23 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 11 of the trial.

See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm

Lynne Stewart web site with case documents: http://www.lynnestewart.org/

        2    ------------------------------x
        4               v.                           S1 02 Cr. 395 (JGK)
        5    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        6    a/k/a "Dr. Ahmed," LYNNE STEWART,
        6    and MOHAMMED YOUSRY,
        7                   Defendants.
        8    ------------------------------x
       10                                         New York, N.Y.
       10                                         June 23, 2004
       11                                         9:30 a.m.
       12    Before:
       13                          HON. JOHN G. KOELTL
       14                                            District Judge
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1                              APPEARANCES
        2    DAVID N. KELLEY
        2         United States Attorney for the
        3         Southern District of New York
        3    ROBIN BAKER
        4    ANTHONY BARKOW
        5    ANDREW DEMBER
        5         Assistant United States Attorneys
        6    KENNETH A. PAUL
        7    BARRY M. FALLICK
        7         Attorneys for Defendant Sattar
        8    MICHAEL TIGAR
        9         Attorneys for Defendant Stewart
       10    DAVID STERN
       11    DAVID A. RUHNKE
       11         Attorneys for Defendant Yousry
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        1             (Page 2241 SEALED)
        2             THE COURT:  The other issues that I had as preliminary
        3    issues are the envelope for the jurors is a clerk's office
        4    envelope.  That is the only envelopes they give us these days.
        5    I don't have a problem with that.
        6             I do want to talk about whether the government has any
        7    views with respect to the jurors talking to their family and
        8    friends about what case they are on and I want to talk briefly
        9    about the redacted memos, but I don't see any reason to do
       10    either of those at the side bar.
       11             All right?
       12             MR. MORVILLO:  Very well.
       13             (In open court; jury not present)
       14             THE COURT:  Please be seated all.  We are waiting on
       15    one juror who missed the first transportation.
       16             We talked yesterday about whether the jurors should be
       17    able to tell those who are close to them what case they are on.
       18             Does the government have a view with respect to that?
       19             MR. MORVILLO:  Your Honor, the government shares the
       20    defense concern that was addressed by Mr. Stern yesterday and
       21    would have no objection to the court instructing the jury that
       22    they can tell their immediate family members what they are
       23    doing, but that they should be instructed that they should tell
       24    their family members that they can't tell anybody what they are
       25    doing.  I recognize that it may be a little bit of a slippery
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        1    slope, but there are concerns that have been raised.
        2             THE COURT:  All right.
        3             If I forget remind me.  I will tell the jurors at
        4    least by the end of the day that they can tell -- I have told
        5    them that they can tell people that they are a juror in a case
        6    but don't tell them anything else.  And I will tell them that
        7    they can tell those who are close to them what case it is and
        8    that the judge has told them not to talk about the case and
        9    that is it.  And they are not violating my orders by doing that
       10    and they are not compromising their anonimity.  The purpose of
       11    the instruction is to prevent them from having further
       12    conversations that would get into a discussion of the case or
       13    hearing things about the case from other people.  So that is
       14    what I will tell them.
       15             MR. TIGAR:  Your Honor, may we request a slight
       16    addition to that instruction?
       17             THE COURT:  Sure.
       18             MR. TIGAR:  It would be that to repeat that if anyone,
       19    including a member of their family, does try to talk to them
       20    about the case, they should report that.  And I say that
       21    because I know that government counsel were thinking of their
       22    experience in past cases.  People who know that other people
       23    are jurors sometimes make silly, intemperate remarks, usually
       24    intended as a joke.  I can remember trying a case where jurors
       25    would go to lunch with a juror badge and people, on their way
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        1    to the cafeteria, would say things.
        2             So it would be good to have a policing mechanism just
        3    to make sure that we know about any contacts of any kind with
        4    jurors even if they turn out, as they usually do, to be
        5    trivial.
        6             THE COURT:  All right.
        7             The other subject that we discussed at the end of the
        8    day yesterday was the issue of two redacted memos and I have
        9    several comments on those memos.
       10             First, the redactions -- and it may be a copying
       11    issue -- contained some material that was blacked out in such a
       12    way that I could not read, and it appeared to be material that
       13    was classified, a very small amount, but I need to see it.  And
       14    it may have simply been copied with highlighter or the like.
       15             The second point I would make on the redacted memos is
       16    I obviously can't make a determination, and under the statute I
       17    shouldn't make the determination, until a witness testifies on
       18    direct.  I don't know if the material relates to a subject
       19    matter of the direct, but I do have a general observation.
       20             There is a reasonable amount of redacted material in
       21    those two memos which I have to consider after direct.  I have
       22    obviously read the material already and the redacted material
       23    for the most part begins with an introduction, the gist of
       24    which is -- paraphrasing -- here is a summary of the FISA
       25    intercepts that I reviewed, and then there is a long redaction,
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        1    and then at the end it says something like that is a summary of
        2    what I reviewed.
        3             One wonders -- assuming that that material doesn't
        4    relate to the subject matter of the direct -- why I am being
        5    asked to do this.  The preference should be on not redacting
        6    rather than redacting.  If there is a memo, part of which is
        7    going to be produced, there should be a question, well, why
        8    don't we turn it over rather than redact it?  Because to the
        9    extent that there are redactions, I have to review them, make
       10    the determination whether they are relevant to the subject
       11    matter, and the FISA intercepts are plainly a matter that is
       12    fully disclosed and may not be the subject of direct but,
       13    again, I simply repeat that the preference should be not to
       14    redact rather than to redact.
       15             And the problem with redactions is that I have to make
       16    the judgment after direct.  It takes some time.  I do it
       17    carefully, and the problem is that when it takes me time to do
       18    it after direct, there is always the possibility that it may
       19    take so much time that a witness gets called back without a
       20    real purpose.  So I lay that out for you.  And, of course, I
       21    will decide.  When this has come up sometimes in the past and I
       22    have made similar talks, the reaction has been "here," but all
       23    I do is follow the statute and follow the procedures that are
       24    laid out.  And you can think about that.
