please, please keep an open mind. Sometimes the very last
7 thing you hear about some situation is the thing that decides
8 it for you. Sometimes it's the solution to the whole problem.
9 I have told you what we believe the evidence will be. I am not
10 by doing this going to assume a burden of proof that we don't
11 have. No, members of the jury, the prosecutors have that
12 burden beyond a reasonable doubt and when the case is all over
13 and the evidence is in I will stand before you again and point
14 out the ways in which we believe they have not carried it.
15 Members of the jury, Lynne Stewart is not guilty.
16 THE COURT: All right.
17 Ladies and gentlemen, that concludes the opening
18 statement on behalf of Ms. Stewart. We will take a break at
19 this point for ten minutes. Please remember my continuing
20 instructions not to talk about the case, always keep an open
21 mind until you have heard all of the evidence, and I have
22 instructed you on the law.
23 All rise please.
24 (Jury left the courtroom)
25 THE COURT: Can I talk to the lawyers again please.
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1 (Side bar conference)
2 THE COURT: A series of more administrative issues.
3 Jurors raised an issue with my deputy with respect to
4 their anonimity as it relates to members of their family and
5 friends who will know that they are on a long case and may put
6 2 and 2 together. The only thing that I believe I can tell --
7 and I wanted to raise this now because I will tell the jurors
8 at the end of the day, the only thing I can tell the jurors, I
9 believe, is to say to them, ladies and gentlemen, I have asked
10 you please, please don't talk about this case and you may tell
11 your family and friends that you are on a long case but please
12 don't tell them anything else and don't answer any other
13 questions and you are following my instructions by doing
14 exactly that.
15 MR. STERN: I think you have to do something that is
16 impossible to be fair. There is no damage to say what case
17 they are on but their families are going to know.
18 THE COURT: My problem, as I told jurors in the course
19 of jury selection, is that when you begin to say individual
20 things, it never ends at that because then someone asks another
21 question or makes another comment. Much better to simply cut
22 it off at the pass, simply say I am on a long case, the judge
23 has told me that is it.
24 MR. STERN: I have heard you say that and there is a
25 lot of merit to what you say but you are encouraging them to
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46MSSAT6
1 lie to us because after 4, 6 months it's not realistic. It's
2 not as realistic.
3 THE COURT: I want to make it as comfortable to the
4 jurors as possible also. So if there is any suggestion that
5 anyone else has for me I would certainly welcome it and you can
6 talk among yourselves with respect to that.
7 MR. MORVILLO: Your Honor, I would like the
8 opportunity to talk to some of my colleagues back at the office
9 who have tried similar cases with an anonymous jury to see how
10 they handled the situation and perhaps I can shed some light.
11 I am not sure you feel the need to instruct them today if we
12 can put it off until tomorrow.
13 THE COURT: I don't. All I can do is tell them
14 tonight please don't talk about this case or anything to do
15 with it. A juror has asked for a separate bathroom for medical
16 reasons. We have a jury room, a smoking room and we also have
17 another room for a bathroom. We have another juror who asked
18 to stretch their legs by walking in the back corridor and so
19 they can walk in the back corridor. The back corridor is
20 closed off. We had a complaint about cleanliness of one of the
21 rooms which we will look into and we had a request for
22 Band-Aids. One juror needed a Band-Aid and that is being seen
23 to.
24 MR. RUHNKE: Can we have 15 minute to set up?
25 THE COURT: Absolutely. If you go over, do you want
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1 me to keep the jury after 4:30 or do you want to go over until
2 tomorrow morning if you are not finished about that time?
3 MR. RUHNKE: I don't want to split it up.
4 THE COURT: We will keep going then.
5 THE COURT: Okay.
6 (Recess)
7 (Continued on next page)
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46MMSAT7 Opening - Mr. Ruhnke
1 (In open court; jury not present)
2 THE COURT: Let's bring in the jury.
3 (Jury present)
4 THE COURT: Ladies and gentlemen, the next opening
5 statement will be given by Mr. Ruhnke on behalf of Mr. Yousry.
6 Mr. Ruhnke.
7 MR. RUHNKE: May it please the Court.
8 Ladies and gentlemen, good afternoon. As you have
9 seen, I have prepared a slide show or Power Point show to try
10 to make the points across to you in the time that I have this
11 afternoon.
12 I wanted to start off just by thinking of and having
13 your thinking about your role as members of the jury in federal
14 court. When a jury comes back after a long trial and returns a
15 verdict of not guilty, it can say and it can mean one of many
16 things. The jury's verdict could reflect a decision on the
17 part of the jury that every member believes the person accused
18 was absolutely innocent and that it is a case that should never
19 have been brought, or it could mean that all or some members of
20 the jury thought, you know, I'm pretty darn suspicious, but it
21 hasn't been proven to me beyond a reasonable doubt that this
22 person, in fact, violated law.
23 And the only way either of those or anything in
24 between can be reflected is in your verdict of not guilty. You
25 have not heard any evidence yet. But once you have heard the
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1 evidence, and once each of you has done what you swore to do
2 yesterday, which was to well and truly try this case, you will
3 come to a verdict with regard to Mohammed Yousry.
4 We hope and we will argue to you and we will tell you
5 where the evidence will go and the verdict will go, and that
6 verdict is not guilty. And on the spectrum of where that lies,
7 that it belongs to the spectrum of, this was an innocent man
8 who was prosecuted, an innocent man was brought into court and
9 prosecuted for having committed no criminal actions whatsoever,
10 none.
11 The theme, as I put it up on the screen, is Mohammed
12 Yousry, an interpreter performing his job in good absolute good
13 faith, and he is not guilty of violating the law.
14 I'm David Ruhnke. I'm one of the attorneys
15 representing Mr. Yousry. That's Mr. Yousry to my right in kind
16 of a burgundy-colored sweater. To his left is David Stern, who
17 is the other attorney. Together we will be taking turns in
18 presenting witnesses. We will be taking turns in
19 cross-examining witnesses. And at the end of the case we will
20 sum up to you what we believe the evidence will have proven to
21 you or indeed, as the judge has said frequently, what the lack
22 of evidence has proven to you and where the lack of evidence
23 should take you.
24 Let's start a little bit about where this is going to
25 be. We start off with you're going to learn something about
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46MMSAT7 Opening - Mr. Ruhnke
1 Mohammed Yousry in the course of this trial. You are going to
2 learn that he was born in Cairo in Egypt in 1955. He is
3 approximately 48 years old now. You will learn that he grew up
4 in the Cairo area, that after completing high school he
5 attended a military college in Egypt and was made an officer,
6 lieutenant or leftenant, as they say over there, in the
7 Egyptian army. And you will learn that he came to the United
8 States in 1980. So he has been here nearly a quarter of a
9 century. Came here in 1980, settled in Queens, where he
10 married and raised a family. His wife Sara is not a Muslim.
11 She is originally from the Dominican Republic. She is a very
12 devout Christian. They raised a daughter Leslie. They raised
13 her as a Christian. She recently graduated from a Christian
14 college down south.
15 Mr. Yousry, as the evidence will show, as the last
16 item, is not a particularly religious person. He is not a
17 practicing Muslim at all. Indeed, as he will tell you when he
18 testifies, he has never even been in a mosque, not once, not in
19 his entire life. He is and was a Ph.D. candidate in Mideastern
20 studies at -- and a teacher at NYU and at the city College of
21 New York, teaching in Mideastern studies. He is and was a
22 respected Arabic translator, an interpreter, and he still does
23 that work, and he is still respected for his work. When he
24 goes home to his family in Queens every night, he continues to
25 work as the interpreter on other projects and continues to work
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46MMSAT7 Opening - Mr. Ruhnke
1 on the most important case that he has ever worked on in his
2 life, which is this case.
3 If friends and family had to describe him -- and you
4 will hear from some of the people in court. They will describe
5 him as hard working, as decent, as honest, as intelligent, and
6 friendly, just an overall nice guy who is not, as we say, a
7 radical Muslim, any kind of Muslim at all. In fact, in fact,
8 the evidence will be that he rejects the beliefs and goals of
9 Al-Gammal Islamyia, the Islamic Group. This is the group you
10 have heard so much today as to which Sheikh Rahman is
11 ostensibly the spiritual leader, and it is important that you
12 know what the goal and the overall goal of IG is.
13 The overall goal of IG, as publicly stated, is to
14 replace the current government in Egypt, the government,
15 President Mubarak, with an Islamic state, a state ruled by
16 Islamic law, the law of sharia. Mr. Yousry does not agree with
17 that goal. He would not like to see his home country become an
18 Islamic state, his home country where his mother still lives,
19 one of his brother still lives, one of his sisters lives. He
20 rejects that idea. He does not support it.
21 Therefore, he rejects the beliefs and goals entirely
22 of Sheikh Omar Abdel Rahman because that is so important
23 because the government has said, that what Mr. Yousry wanted to
24 do in this case was to help Sheikh Rahman and help IG achieve
25 its goals in Egypt and that is completely something that
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1 Mr. Yousry does not agree with and the evidence will show you
2 that he is not a terrorist. He is not a supporter of
3 terrorism.
4 And the final point that you need to know is that
5 Mr. Yousry will testify in his own defense. He will take the
6 witness stand. He will explain to you, ladies and gentlemen,
7 through his eyes, the events, the actions, the personalities of
8 the people who peopled this human drama, which is what a trial
9 really is.
10 Everyone has told you, the judge has told you, the
11 government has told you, Mr. Tigar told you a few minutes ago
12 and I am going to tell you, too, although there are three
13 people in this room all standing trial together, there are
14 simultaneously going on here three separate individual trials
15 so far as you are concerned. There is certain evidence that
16 the judge will tell you may not be considered at all against
17 Mohammed Yousry. There is certain evidence that the judge will
18 tell you applies only to other people in the case. And your
19 job is to sort out that evidence and keep kind of a tunnel
20 vision when you're deciding who is guilty, who is not guilty of
21 anything in this case.
22 This is the case of the United States against Mohammed
23 Yousry as far as I am concerned and far as David Stern is
24 concerned. There are two other people on trial in the case and
25 that is true. That also should be your concern when it comes
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1 to your consideration of Mr. Yousry, that he is entitled to
2 your individual consideration.
3 Some just general orientation introduction. We can't
4 give you the whole case here. Indeed, Sunday was the first day
5 of summer. It is now June 22. By the time Mr. Stern and I are
6 able to actually start calling witnesses to the case we may be
7 in October. So I need now to give you an outline of where we
8 are going to go when we finally get our chance to go there.
9 In the fall of 1993, Mr. Yousry, who has been a
10 well-respected Egyptian translator, begins working for an
11 outfit known as Hess translation. Through that association he
12 is hired by an attorney involved in Sheikh Rahman's trial.
13 There were several defendants on trial in that case, not just
14 Sheikh Rahman. And he is hired to work on language issues,
15 translation issues at the trial that took place in 1994.
16 Through that association he first meets Sheikh Rahman
17 through Lynne Stewart, and he is later introduced to some of
18 the other attorneys who work -- come to work on the Sheikh's
19 case, including Abdeen Jabarra, whose name you heard previously
20 referenced to, Ramsey Clark, whose name you have heard
21 mentioned much more promptly, and others, and begins to work on
22 the Sheikh's case for the attorneys as their interpreter. He
23 is not Mr. Sheikh Rahman's translator. There is one job he has
24 as of many jobs. Like with many other jobs, he is working with
25 a group of attorneys and continues to work for this group of
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46MMSAT7 Opening - Mr. Ruhnke
1 attorneys over many years.