       25             I have nothing further this morning.  We are still
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        1    waiting on the one juror.
        2             MR. MORVILLO:  Your Honor, with respect to the order
        3    and your instructions to the jury about to whom they may speak
        4    on the issue of which case they are serving on, it was the
        5    government's proposal that that be limited to family members.
        6    I am not sure that the court agrees but from reading the
        7    transcription here the way you described it was they can tell
        8    people and that would be broader than the government would
        9    request of your Honor.
       10             THE COURT:  What I would want to do is to tell them --
       11    my initial instruction told them that "anyone else" includes
       12    members of your family and your friends.  You may tell them you
       13    are a juror in a case.  And I can tell them you can tell your
       14    family and friends or I can tell them those -- which I
       15    sometimes say -- those who are close to you, which I think is
       16    probably a better way of phrasing it.
       17             MR. MORVILLO:  The government agrees with that, your
       18    Honor.
       19             MR. BARKOW:  May I confer with Mr. Fallick for a
       20    moment because I wanted to bring something to the court's
       21    attention but I wanted to ask him something first.
       22             THE COURT:  Oh, sure.
       23             MR. BARKOW:  Your Honor, having conferred with Mr.
       24    Fallick, I wanted, while we are waiting, to bring another issue
       25    to the court's attention.  This relates to the Sattar search
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        1    materials which the government intends to call a witness with
        2    respect to these materials either late this week or early next
        3    week and I have reached an agreement with Mr. Fallick.  I don't
        4    know the other defendants' positions on this but most of that
        5    evidence, for the court's information, is offered solely
        6    against Mr. Sattar, although there is some of it being offered
        7    against multiple defendants.
        8             But with respect to my agreement with Mr. Fallick,
        9    what the government intends to do is lay the foundation for all
       10    of the exhibits that the government wishes ultimately to offer,
       11    and then offer into evidence those exhibits for which Mr.
       12    Fallick has no objection, not offering before the jury
       13    immediately those exhibits for which Mr. Fallick does have an
       14    objection, and therefore with respect to Mr. Sattar at least
       15    the court would not need to make evidentiary rulings
       16    prepublication to the jury with respect to those exhibits we
       17    offer.  And then on a moving-forward basis Mr. Fallick and I
       18    will continue to discuss those other exhibits for which the
       19    government laid a foundation, see if we can work out any
       20    differences, and narrow those differences and bring those
       21    differences to the court's attention.
       22             So I basically wanted to make the court aware that at
       23    least with with respect to Mr. Sattar and Mr. Fallick's
       24    position, that is the approach we intend to take.  So the court
       25    will not, with respect to us and Mr. Sattar at least, need to
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    make evidentiary rulings as I offer them.  But I don't know the
        2    other defendants' positions at this moment right now.
        3             MR. TIGAR:  I have already been in conversation with
        4    Mr. Barkow about some of those exhibits and particularly as to
        5    some which are being offered "only as to Mr. Sattar" but which
        6    nonetheless in our view are such that they would leap any
        7    cautionary instruction or limiting instruction the court might
        8    give, so if Mr. Barkow will talk to us about that we will be
        9    happy to join along with any procedure.  But I want to signal
       10    for the court in the presence of government counsel that we do
       11    think there are some exhibits there that ought not to be shown
       12    to this jury until the court has looked at them.
       13             MR. BARKOW:  I should have actually said I did have a
       14    preliminary discussion with Mr. Tigar, as well as with Mr.
       15    Habib, and I don't know ultimately specifically what their
       16    position is but we will also include them.  We haven't even
       17    started the dialogue yet with respect to Mr. Yousry.  But I am
       18    not sure.  But we will get them involved as well.
       19             THE COURT:  Okay, thank you.
       20             MR. MORVILLO:  Can I change topics for a minute, your
       21    Honor?
       22             THE COURT:  Sure.
       23             MR. MORVILLO:  During the direct examination of Mr.
       24    Fitzgerald this morning, if it happens this morning, I intend
       25    to ask him generally about his involvement in the underlying
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        1    trial with Sheikh Abdel Rahman and I thought that perhaps
        2    during his examination that would be an appropriate time for
        3    the court to take judicial notice of the facts to which the
        4    parties have agreed.  I can interrupt his testimony for that
        5    fact, and we could do it after, we can do it before.
        6             What is the court's preference with respect to that?
        7             THE COURT:  My preference is to do it after and the
        8    reason that I say "do it after" is when I ruled on the issue of
        9    the conviction I said -- and I thought I would hear from the
       10    parties actually -- that I thought that there was an additional
       11    instruction that was appropriate and I thought the parties
       12    would take me up on it.
       13             MR. MORVILLO:  The additional instruction, if my
       14    recollection is correct, is that these defendants were not
       15    parties to that underlying criminal case and the government has
       16    no objection to the court --
       17             THE COURT:  It was a little more extensive than that
       18    and I don't have it in front of me.
       19             MR. MORVILLO:  Your Honor, we don't have a copy of
       20    your Honor's order but perhaps we can obtain a copy.
       21             THE COURT:  What I said was the court would also be
       22    prepared to instruct the jury further that the fact of
       23    conviction and the subsequent appellate review is not evidence
       24    of the guilt of Sheikh Abdel Rahman and none of the defendants
       25    is bound by those determinations because none of the defendants
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        1    was a party in that case.
        2             MR. TIGAR:  We would request the court give that
        3    instruction at the time the court takes judicial notice in
        4    accordance with the text that we had agreed upon.  And I
        5    apologize to the court that we didn't include that in our
        6    agreement.
        7             THE COURT:  All right.  Well, then, if you have a
        8    draft of the judicial notice, I will take judicial notice and
        9    give the limiting instruction and include also my addition to
       10    the limiting instruction.
       11             And do the parties have a preference as to when I
       12    should do that?
       13             MR. MORVILLO:  The government has no objection to it
       14    happening prior to Mr. Fitzgerald's testimony, during or after,
       15    but we would like it to happen today, if we could.
       16             MR. TIGAR:  We have no objections to Mr. Morvillo's
       17    proposal that it be done before the end of Mr. Fitzgerald's
       18    testimony.
       19             I would also ask the government to make Mr. Fitzgerald
       20    aware that the court will be taking judicial notice, that the
       21    court will be instructing the jury -- and I say this because
       22    our negotiations about what was to be taken judicial notice of
       23    were important to us and I wouldn't like Mr. Fitzgerald to
       24    blurt out something or say something that leapt over the bounds
       25    that we agreed upon.
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        1             MR. MORVILLO:  I have already gone over it with him,
        2    your Honor.
        3             THE COURT:  Okay.  Well, the defendants don't care
        4    whether it's before, during or after, so the government should
        5    tell me when they want it and give me a copy of the judicial
        6    notice and I will simply add the additional instruction.
        7             MR. MORVILLO:  The government would prefer that your
        8    Honor do it during Mr. Fitzgerald's direct examination.
        9             THE COURT:  All right.  Just say at an appropriate
       10    time we ask the court to take judicial notice.
       11             MR. MORVILLO:  I assume it's something you will just
       12    instruct the jury.  Is it also something you want as a separate
       13    document that has your instruction that you are intending to
       14    file?
       15             THE COURT:  No, I will just explain it to them.  I
       16    will read it to them and I can repeat it again in my final
       17    instructions, which they will have.
       18             MR. MORVILLO:  At the break, your Honor, I have a copy
       19    of our letter here which has the parties' agreement in it.  I
       20    will make a photocopy of it and hand it up to your Honor.
       21             THE COURT:  Okay, great.
       22             MR. MORVILLO:  Thank you.
       23             THE COURT:  I will go back to the robing room and
       24    await notice that all of the jurors are here.
       25             MR. RUHNKE:  Before you do that, your Honor, great
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        1    timing, and I am sorry --
        2             THE COURT:  Please be seated all.
        3             MR. RUHNKE:  It's a great feeling of power to have a
        4    whole room stand up.
        5             You had raised just as a housekeeping matter
        6    yesterday, and I won't discuss it in detail, a commitment that
        7    a juror has to keep and what our response would be.  We have
        8    talked about it and at an appropriate time we would like to
        9    tell you what our response is.
       10             THE COURT:  I know what your response is going to be
       11    and I will see where we are in terms of whether we sit for
       12    about 2 hours on the morning of July 1st.
       13             MR. RUHNKE:  Thank you, your Honor.
       14             MR. MORVILLO:  Your Honor, I have an extra copy now of
       15    that letter, so I will just hand it up.
       16             THE COURT:  All right.
       17             Thank you, I appreciate it.
       18             Okay, thank you, Mr. Morvillo.
       19             I will see you shortly.
       20             (Recess)
       21             (Continued on next page)
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        1             (In open court; jury not present)
        2             THE COURT:  We have ordered lunch for 1:00 and the
        3    audio/visual people tell me that they will attempt to set up a
        4    monitor, a control monitor, on the defense table also and they
        5    will try to do that later this afternoon.
        6             MR. RUHNKE:  Thank you, your Honor.
        7             THE COURT:  Bring in the jury.
        8             MR. MORVILLO:  Your Honor, after Mr. Paul's opening
        9    statement would we be taking a break so we can retrieve our
       10    first witness?
       11             THE COURT:  Yes.
       12             MR. MORVILLO:  As the Court may be aware, we don't
       13    have a witness room here in the courthouse, and we are told
       14    that we can't get one without the Court's permission.  The last
       15    trial that was in this courtroom they used a room back there.
       16    Our understanding is that's off limits and that's fine.  Just
       17    so the Court is aware, we don't have a room right now.  Our
       18    witnesses are back in our office and we are going to make
       19    arrangements to try to shuttle them over here as quickly as
       20    possible, and we are hoping to get a room over here where we
       21    can hold them.
       22             THE COURT:  Perhaps a room on another floor.  If you
       23    talk to Mr. Kirsch about another room either on the third floor
       24    or someplace else.
       25             MR. MORVILLO:  The third floor would be fine with the
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        1    government.  Can we tell him we have your approval for that?
        2             THE COURT:  Yes.
        3             MR. MORVILLO:  Thank you.
        4             Mr. Fitzgerald is ready to go.  He is over there at
        5    the U.S. Attorney's Office.  If we take a break after
        6    Mr. Paul's opening --
        7             THE COURT:  I am sure we will take a break.
        8             (Jury present)
        9             THE COURT:  Good morning, ladies and gentlemen.  It is
       10    good to see you all.
       11             When we left yesterday we were in the middle of
       12    opening statements.  As I've told you, opening statements are
       13    the explanations by the lawyers about what they expect the
       14    evidence in the case to be, what the evidence will show or not
       15    show in the case.  Opening statements are not evidence.  They
       16    are the statements by the lawyers to help you understand what
       17    they expect the evidence to show or not to show.
       18             The final opening statement will be given on behalf of
       19    Mr. Sattar by Mr. Paul.
       20             Mr. Paul.
       21             MR. PAUL:  Thank you, your Honor.
       22             May it please the Court, good morning.
       23             Several weeks ago when we began the long process of
       24    jury selection Judge Koeltl introduced the parties to you with
       25    regard to this case.  However, since it was so long ago and by
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             46NMSAT2                 Opening - Mr. Paul
        1    now it probably seems longer ago, let me once again introduce
        2    myself, my cocounsel and my client to you.  My name is Kenneth
        3    Paul.  My cocounsel is Barry Fallick.  Seated next to him is
        4    our sign the Ahmed Abdel Sattar.