2 In late 1996, the Sheikh has decided he didn't want
3 Mr. Yousry to be working on his case anymore and other people
4 come along. However, in 1997, Ramsey Clark came to Mr. Yousry
5 and asked him to please resume serving as an interpreter on the
6 Sheikh's case on an as-needed basis and Mr. Yousry agreed that
7 he would do that. And he continued to serve as the interpreter
8 for four or five years after that. Several times he wanted to
9 quit because it was very time consuming. There were trips to
10 prison. He had other things that he wanted to do. And each
11 time the attorneys prevailed upon him to keep working on the
12 case because it was very difficult to get anyone approved to
13 act as an interpreter for the Sheikh because of the prison
14 conditions that he was under.
15 In reviewing the evidence here, you are looking for --
16 I'm not the one to tell you what the law is, but in order to
17 find Mr. Yousry guilty, you are going to have to find beyond a
18 reasonable doubt that he had knowingly and intentionally and
19 deliberately and willfully to violate the law, that it was
20 something that it was his conscious purpose to do. He knew
21 what the law was and he consciously set out to violate it. He
22 knew what IG was and he consciously wanted to provide Sheikh
23 Rahman to that conspiracy.
24 So the key questions, did Mr. Yousry deliberately
25 intend to defraud the United States by working to defeat the
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46MMSAT7 Opening - Mr. Ruhnke
1 SAMs? Did he knowingly and intentionally aid the Islamic Group
2 by providing personnel, meaning Sheikh Rahman, to another
3 conspiracy, not one he is charged in, but this conspiracy to
4 kill and kidnap people in Egypt? And did he rely in good faith
5 on how he conducted himself on what he did and what he did not
6 do on the lead provided to him by the attorneys involved in the
7 case? Those are all issues that you're going to have to decide
8 in this case.
9 Who were Sheikh Rahman's legal representatives? First
10 and fairly foremost was Ramsey Clark. Ramsey Clark is an
11 attorney who lives and practices here in New York City. He
12 served under Lyndon Johnson as the Attorney General of the
13 United States. He was to Lyndon Johnson as John Ashcroft is to
14 George Bush today, the nation's No. 1 law enforcement
15 authority. Abdeen Jabarra was another attorney. Mr. Jabarra
16 is of Arab-American heritage and, among other things, founded
17 an organization known as the Arab-American Defamation League to
18 protect the rights of Arab Americans. Lawrence Schilling was
19 another attorney who worked in Mr. Clark's office here in New
20 York City. He has an office in the West village. Mr. Clark
21 has an office in the West village. And Lynne Stewart was the
22 third attorney on this legal team. Ms. Stewart has been ably
23 spoken of by her counsel, Mr. Tigar.
24 The rules and his role, as Mr. Yousry understands
25 them -- this is about criminal intent. This is about whether
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46MMSAT7 Opening - Mr. Ruhnke
1 Mr. Yousry intended to violate the law or whether in all good
2 faith he did as the attorneys asked him to do, all the
3 attorneys asked him to do, all four of the attorneys asked him
4 to do, believing that he was not violating any law, believing
5 that he was acting properly, leaving it to the attorneys to set
6 the limits and to set the boundaries, and his role as an
7 interpreter was to follow the ground rules set by the lawyers.
8 He was the linguistic and cultural liaison between the
9 attorneys and their client. He spoke Arabic. He understood
10 the culture of Egypt, where Sheikh Rahman came from originally.
11 One of the benefits to Mr. Yousry of serving as the
12 attorney for the Sheikh was he was permitted by the attorneys
13 to pursue his doctoral thesis as a side bar to his
14 representation or has worked with the attorneys as the
15 interpreter. You will hear on tapes or in translation as these
16 conversations were recorded from time to time Mr. Yousry will
17 turn to one of the attorneys in the room, Ms. Stewart or
18 someone else, and say, I would like to ask the Sheikh a couple
19 of questions for my doctoral thesis. Do I have permission to
20 do that? And, generally speaking, the answer to that was yes.
21 At the time this was all going on, as I said,
22 Mr. Yousry was a doctoral student at NYU. He had his master's
23 degree in Middle Eastern studies. He had completed his studies
24 for a Ph.D. The only issue was what was his thesis going to be
25 about. And he kind of floundered around, looking for a thesis
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46MMSAT7 Opening - Mr. Ruhnke
1 topic.
2 We will present to you as witnesses the thesis advisor
3 and other officials from the Department of Middle Eastern
4 studies at NYU who will explain that it was basically their
5 idea that Mr. Yousry make a Ph.D. topic out of the life and
6 influence on Egyptian politics of Sheikh Rahman, that this was
7 a legitimate area of academic research, that it had not been
8 done. But Mr. Yousry had access to the Sheikh and had access
9 to amazing source material that had been gathered in various
10 investigations, that he had an approach to it that nobody else
11 had. And this was approved as a Ph.D. thesis topic for him.
12 The government tells you he had thousands of documents about
13 Omar Abdel Rahman at his home when it was searched. They will
14 tell you why. The reason why is he was pursuing this doctoral
15 thesis.
16 He was not a decision maker or a line drawer. That
17 was very clear. He was working for the attorneys. The
18 attorneys decided what was to be done, what was not to be done,
19 what was approved, what was not to be approved. His job was
20 not to make the decisions or draw the lines. When the
21 attorneys set the ground rules, since they had each signed the
22 SAMs -- when I'm talking about the attorneys, please understand
23 I'm not just talking about Ms. Stewart. I'm talking about all
24 four of the attorneys involved in this case.
25 Mr. Yousry, as you will probably come to see when he
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46MMSAT7 Opening - Mr. Ruhnke
1 testifies, and certainly you will glean from the way other
2 people speak of him, was, as part of this group, an intelligent
3 and knowledgeable person whose suggestions were welcome and
4 valued. But he was not hired by the Sheikh. He was brought in
5 the case by the attorneys. He was not to act as a spokesperson
6 or representative of the Sheikh. Attorneys were the one --
7 this is one of the ground rules -- were to do all the talking,
8 not the interpreter, but the attorneys were to do the talking.