        5             I always look forward to speaking directly to a jury
        6    because we only get two opportunities to do that in the course
        7    of a trial.  Usually, we are standing at the podium and we are
        8    questioning witnesses, and this is one of our only chances to
        9    directly look at you, talk to you, and explain to you at least
       10    in an opening what we believe the evidence is that will be
       11    presented, how the evidence will be presented, and what it will
       12    show in the course of this trial.
       13             At the end of the trial, again, I will have the
       14    pleasure of talking with you so that together we can review the
       15    evidence and evaluate what was presented as it unfolded before
       16    us during this trial.  And it will be a long trial.  And we
       17    will determine and we will discuss together how I believe you
       18    should apply the facts because you are the finders of the fact
       19    to the law as instructed to you by Judge Koeltl.
       20             You've been already given an overview by the Court of
       21    what the charges consist of and you have now heard that the
       22    government -- you have now heard from the government as to what
       23    they believe the evidence will show.  I differ with the
       24    government because I believe that after you have heard all the
       25    evidence -- and I emphasize the word all -- you will conclude
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             46NMSAT2                 Opening - Mr. Paul
        1    that the government has failed to satisfy their burden of
        2    proof, which is to prove each element of each charge beyond a
        3    reasonable doubt.
        4             So what is this case about and what will the evidence
        5    show?  It is really a case about words.  My client, Ahmed Abdel
        6    Sattar, has been charged with very serious crimes based on
        7    words that were spoken by him and others.  Your job will be a
        8    very difficult one because you will have to determine what was
        9    my client's intent when he spoke those words.  The government's
       10    evidence will consist primarily of conversations between my
       11    client and others, and it is from those conversations the
       12    government will argue their case.
       13             The reason we are here today, what brings us to this
       14    very courtroom, is that my client has already spoken.  He has
       15    told this court he is not guilty of these crimes.  And I submit
       16    to you that after you have heard and had a chance to evaluate
       17    the evidence or lack of evidence, you, too, will reach that
       18    conclusion.
       19             Though we all spent a very long time selecting you,
       20    and you have each assured us that you will be fair and
       21    impartial, as I stand here today I am very nervous; not just
       22    because this is an important trial with much at stake for my
       23    client, because it is that; but also because I recognize that
       24    even though you have been told and will be told again by Judge
       25    Koeltl that the government has the burden of proof throughout
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             46NMSAT2                 Opening - Mr. Paul
        1    this trial.  The burden of proof remains at this table, the
        2    government's table.  It never moves over to this table.  There
        3    is no burden of proof by any defendant to have to prove
        4    anything to you.  And this is because my client, Mr. Sattar, as
        5    he sitting here right now, is presumed innocent, and that
        6    presumption of innocence remains with him as we sit here today,
        7    as we sit here through the many months we will sit and listen
        8    to evidence, as we sit here and listen to the summations, as we
        9    sit here and listen to Judge Koeltl's instructions at the end
       10    of the case.  He is protected by that presumption of innocence
       11    and it remains with him throughout, even at the time that you
       12    get up to go into that jury room to begin your deliberations.
       13    And it is only until and unless you are all satisfied that the
       14    government has in fact established beyond a reasonable doubt
       15    each element of each charge with regard to Mr. Sattar, and
       16    then, and only then, is that presumption perhaps shattered.
       17             And that is the law.  And though that is the law, my
       18    nervousness and fear stems from the reality of today's world,
       19    which does not lend itself to people being very objective or
       20    fair once they hear some of the words and names, you are going
       21    to hear at this trial.  Some of these you have already heard in
       22    the government's opening remarks yesterday morning.  Some of
       23    them were even mentioned by Mr. Tigar in his opening remarks.
       24    Quite simply, the mere mention of certain words or names
       25    understandably make -- cause you to feel such anger or
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             46NMSAT2                 Opening - Mr. Paul
        1    discomfort that you may even flinch when you hear some of these
        2    words and names.  And you are going to have to fight against
        3    those reactions if you are to truly fulfill your oath as a
        4    juror and evaluate the evidence in an impartial, fair, and
        5    objective way.
        6             Words, places and names you will hear in no particular
        7    order throughout this trial, words such as Jihad, Muslim,
        8    terrorist or terrorism, the Islamic Group, fatwah, Sheikh, Abu
        9    Sayyaf, the U.S.S. Cole, Luxor terrorist attack, World Trade
       10    Center, Osama Bin Laden.  Given the daily events of terrorism
       11    around the world, which is all we read and hear about in the
       12    papers and on TV, certainly since 9/11, you must not allow the
       13    mere mention of these words and names to impair your ability to
       14    be fair and impartial.  We live in fear that something dreadful
       15    might happen again to us here in the United States.  This is
       16    only normal.
       17             However, as normal as that may be, you cannot allow
       18    that fear to cloud your ability to objectively evaluate this
       19    case.  And as difficult as that may be, as we all sit in here
       20    inside this courtroom that once was the very shadow of the
       21    World Trade Center, you have been chosen to serve on this jury
       22    because each of you, each and every one of you have assured us
       23    that you will abide by the oath you took and be able to do just
       24    that.  We become a nation confronting an enemy that's
       25    everywhere and nowhere.  Our vulnerability has caused us all to
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             46NMSAT2                 Opening - Mr. Paul
        1    change, and we recognize that.
        2             And, consequently, our government has been going after
        3    those it sees as its enemy.  Rest assured, ladies and
        4    gentlemen, this man, Ahmed Abdel Sattar, is no enemy of the
        5    United States.  He is certainly not a terrorist.  Nothing could
        6    be further from the truth.