9 You heard evidence that Mr. Yousry's home phone was
10 tapped in 1999. And for three or four years the Federal
11 Government was able to listen in on his conversations from
12 home. And you will find none of this outreach to this shadowy
13 world of terrorism, or whatever the government called it, in
14 any telephone or any tap that was used on Mr. Yousry phone.
15 That's because he is not a terrorist. He is not a supporter of
16 terrorists. That's because he does not want to aid terrorism
17 as his goal. He wants to do his job as an interpreter and
18 that's what he tried to do in this case.
19 And there was a routine for these meetings. Before
20 going into the meetings, whether it was a phone call, you will
21 learn from the evidence a lot of facts that you have not
22 internalized yet and hasn't become part of the case yet. You
23 will learn that for a period of time there were weekly
24 telephone calls that went into Mr. Clark's office from the
25 prison in either Rochester, Minnesota, the prison hospital in
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46MMSAT7 Opening - Mr. Ruhnke
1 Rochester, Minnesota, and that before any of these meetings
2 took place or phone calls took place or prison visits took
3 place, there was an agenda. What are we going to talk to the
4 Sheikh about today? What do we need to cover? You would be
5 justified in concluding from some of the things that you heard
6 that the Sheikh's weekly phone calls became something of a
7 chore to the attorneys. The Sheikh would call every week,
8 complain about the prison conditions. The attorneys were kind
9 of to a point where they were almost shuffling off speaking to
10 the Sheikh that week.
11 You will learn that all of the attorneys involved in
12 the case would say to Mr. Yousry: We want you to read the
13 Sheikh news of the world this week. What is the international
14 news that might bear on his case or be of interest to him and
15 would approve newspaper articles that Mr. Yousry was then
16 directed to read to the Sheikh, or would disapprove newspaper
17 articles, and, no, we don't want that one read to the Sheikh.
18 So the attorneys prescreened what Mr. Yousry did.
19 And then the attorneys postscreened. After one of
20 these meetings, after a visit at the prison there would be a
21 second meeting. And at that second meeting discussion would
22 be, Mr. Clark, Sheikh Rahman dictated to me the following
23 letter that he wants to send to one Montasser al-Zayyat, for
24 example. What about that? Here is a translation. Mr. Clark
25 would say, yes, I approve that being translated to
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46MMSAT7 Opening - Mr. Ruhnke
1 Mr. al-Zayyat or I don't approve of it being transmitted to
2 Mr. al-Zayyat. If the attorney said no, it shouldn't be
3 transmitted, it didn't get transmitted to anybody except
4 through the attorneys as the firewall, as the final arbiter of
5 what was right and what could go and could not go under the
6 SAMs.
7 These prison visits, the telephone calls were limited
8 in time. The prison visits were difficult. They were
9 expensive and difficult to set up, coordinate. The phone calls
10 were limited in the amount of time. So often what would
11 happen -- I'll show you concrete, real-life examples of it in a
12 couple of minutes.
13 Often what would happen is beforehand at the meeting
14 they would say, we want you to talk to the Sheikh about this,
15 we don't want you to talk to the Sheikh about this, we want you
16 to talk to the Sheikh about that. That's what Mr. Yousry would
17 do at the meeting and would come back after the meetings: This
18 is what he said about this, this is what he said about that,
19 this is what he said about the third topic. Then it would be
20 up to the attorneys, as the people who made the decision, what
21 goes past this point. The attorneys would sign the SAMs.
22 Whose word was on the line were the ones who made those
23 decisions.
24 What about the SAMs, special administrative measures?
25 But we are going to be calling them SAMs for months, SAMS.
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46MMSAT7 Opening - Mr. Ruhnke
1 Mr. Yousry was not required to sign or even read them. Was he
2 generally familiar with what the SAMs were all about? Yes. To
3 the extent that he knew there were things that maybe could be
4 talked about or not talked about, but that it was up to the
5 attorneys to give him the guidelines. The attorneys
6 interpreted and applied the SAMs and the attorneys established
7 the working rules.
8 What are the rules? The rules are as we do. It is
9 like any office anyone has worked in. There may be rules that
10 are written down, but what goes on every day in the office are
11 the rules of the office, the working protocols of an office.
12 The attorneys established the protocols, the working rules,
13 which Mr. Yousry was required to follow in working on Sheikh
14 Rahman's case.
15 Then there is reference to the Yousry notebooks. What
16 are they and why are they so important? The evidence will be
17 that from the earliest times of his association as an
18 interpreter for the attorneys who are representing the Sheikh,
19 Mr. Yousry kept regular records in the regular course of his
20 business as an interpreter, keeping track of what had been
21 discussed, keeping track of what had been approved, keeping
22 track of what had been disapproved, and he had these notebooks
23 and there is a stack of them.
24 He had them in his home in the spring of 2002, when
25 the FBI came in and scooped them all up as evidence in the
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46MMSAT7 Opening - Mr. Ruhnke
1 case. So we have them. We have them as preserved. During
2 that same search, the FBI scooped up his computer laptop and
3 copies of his doctoral thesis in draft and we will talk about
4 that in a few minutes.
5 Why they are so important is, it is not just me saying
6 to you the attorneys established the rules or some things were
7 approved or some things weren't approved. It is right there in
8 the notebooks.
9 Let's talk about the notebooks a little bit. It is a
10 cover of one of the notebooks, not terribly illuminating. It
11 is the kind of thing you are going to be seeing. There is
12 another cover of the one of the notebooks. Let's look at a
13 typical page of one of the notebooks. Pay special attention,
14 to attorney approvals and the idea of an agenda or topics that
15 had been covered and discussed. This is from the Yousry
16 notebooks, actually page 915 of the notebook as renumbered
17 after received from the FBI. And here you see the phrase,
18 approved by Mr. Clark. So that what followed, discussion that
19 followed was things that the Sheikh had spoken with Mr. Yousry
20 about or that there had been a premeeting about and Mr. Clark
21 had said, yes, these are topics that you may discuss, these are
22 topics we want answers to and brings us back the results.
23 Closer look. Closer look at the attorney approval.
24 That's the signature -- that's the handwriting of Mr. Yousry
25 and his notation that on that day, in Arabic, were discussed to
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46MMSAT7 Opening - Mr. Ruhnke
1 be approved. Not by Ms. Stewart, but at this time by Ramsey
2 Clark.
3 Closer look at the agenda, these are items, Arabic you
4 will learn, I learned, is written right to left, as it was not
5 confusing enough. So when you see these items here, these are
6 various topics that were all discussed that day where the
7 arrows are that Mr. Yousry has written in his Arabic
8 handwriting as topics that were discussed on a particular day.
9 Again, as I said before, before doing any of this,
10 there was the protocol, what are we going to talk about today?
11 Is this a topic that I can talk about? We want you to ask him
12 this question, we want you to ask those questions. All
13 approved ahead of time. There are literally hundreds of what
14 about I'm about to show you, very quickly, which is a sampling
15 from the attorney's approvals in the notebooks. First was
16 something that was approved by Lynne Stewart. Next, notation
17 that something that the Sheikh had said to Mr. Yousry was
18 translated and given to Mr. Clark. That's what this
19 handwriting is down here.
20 A Japanese public TV interview with the Sheikh
21 approved by Mr. Clark. Japanese public television had several
22 questions that they wanted to ask the Sheikh about his
23 conditions of confinement, how his health was and along those
24 lines. These are all up here in Arabic. And you will learn
25 that with Mr. Clark's permission through Japanese television
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46MMSAT7 Opening - Mr. Ruhnke
1 had contacted Mr. Clark and said, we would like to ask the
2 Sheikh these questions. Mr. Clark said, yes, those are
3 appropriate questions to ask. Mr. Yousry asked the questions
4 during a telephone call or prison visit and wrote down the
5 answers. Later on Mr. Clark said, some of those answers you
6 can give to the Japanese TV reporter, you cannot. Fortunately,
7 we have a tape recording of a conversation between Mr. Yousry
8 and the Japanese TV reporter saying, basically, well, I did,
9 and we asked the questions, but there were certain things that
10 the attorneys wouldn't approve, this is what they did approve,
11 perfectly done with his way of understanding what his role was
12 and what the role of the SAMs were.
13 Can anyone be blamed for looking at this and saying,
14 well, if all the attorneys are telling me it is okay to answer
15 these questions and give them back to the attorneys, then they
16 were writing, that must be legal. Why would they be allowing
17 me to do that? All of the attorneys involved in the case.
18 I will show you more. I told you about a lawyer named
19 Larry Schilling. It says Larry Schilling, approved by
20 Mr. Larry. There is a date somewhere in the year of 2000 of
21 Mr. Schilling in one of the phone calls, says, yes, you can do
22 this; yes, you can do this; no, you can't do that.
23 As far as any of the attorneys understood the SAMs as
24 a lockbox, as the government posits, is not borne out by what
25 the evidence was. There is another one, approved by
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46MMSAT7 Opening - Mr. Ruhnke
1 Mr. Schilling, Mr. Larry Schilling, approving it. Here is one
2 approved by Abdeen Jabarra and Lynne Stewart together. Here is
3 another one approved by Abdeen Jabarra, Mr. Jabarra, who is
4 over here. There is two particular sections of this Arabic
5 document that Mr. Jabarra particularly picked out to be read to
6 the Sheikh.
7 Every single one of the attorneys had Mr. Yousry read
8 newspaper articles to the Sheikh, every single one. Not one
9 thought there was a problem with it. And there were
10 disapprovals, not approval by Mr. Jabarra. Either it wasn't
11 read to the Sheikh or whether it was something that the Sheikh
12 wanted to communicate to somebody else, that particular item
13 was not approved.
14 Here is one, do not read, as per Lynne Stewart.
15 Yousry is taking his guidance from the attorney and he is
16 saying, this part you can't read, this part you can read.
17 That's one from Lynne Stewart. I think there was another one
18 from Mr. Jabarra coming up; again, not to be sent, per Abdeen.
19 Abdeen is Mr. Jabarra's first name. Whatever it was that
20 Mr. Yousry had taken down from the Sheikh had been reviewed and
21 it wasn't going to go anywhere. It wasn't going to be sent
22 anywhere at all.
23 I told you a bit about the doctoral dissertation.
24 This was the title, the working title of the dissertation:
25 Sheikh Abdel Rahman, the Mujahid Among Scholars and the scholar
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46MMSAT7 Opening - Mr. Ruhnke
1 among Mujahideen, which means a fighter among scholars and a
2 scholar among fighters. This is not light reading. I would
3 not stay up at night reading this. Sheikh Omar Comprehensive
4 Muslim Revolution, or an alternative to a totalitarian problem
5 or an alternative to totalitarian problems.
6 From that particular section of his dissertation --
7 and this can only be written in an academic setting. But what
8 the Sheikh does not recognize -- remember I told you earlier,
9 remember I said earlier, he does not support the goals of the
10 Sheikh or of the IG movement. He is writing about that and
11 critical of that in the Ph.D. movement when the FBI comes to
12 search his house in the spring of 2002.
13 How is this for a lengthy sentence? But what the
14 Sheikh does not recognize is that his antitotalitarianism,
15 antideterminist and antiessentialist alternative project of
16 comprehensive Muslim revolution, which was conceived and
17 practiced within the historical context of colonialism and
18 neocolonialism, is paradoxically centered in Muslim
19 totalitarianism, determinism and essentialism.
20 The sentence doesn't stop. This is his view of the
21 Sheikh's movement. In other words, he is exchanging one form
22 of totalitarianism for another. He sees the Sheikh's movement
23 as simply substituting one form of totalitarianism that has a
24 Mubarak dictatorship with another form of totalitarian
25 government, a Muslim state, a law based on the state of Muslim,
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46MMSAT7 Opening - Mr. Ruhnke
1 something that Mr. Yousry does not ever want to see come about
2 for his home country of Egypt.