        7             As you've already heard from the government, the
        8    evidence in this case will include interceptions made by the
        9    government of all of my client's telephone conversations,
       10    e-mails and faxes for how long?  Seven years.  Seven years.
       11    This resulted in approximately 90,000 interceptions of my
       12    client.  From these 90,000 interceptions you are going to hear
       13    just a few, or at least a relatively small number from which
       14    the government alleges has formed the charges in this case
       15    against my client.  It is for the most part based upon these
       16    conversations that the government has charged Ahmed Abdel
       17    Sattar with the following offenses:  Conspiracy to defraud the
       18    United States, conspiracy to kill and kidnap persons in a
       19    foreign country, solicitation of crimes of violence.  The
       20    reason these charges sound so serious is because they are.
       21             But when I tell you that this is a case about words
       22    and nothing more, that is because as serious and violent as
       23    these crimes sound, rest assured, there will not be any
       24    evidence and not even one allegation by the government that
       25    anything, that anything ever happened to anyone as a direct
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             46NMSAT2                 Opening - Mr. Paul
        1    result of anything my client ever said or did.
        2             Having said that, however, let me caution you, ladies
        3    and gentlemen, that you are indeed going to hear evidence of
        4    violence during this trial.  And you got a bit of that from the
        5    government's opening yesterday.  There will be evidence of
        6    violence regarding hostages who were held by a rebel group in
        7    the Philippines.  This group calls itself Abu Sayyaf.  And in
        8    or about March of 2000, it issued a long list of demands.
        9    There were many demands.  And these demands were issued on the
       10    Philippine government in return for the release of the hostages
       11    they were holding.  And included on this very long list of
       12    demands for the release of these hostages was a demand for
       13    Sheikh Rahman to be released from prison here in the United
       14    States.  That is the connection of that incident to this case.
       15             You will also hear evidence of violence concerning the
       16    killing and wounding of many tourists at an archeological site
       17    in Luxor, Egypt on November 17, 1997.  In determining the
       18    connection and importance of that incident to this case, keep
       19    in mind that this act of brutal violence -- and it was an act
       20    of brutal violence -- took place four months after there had
       21    been a call for peace by the Islamic Group with the Egyptian
       22    government.  And this so-called peace initiative was supported
       23    by Sheikh Rahman.  If this is alleged to have in fact been done
       24    by the Islamic Group, then I submit to you it was clearly done
       25    by some splintered group operating on its own without authority
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             46NMSAT2                 Opening - Mr. Paul
        1    from anyone.
        2             The government will also present evidence of violence
        3    concerning the bombing of the United States naval vessel, the
        4    U.S.S. Cole.  This took place in Yemen on October 12, 2000 and
        5    resulted in the death of many U.S. crew members, as well as the
        6    wounding of several U.S. crew members.
        7             What is the connection of this bombing to this case,
        8    you may ask?  Let me tell you.  The only connection the U.S.S.
        9    Cole has to this case is a phone call that Sattar received on
       10    October 25, 2000 from an individual you have already heard
       11    about and you will be hearing about during this trial, Rifa'i
       12    Ahmad Taha Musa, or simply Taha.  In this conversation Taha
       13    told Sattar that he had reported -- had heard it reported that
       14    one of the people responsible for the bombing involving the
       15    U.S.S. Cole was an Egyptian male.  What Taha wanted to know was
       16    if this information could be utilized in any way for purposes
       17    of negotiating with the U.S. Government in gaining better
       18    prison conditions for Sheikh Rahman.
       19             Taha apparently believed that if it could be suggested
       20    that this incident somehow occurred as a reaction to the severe
       21    prison conditions of the Sheikh, then perhaps the U.S.
       22    Government would indeed reevaluate the Sheikh's severe prison
       23    restrictions.  Sattar told Taha that he had absolutely no way
       24    of knowing whether this information could be utilized in any
       25    way.  But what he tells Taha is, he says, listen, I will pass
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             46NMSAT2                 Opening - Mr. Paul
        1    this along to one of the lawyers representing the Sheikh;
        2    specifically, Ramsey Clark.  I'll pass it along to Mr. Clark
        3    and let him decide whether this can be utilized in any way in
        4    negotiating with the government concerning Sheikh Rahman's
        5    prison conditions.
        6             As it turns out, Sattar never does pass this
        7    information along to Ramsey Clark.  In fact, the evidence will
        8    show that nothing thereafter regarding the U.S.S. Cole was ever
        9    discussed or happens until nine months later, on July 13, 2001,
       10    when the conversation that Sattar had had with Taha is conveyed
       11    to the Sheikh during a prison visit.  That, ladies and
       12    gentlemen, is the entire extent of any connection of the U.S.S.
       13    Cole to this case.  It is nothing but talk.
       14             In fact, the government will admit and the Court will
       15    so instruct you at the appropriate time that with respect to
       16    the Abu Sayyaf kidnapping of hostages, with respect to the
       17    Luxor killings, with respect to the U.S.S. Cole bombing, there
       18    is no allegation that my client had anything to do with or
       19    participated in any way in any of these events.  Once again,
       20    let me make this perfectly clear.  The evidence will show that
       21    in fact there are no victims who the government will refer to
       22    and say, ladies and gentlemen, these people are the victims
       23    caused by what Mr. Sattar said or did.  That's not going to
       24    happen.  The government does not claim that Ahmed Abdel Sattar
       25    or anyone else on his behalf ever caused harm to anyone, or
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             46NMSAT2                 Opening - Mr. Paul
        1    that any of his conversations or actions resulted in injury to
        2    anyone.
        3             What it comes down to is that my client is charged
        4    with intending or agreeing with others through his
        5    communications that violence should occur.  In fact, ladies and
        6    gentlemen, the evidence will show that Mr. Sattar never had any
        7    such intent.  So what you as the jurors will have to decide,
        8    after you have listened to all of the evidence in this case,
        9    is, what was Ahmed Abdel Sattar's actual intent or state of
       10    mind during these many conversations?  How do you determine
       11    what's intent based upon conversations or words that were used?