3 There is a translation issue that may or may not come
4 up in this case in many of the prison visits. The translators
5 translate the word afendm, meaning Mr. or sir as if it meant
6 your eminence. So they have Mr. Yousry speaking to the Sheikh
7 as if he was somebody he greatly revered when in fact the
8 Arabic word afendm is simply sir or Mr. Whether we have to
9 fight about that or not remains to be seen.
10 Six particular allegations from the indictment. I
11 want to talk about specifics, not generalities, because the
12 allegations were very specific. I want to talk about the
13 bombing of the U.S.S. Cole. I want to talk about Mr.
14 Morvillo's statement that Mr. Yousry was a witness at the
15 Sheikh's trial, a defense witness at the Sheikh's trial.
16 I want to talk briefly about Abu Sayyaf, and I want to
17 talk about the February 2000 quote unquote, failure to deliver
18 a message. I want to talk about distracting the guards and I
19 want to talk about the anti-Jewish fatwah. I will do them
20 briefly. It has been a long day for you all. And I am not
21 going to have a chance to talk to you for a long time and I am
22 not going to have a chance to present evidence to you for a
23 long time.
24 Start with the U.S.S. Cole. Here are the facts and
25 this is the role of the bombing, that terrible bombing of a
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46MMSAT7 Opening - Mr. Ruhnke
1 naval destroyer that rocked us all in the fall of 2000. There
2 is a U.S. ship bombed in Aden, Yemen on October 12, 2000.
3 Several days later there is a call to Mr. Sattar that he should
4 somehow negotiate with the United States Government and use the
5 Cole as leverage to free the Sheikh. Nothing happens now for
6 nine months. And there is a prison visit on July 13, 2001 and
7 the entire discussion of the U.S.S. Cole takes about three
8 pages and it basically is brought to the Sheikh's attention
9 with permission from the attorneys. Ms. Stewart is there. And
10 the Sheikh says basically: What, are you kidding? Leave this
11 to the lawyers. Sattar should never ever be involved in any
12 kind of discussion like this. And they leave it by joking, by
13 saying, anyway, it was probably the FBI calling Sattar in the
14 first place and making up this story, and that's it. That's
15 the role that the bombing of the U.S.S. Cole plays in this case
16 and that's it.
17 A defense witness at the Sheikh's trial, that's
18 absolutely true. It is one of the few things I can say that I
19 agree with Mr. Morvillo that is absolutely true, that
20 Mr. Yousry testified as a defense witness at the Sheikh's
21 trial. There is more to the story than that sort of broad
22 headline. He testified as an expert in Arabic. He testified
23 for several defendants in the case in his role as an Arabic
24 interpreter on the meaning of various Arabic words and Arabic
25 phrases. To draw the conclusion that he was a defense witness
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46MMSAT7 Opening - Mr. Ruhnke
1 for the Sheikh, that may be technically accurate to say that's
2 true, but it is about as accurate as saying that the person
3 from the weather bureau comes in to say it was raining that day
4 as a witness for the defense in a case in all but most the
5 technical sense
6 There was a newspaper report discussing the kidnapping
7 of tourists that discussed the Sheikh and it is read during a
8 prison visit of May 19 and 20, 2001. And Mr. Yousry starts to
9 inform the Sheikh about the newspaper article and the Sheikh
10 says he already knows about it because another one of the
11 attorneys, Abdeen Jabarra, had already told him about this.
12 That's how this comes into this case. Nobody, nobody at this
13 table says in any size, shape or form that the Sheikh ordered
14 what happened in the Philippines to occur or knew about it
15 ahead of time, or anything of that nature. That's where Abu
16 Sayyaf comes in. Abu is an Arabic word that means father of,
17 so Abu Sayyaf is the father of Sayyaf. I may have it
18 backwards.
19 In February 2000, failure to deliver a message,
20 remember Mr. Morvillo talking about this, how they were trying
21 to get a message back from the Sheikh and the Sheikh wouldn't
22 give it to Mr. Jabarra. I think the suggestion was made
23 because he didn't trust Mr. Jabarra. The truth is oh so much
24 simpler and so common. Just basically a classic
25 misunderstanding of a conversation.
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46MMSAT7 Opening - Mr. Ruhnke
1 The truth is this. The Sheikh wanted to dictate a
2 letter about the sale of certain property that he had.
3 However, he had not paid Mr. Jabarra for several years and he
4 realized that he started dictating a letter and Mr. Jabarra
5 speaks Arabic and Mr. Jabarra might very well say, Sheikh, by
6 the way, as long as you're selling this house, why don't you
7 start paying some of the attorneys bills that are brought up
8 and two weeks later the whole issue is resolved. There will be
9 discussions of during that prison visit how Mr. Jabarra left
10 the room and left Mr. Yousry and the Sheikh alone by
11 themselves. If somebody wanted to sneak a message out or
12 deliver a message back, there was plenty of opportunity to do
13 that. It is a perfectly innocent conversation that's been
14 given an inaccurate spin by our government.
15 Distracting the guards. This is what one of the
16 attorneys refers to as her academy award or award conversation
17 when the guard came too close. The real purpose of all this
18 was to get the visit completed without having to explain what
19 was going on. This had been a practice. This wasn't the first
20 or last time that that kind of conversation had occurred
21 because nobody wanted a prison visit which was difficult to
22 arrange, stopped. People said, how come you're not answering
23 questions and just the interpreter is reading to the Sheikh?
24 So they set this thing up. It looks bad. In reality, it looks
25 bad, but there is nothing sinister going on. There is nothing
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46MMSAT7 Opening - Mr. Ruhnke
1 going on that justifies an inference that anybody thinks they
2 are doing anything wrong.
3 The ghostwritten fatwah. You will hear about this
4 fatwah that was published as having come from Sheikh Rahman
5 when in fact it did not. The evidence associated with that
6 hateful document is not admissible at all as to Mr. Yousry.