       12             I submit to you, ladies and gentlemen, that in order
       13    for you to be able to make a factual determination of the true
       14    intent of my client when you listen to any communications he
       15    may have had, you will have to ask yourself and evaluate two
       16    important things.  First, you will have to place these
       17    intercepted communications in context.  This means you will
       18    have to evaluate the circumstances surrounding the
       19    conversations at the time they were made.  And, second, you
       20    will have to evaluate and understand the person himself, his
       21    background, his political and religious beliefs, who is this
       22    person, Ahmed Abdel Sattar?  What is he about?  During this
       23    trial we will attempt to show you both, who Ahmed Abdel Sattar
       24    really is and in what context these intercepted conversations
       25    were made.
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             46NMSAT2                 Opening - Mr. Paul
        1             Let's start with what the evidence will show about my
        2    client.  Unless you know who he is, where he comes from, what
        3    makes him tick, you really cannot evaluate or begin to
        4    understand his true intentions based only on his reported
        5    words.
        6             He was barn in Cairo, Egypt in 1959, where several of
        7    his immediate family still reside.  In 1979 to 1981, he served
        8    in the Egyptian army, which is the only time, I might add, he
        9    ever possessed a weapon.  He lived in Egypt until he came to
       10    New York on a tourist visa and settled in Brooklyn in 1982.  He
       11    thereafter met and married his wife Lisa, an American citizen
       12    who was born and raised in this country.  She grew up in a
       13    catholic home.  And in 1993, she converted to the Muslim faith.
       14    He and his wife have four children together and they currently
       15    live in Staten Island.  In 1985, he received his U.S. residence
       16    card and in 1989 he became a United States citizen.
       17             In 1988, Mr. Sattar began working at the U.S. Post
       18    Office where he worked right up until the day he was arrested
       19    in April 2002, which, I might add, is the only time he has ever
       20    been arrested in his life.
       21             Contrary to the government's argument and the serious
       22    charges brought against Sattar, he is not a man of violence,
       23    and everything he ever did was done in the open.  His life was
       24    an open book for you to see, for me to see, for them to see.
       25    You will see from that and hear from his many interviews he had
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             46NMSAT2                 Opening - Mr. Paul
        1    with the press that what Sattar knew from living in this
        2    country for many years was that if you wanted to make your
        3    case, which for him was to make people aware of the horrific
        4    conditions suffered every day in Egypt, as well as the American
        5    government's terrible policies toward the Middle East, then you
        6    had to do what I referred to as work the press.  This means he
        7    had to continue to be available to the press and make his
        8    position known.  He did this time and time again.
        9             You will learn from his many interviews with the press
       10    that Sattar's position regarding violence and terrorism is very
       11    clear.  He personally condemns terrorist acts of violence.  In
       12    fact, he condemns all killing, doesn't matter where it happens.
       13    He believes that killing innocent people is not a solution for
       14    anything.  Does he sympathize, however, with those who
       15    represent armed opposition?  Yes.  But only if it is in
       16    self-defense to those who oppress the helpless, such as the
       17    Egyptian government with its own people, and then only if
       18    negotiations fail.
       19             Is he saddened that America is no longer viewed in the
       20    eyes of the Islamic world as it once was, namely, the oasis for
       21    democracy and hope?  Yes.  Is he opposed to the American
       22    government's policies when it comes to support for Egypt,
       23    Israel and the Middle East?  Yes.  Do his politics and his
       24    opposition to America's policies toward Egypt, Israel, and the
       25    Middle East cause him to want any harm to come to this country?
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             46NMSAT2                 Opening - Mr. Paul
        1    No.  Never.
        2             You have already heard a great deal about Sheikh Omar
        3    Abdel Rahman, and much of the evidence in this case will have
        4    to do with the Sheikh.  In fact, as I recall, Mr. Morvillo in
        5    his opening, the very first thing he did yesterday, put the
        6    picture of the Sheikh right up on that screen.  Therefore, to
        7    fully understand my client it is also important for you to have
        8    some understanding of how and why was my client drawn to Sheikh
        9    Omar Abdel Rahman.  What was it about the Sheikh that attracted
       10    Sattar to him?  The evidence will show that Sheikh Rahman, like
       11    Sattar, is Egyptian.  He was considered by many Egyptians to be
       12    very brave simply because he did not fear speaking out against
       13    the cruel treatment of millions of Egyptians by the Egyptian
       14    government.
       15             (Continued on next page)
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             46NSSAT3                 Paul - opening
        1             He didn't just express his opposition to the
        2    government of Egypt in general terms by talking of the terrible
        3    poverty and living conditions of millions of Egyptian citizens.
        4    But he spoke out against the corruption of the government
        5    itself and lectured on how Muslims should revolt against the
        6    oppressor.  To the sheikh that meant Nasser, Sadat or Mubarak.
        7    And for the reason being they failed their own people.
        8             Sheikh Rahman was a clerk, an Imam, or leader of
        9    prayer, and an Islamic religious scholar.  Sattar, a very
       10    religious man himself, related to the sheikh's criticism of the
       11    Egyptian government.  He too views it as a government which
       12    refuses basic rights for individuals who simply may oppose or
       13    speak out against the inequalities that the government
       14    encourages.  Those who dare to speak out are rewarded in most
       15    cases with imprisonment without any trial or opportunity to
       16    defend oneself.  And then ultimately the worse imaginable
       17    prison conditions and torture.
       18             And that, ladies and gentlemen, is for those who are
       19    fortunate enough not to simply be killed or disappear without a
       20    trace never to be heard from again.