7 Remember when I said before, it gets a little hard, you have to
8 keep things separately. This is evidence that is not
9 admissible as to Mr. Yousry.
10 Why do I talk about it? Because when he learned about
11 it, when he learned from newspaper reports that there had been
12 this fatwah published, this hateful fatwah published attributed
13 to Sheikh Rahman, Mr. Yousry said, I'm the only one who talks
14 directly to the Sheikh. I'm the only Arabic interpreter that's
15 approved. I know that nothing like that was ever, ever
16 discussed between the Sheikh and any of the attorneys, and they
17 are going to blame me or they are going to blame the attorneys
18 for this. And when he raises this with Sheikh Rahman, when he
19 says Sheikh, how did this happen, how did this statement get
20 into the media, Mr. Sheikh Rahman turns to Mr. Yousry and says,
21 in English, Mr. Yousry, that is none of your business. A
22 perfect illustration of the nature of the relation that
23 Mr. Yousry had.
24 (Continued on next page)
25
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46MSSAM8 Ruhnke - opening
1 Another topic that nobody else has talked about, which
2 I will talk about, was when September 11, 2001 came it changed
3 all of our lives in many, many case that we can't even begin to
4 catalog. We are standing 6 blocks from where the World Trade
5 Center stood. The day after September 11, the FBI came to
6 Mr. Yousry and they asked him would you keep us informed as to
7 what is going on between the sheikh and his attorneys, what is
8 doing, what are they talking about, what kind of topics are
9 under review, and Mr. Yousry, believing, and still believing to
10 this day, that he has done nothing wrong except follow the lead
11 of the attorneys, over the next several months every time there
12 was a phone call, every time there was a prison visit, the FBI
13 would come knocking on his door and say what happened, what
14 took place? And it was a kind of a test I guess because at the
15 same time these things are being tape recorded and I suppose
16 they are trying to see what Mr. Yousry is doing or not doing.
17 And you will find that this is the evidence, that everything he
18 told the FBI was the truth.
19 They didn't believe he was doing anything wrong and
20 they didn't believe the attorneys were doing anything wrong and
21 therefore he was cooperative with the FBI. And it amounts to
22 particularly compelling evidence of somebody who as I started
23 off telling you is actually innocent of setting out to violate
24 the law. He thought what he was doing was so far removed from
25 violating the law that it didn't concern him to tell the FBI
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1 what was happening, tell the FBI what the discussions were
2 about, tell the FBI what was being discussed. He didn't think
3 he was doing anything wrong.
4 And when it comes to criminal intent, which is at the
5 heart of this case, when it comes to Mohammed Yousry, when it
6 comes to criminal intent none of us are given and none of us
7 have a machine in which we can look into someone's heart or
8 mind or soul and say, well, what did that person intend? What
9 was that person really trying to do? What was that person
10 thinking about? The government has taken onto itself the job
11 of proving beyond a reasonable doubt that Mr. Yousry intended
12 to violate the law, not that he relied on the attorneys, not
13 that he went about his business in a way that he thought was
14 correct, but that he knew was against the law and he intended
15 to violate the law, he did it deliberately, he did it and it
16 was no accident, and that is what they are taking onto prove to
17 you.
18 In a sense, the government has entered into a promise
19 and a contract. In fact, we are all part of that promise and
20 contract, and it's this: They have promised to prove it beyond
21 a reasonable doubt. You promised, when you promised to well
22 and truly try the case, to say if they don't, then we are
23 returning verdicts of not guilty in this case. It will be a
24 long time before we get to present any evidence to you.
25 Mr. Yousry is an innocent man. He is being wrongfully
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1 prosecuted in this case and it's going to be up to you to set
2 it right.
3 Thank you very much.
4 THE COURT: Ladies and gentlemen, it's a little past
5 but just about the time that I said that we would end each day,
6 so we will end for the day and we will pick up tomorrow morning
7 with the opening statement on behalf of Mr. Sattar, which will
8 be given by Mr. Paul.
9 Let me reiterate again the instructions which I have
10 given you.
11 Please remember not to talk about this case at all
12 among yourselves or with anyone when you go home tonight. As I
13 said, you can tell your family and friends that you are a juror
14 in a case but don't tell them anything else.
15 Remember, ladies and gentlemen, not to look at or
16 listen to or read anything about the case. If unavoidably or
17 inadvertently you see something simply turn away. You are in
18 the best position to hear what goes on in court, so please
19 don't look at or listen to anything to do with the case.
20 Remember always to keep an open mind, and I have
21 emphasized that to you also repeatedly. Keep an open mind
22 until you have heard all of the evidence, I have instructed you
23 on the law, and you have gone to the jury room to begin your
24 deliberations. Fairness and justice requires that you do that.
25 We will begin tomorrow morning at 9:30. I know your
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1 transportation will be taken care of. Have a very good evening
2 and I look forward to seeing you all tomorrow morning.
3 All rise please.
4 (Jury left the courtroom)
5 THE COURT: Please be seated all just for a moment.
6 When we met the other other day, the parties raised
7 with me a question with respect to the technology and I said my
8 preference is to have the parties work the screen and you all
9 were going to get a familiarization both with the podium and
10 with where we are on the system.
11 Has all that been done yet?
12 Everyone?
13 MR. RUHNKE: Yes. The one issue we raised with the
14 technical people was there is one sort of master control screen
15 in front of Ms. Baker right now which controls the whole set
16 up. And there is none at the podium. There is none at defense
17 counsel. We asked, and didn't get a reply, whether we can
18 possibly have one at defense counsel's table as well.
19 MS. BAKER: Just to add the little bit that I know on
20 that question from my office's computer and support staff,
21 actually I am told that there is another one of those up there
22 in front of your Honor, but that the way the courtroom is wired
23 currently they just can't make one reach back to the defense
24 table. We would certainly be happy to have it happen but I
25 have been told that it's just not able to be done at the moment
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1 and my impression was that there wasn't much optimism about
2 changing that. If your Honor has any way to look into it, but
3 I was told it was something to do with the wiring, that the
4 wiring won't run back there.