       21             Sattar was living in the United States for many years
       22    before the sheikh came here on a tourist visa in 1990.  And
       23    since Sattar was born and lived in Egypt until he was 23 years
       24    old, it is not surprising that he had not only heard of the
       25    sheikh but admired him from afar.  Sattar's own politics stem
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             46NSSAT3                 Paul - opening
        1    from growing up in Egypt under one dictatorship after another
        2    and seeing firsthand how the people have no hope for a better
        3    life.
        4             Here in the United States he was politically
        5    frustrated that the U.S. government would think only of Egypt
        6    as an ally and friend since it is seen as a more moderate
        7    Arabic country than some of its neighbors.  To Sattar, however,
        8    it is a country he loves but has always been governed by an
        9    oppressive government.  Everything about Sattar's politics --
       10    everything -- is directed at wanting to see change in Egypt.
       11    And it was for this reason he looked to the sheikh as a symbol
       12    and a spokesman for that very possibility.  If any of his
       13    politics is directed towards the United States, it is only as
       14    it pertains to the United States foreign policy towards the
       15    Middle East.  He is a U.S. citizen who loves this country --
       16    his country -- deeply.  The fact that he may disagree with its
       17    policies does not lessen his love for it.
       18             So it was this admiration for the sheikh's politics
       19    toward Egypt, coupled with Sattar's own Islamic activism, that
       20    caused him to attend the sermons given by the sheikh at
       21    different mosques here in New York City and New Jersey.  When
       22    the sheikh was arrested in 1993 and faced various charges in
       23    this court, Sattar was approved by the court to work as a
       24    paralegal, along with other paralegals, to assist several
       25    lawyers who represented the sheikh.
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             46NSSAT3                 Paul - opening
        1             One of the lawyers he met and worked with during this
        2    time period was his co-defendant in this case, Lynne Stewart.
        3    Another lawyer he worked with in assisting the sheikh was
        4    Ramsey Clark who, as you heard several times, was the U.S.
        5    Attorney general during the Lyndon Johnson administration.
        6             Sattar also met at this time his other co-defendant,
        7    Mohammed Yousry, a translator who also worked on the sheikh's
        8    case.  Both Sattar's closeness and belief in some, but
        9    certainly not all -- and I emphasize "not all" -- of the
       10    sheikh's opinions continued even after the sheikh was convicted
       11    and sentenced to life imprisonment.  To this day Sattar firmly
       12    believes that the sheikh was unjustly convicted for the crimes
       13    he was charged with.
       14             As early as 1997, when the sheikh had already been
       15    placed in solitary confinement in a special housing unit in
       16    prison, he expressed his wishes to those who were working on
       17    his case.  What he wanted was a committee to be formed to
       18    monitor his case, letters to be sent to both politicians and
       19    newspapers, and for press releases issued to the media.
       20    Whatever role Sattar found himself in after the sheikh was
       21    tried and convicted was not one that he sought.  It was thrust
       22    upon him simply due to both his closeness to the sheikh as a
       23    paralegal on his case and working on his case, and a believer
       24    in the sheikh's courage against Egypt.
       25             He attempted to satisfy the sheikh's wishes.  He
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             46NSSAT3                 Paul - opening
        1    helped form a committee to monitor the sheikh's case and gather
        2    support for the sheikh even after he was convicted.  This had
        3    several purposes.  One was to lobby and pressure prison
        4    officials for better conditions of confinement for the sheikh.
        5    This was necessary since the sheikh had been placed under the
        6    most restrictive and severe conditions imaginable.  He had been
        7    segregated from other inmates and placed in solitary
        8    confinement and was eventually cutoff completely from the
        9    outside world and any contact with all visitors except his
       10    lawyers.
       11             Another purpose for the committee was simply to
       12    attempt to keep the sheikh's name out there in the public
       13    arena, both in the press as well as the Islamic world.  It was
       14    important to Sattar that the sheikh not be forgotten simply
       15    because he was in prison.  He felt it was his duty and
       16    obligation that the sheikh's voice continued to be heard
       17    throughout the Islamic community.  This was important because
       18    it was Sattar's belief that the sheikh was one of the few
       19    remaining Arab leaders whose voice should not be silenced.
       20             All of this required Sattar to play what I describe as
       21    rough politics.  He did this by becoming a demonstrator, a
       22    communicator, and press secretary, all on behalf of the sheikh.
       23             Clearly, ladies and gentlemen, Sattar was not, never
       24    was, was never looked at or viewed as a policy maker.  He was
       25    never a decision-maker, or even, I might add, ever a member of
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             46NSSAT3                 Paul - opening
        1    this group you have heard about referred to as the Islamic
        2    Group.
        3             However, having been placed in this role he found
        4    himself communicating with individuals he had never
        5    communicated with before or for that matter to this date ever
        6    met.  And from those communications the government has brought
        7    these charges.  Of course, being Egyptian and a political
        8    activist Sattar was very familiar with the Islamic Group and
        9    its movement for change within Egypt.  He also knew that the
       10    sheikh was one of the religious and spiritual leaders for the
       11    Islamic Group.
       12             So what is the Islamic Group?  The Islamic Group was
       13    one of many such groups within Egypt that had fought for many
       14    years for change.  Since its inception in the late 1970s until
       15    the present, all of its activities and actions were exclusively
       16    focused on and targeted toward the Egyptian regime.  But by the
       17    time the sheikh was incarcerated the Islamic Group was a
       18    movement whose leadership was scattered over three different
       19    continents in and out of prisons.  It was an organization that
       20    by 1997 was splintered and confused.
       21             These factions and contradictions arose within the
       22    various members in a power struggle over questions of the peace
       23    initiative, whether or not they should attempt to become a
       24    political party, and how the Islamic Group should communicate
       25    and negotiate, if indeed at all, with the Mubarak government.