5 THE COURT: As far as I can see there is no reason for
6 me to have it if I am not controlling it. I can ask. I will
7 ask.
8 MS. BAKER: Your Honor, my understanding is it's the
9 courthouse staff people who would have to arrange for the
10 wiring.
11 THE COURT: I understand what you are saying. Okay.
12 But at this point you have worked out at least a mode
13 of operating that you will direct that the document be shown to
14 the witness and the examiner and the court and not on the
15 screens for the jury or the big screen until I say so.
16 MS. BAKER: Yes, your Honor, that is correct.
17 THE COURT: Okay.
18 Anything else before we break?
19 MR. STERN: Two other things.
20 One is it's our collective opinion, and especially
21 having listened to your final instructions, that you should
22 tell the jury what case it is. I say that because I think it's
23 going to be -- this is a case people are going to be
24 discussing. It was on the cover of the Metro section of the
25 New York Times today. I think it's easier to say to family
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1 members when they say, hey, did you see whatever it maybe they
2 see, you know, I can't talk about it because I am on that case,
3 than to say I am on something for 6 months and by coincidence I
4 can't talk about it. It doesn't make sense us to. I know the
5 government doesn't have a position yet but I think that is our
6 position on that.
7 The other issue I have is we have been given 3500
8 material on Pat Fitzpatrick who, it's my understanding, is
9 testifying tomorrow and in that 3500 material, referring
10 specifically 3516P and Q, there are parts that are redacted. I
11 know you don't have it but it comes after the words "pertinent
12 developments" and the government in their opening suggested
13 that they were going to talk about FISER intercepts that were
14 ongoing and separate from the criminal investigation. Not
15 knowing what this says I can't comment on whether it's relevant
16 to that or relevant to anything. But it seems to me at a
17 minimum you should examine it and it should be given to you in
18 camera and you should make a determination rather than us being
19 given redacted copies of statements of Mr. Fitzgerald and no
20 one other than the government knowing what they say.
21 THE COURT: All right.
22 MR. MORVILLO: Your Honor, just so the record is
23 clear, you have reviewed these documents before. They were
24 given to the court prior to the September 28 hearing in 2003,
25 so you have seen these. The portions that are redacted are, in
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1 the government's opinion, not the subject matter of Mr.
2 Fitzgerald's testimony, first of all, and, secondly, also work
3 product. It may be that during the course of his testimony
4 some of this will become the subject matter of his testimony
5 and if that happens of course it would become his 3500 material
6 to the extent it wasn't privileged. And so I am happy to
7 provide the court in camera this evening copies again of this
8 document, assuming your Honor still does not have them in
9 chambers.
10 THE COURT: Well, I thought I would have filed at the
11 time anything that I dealt with in connection with the past
12 hearing. I don't think I would still have that stuff. I can't
13 be sure, first. And, second, I think under the statute if
14 there is a question with respect to redaction you do have to
15 give it to me for me to look at it. I may not be able to rule
16 until I hear from Mr. Fitzgerald on direct to see if it's
17 relevant to the subject matter of the direct, but, yes, you do
18 have to give it to me tonight.
19 Secondly, after I have reviewed it, I think I have
20 to -- unless the parties agree otherwise -- see that it gets
21 filed under seal so that it's available for review. So, yes,
22 give it to me tonight.
23 MR. MORVILLO: I will send it over forthwith. My only
24 point is you had previously undertaken this exercise under very
25 similar circumstances.
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1 MR. TIGAR: If I may add, your Honor, at the earlier
2 hearing the question was whether it was producible at all under
3 26.2 at a motion hearing for the issues there being tried. The
4 subject matter of this direct testimony is obviously different.
5 The second point I wish to make is that I think there
6 is that Goldberg case back in 1976 in which the court held that
7 the work product doctrine didn't apply to Jencks material. I
8 can get that citation to the court as soon as I can get onto
9 Westlaw, but I do remember that quite clearly.
10 THE COURT: Well, the reason for the redaction, I take
11 it, is while there is an argument of work product the basis for
12 the redaction is not work product but not relevant to the
13 subject matter of the direct, right?
14 MR. MORVILLO: That is correct. It's a hybrid, your
15 Honor, but the primary thrust is that it's not relevant to the
16 subject matter of his direct.
17 THE COURT: Because if it were relevant to the subject
18 matter of the --
19 MR. MORVILLO: That is correct, we would have given it
20 to you already.
21 THE COURT: You would have given it to the defense
22 already.
23 MR. MORVILLO: We would have moved to preclude those
24 portions that we didn't believe are work product from being
25 disclosed. But, again, that is a circular argument. In other
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1 words, we won't be adducing testimony that they we think would
2 waive the privilege.
3 MR. TIGAR: Your Honor, the basis -- I didn't mean to
4 interrupt the court.
5 THE COURT: There would be a real question whether if
6 it really did relate to the subject matter of the direct
7 whether there was a substantial need then for the work to be
8 produced.
9 MR. MORVILLO: Absolutely, your Honor.
10 MR. TIGAR: Your Honor, the basis of our concern, and
11 why we are joining Mr. Stern, is that in opening government
12 counsel gave a reason that they said was why the government
13 didn't step in and stop these lawyer-client calls and he said
14 there was an intelligence investigation going on and described
15 it in some little detail.
16 Now, I don't know if Mr. Fitzgerald is the witness
17 through whom they intend to offer that. Certainly that was a
18 part of what he was saying when we were here in September
19 across the street. I just want to flag that as an issue
20 because we really haven't seen the full range of material that
21 it seems logical would have been generated by Mr. Fitzgerald in
22 the course of that activity.
23 MR. MORVILLO: Mr. Tigar is free to cross examine Mr.
24 Fitzgerald all about his documents tomorrow.
25 THE COURT: Okay.
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1 All right. Anything else?
2 Please be here at 9:15 tomorrow morning.
3 (Trial adjourned to June 23, 2004 at 9:15 a.m.)
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