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             46NSSAT3                 Paul - opening
        1             Due to Sattar's initial role as a paralegal for the
        2    sheikh he communicated with many different individuals who
        3    represented these varying factions.  He became a messenger for
        4    the sheikh.  These individuals reached out to him, not the
        5    other way around.  Because they knew he was in contact with the
        6    sheikh and the sheikh's lawyers.  It was through these many
        7    communications that he also came to speak with one of the more
        8    militant individuals connected with the Islamic Group, this man
        9    Taha.  Like the others who reached out to Sattar, Taha was an
       10    individual he had never previously spoken with or met.
       11    Certainly not a friend as described yesterday by the
       12    government.
       13             Let me take this moment once again to caution you.  As
       14    I indicated earlier, your true challenge, I think, in this case
       15    is not to allow your emotions to get in the way of your being
       16    objective and impartial.  I say this now because in fact, as
       17    you heard yesterday, you will hear about a statement issued by
       18    Osama Bin Laden and signed by Taha and others in 1998 calling
       19    for Muslims to kill Americans.  It was a statement, I might
       20    add, which the leaders of the Islamic Group both denounced and
       21    criticized Taha for having supported.  They felt it distracted
       22    from their true enemy, the Egyptian government, and only caused
       23    more problems for openly opposing America.
       24             You will also see a videotape that was broadcast in
       25    September of 2000.  In this tape Taha is seen along with Osama
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             46NSSAT3                 Paul - opening
        1    Bin Laden and others where they, like others before and others
        2    after them, called for the release of Sheikh Rahman.  Again, I
        3    implore you not to let the mere mention or even in this case
        4    viewing of Osama Bin Laden prejudice your ability to
        5    objectively evaluate the evidence as it pertains to Sattar.
        6    That Sattar had contact with many different individuals,
        7    including Taha, who was more extreme than others, says nothing
        8    about his own beliefs and certainly nothing about his intent.
        9    Don't allow yourself to apply guilt against Sattar simply by
       10    those he associated and spoke with.  In other words, avoid the
       11    trap of guilt by association, because it's such an easy and
       12    unfair trap to fall into.
       13             I told you some of what you will learn about the
       14    person of Ahmed Abdel Sattar, as well as how he came to be
       15    communicating with others, in order to assist you in
       16    determining the intent behind these words that you are going to
       17    hear, but, as I said, you will also have an opportunity through
       18    the evidence in this case to evaluate and form an understanding
       19    of his intent by putting his conversations in context of what
       20    was happening at the time they took place.
       21             As with any conversation, you cannot just look at the
       22    literal meaning of the spoken words to determine one's true
       23    intent.  You have to look behind and beyond the words
       24    themselves.  This is true of the communications my client had
       25    involving the fatwah, the peace initiative, and the efforts to
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             46NSSAT3                 Paul - opening
        1    assist an individual in Egypt, which we also heard about
        2    yesterday -- Atia.
        3             Let's start with the fatwah.
        4             To simply look at the words alone, there is absolutely
        5    no way to describe them except to say they are hateful and they
        6    are ugly.  I don't believe anyone would disagree with that.
        7    But in what context were they used?  When were they used?  Why
        8    was this statement issued in the name of the sheikh?  What was
        9    Sattar's true intent, meaning, and purpose in assisting Taha in
       10    writing this fatwah or statement?  Was it something done and
       11    expressed in the heat of the moment?
       12             The evidence will show that this statement was issued
       13    in early October 2000.  It was not issued in a vacuum of world
       14    events.  Since many of you may not recall the news events being
       15    reported during this time of what was happening in Israel, let
       16    me remind you.
       17             On September 28, 2000, Ariel Sharon, who at that time
       18    was the hardline head of Israel's parliamentary opposition,
       19    made an extraordinary visit to Jerusalem's holiest site, the
       20    compound around al-Aqsa Mosque.  This was considered by many in
       21    the Muslim world to be nothing more than a provocation.  It was
       22    clearly done to provoke and instigate a reaction on the part of
       23    the Palestinians, and it achieved its goal.  There were, in
       24    fact, demonstrations.
       25             It was also during this time on October 2, 2000, that
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             46NSSAT3                 Paul - opening
        1    a French cameraman captured shocking footage which was
        2    continually broadcast over the TV day in and day out.  I am
        3    sure many of you may actually remember those vivid images very
        4    well.  It was footage of a 12-year-old Palestinian boy being
        5    protected by his father who was hovering over him against a
        6    wall, pleading with those who were shooting, and in this case
        7    it was the Israeli soldiers shooting at the Palestinians who
        8    were demonstrating, and he was against this wall hovered over,
        9    pleading, putting his hands up telling them to stop.  And the
       10    footage went on and it showed not only the shooting of the
       11    father but the killing of that 12-year-old boy.
       12             It was during this time period, and in this context,
       13    that conversations were intercepted between Taha and Sattar.
       14    In these conversations you will hear how Sattar expressed
       15    sadness over what had happened in Israel.  He was also upset
       16    that even though the Palestinian people and Islamic community
       17    around the world were demonstrating against what was happening,
       18    there were no so-called Arab leaders speaking out and
       19    expressing their own outrage over these incidents.
       20             You will learn that Sattar is a firm believer that
       21    when atrocities are committed against his people, the great
       22    leaders should stand and speak out, stand strong and speak out
       23    against such actions.  You will also hear how he felt that the
       24    Arab world community was abandoned by their leaders during this
       25    time.  It was clear to Sattar that it was his duty to have the
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             46NSSAT3                 Paul - opening
        1    sheikh respond to what was happening in Israel, whether in jail
        2    and isolated from the world or not.
        3             So when Taha called Sattar and tells him that he wants
        4    to write a statement in the name of the sheikh to respond to
        5    the news and he asks Sattar if he would edit it and assist him,
        6    Sattar agrees.  Taha then writes this statement, or fatwah, in
        7    the name of the sheikh and sends it to Sattar to review, which
        8    Sattar does.  He changes the title of this statement to make it
        9    clear that it is directed at the Israelis, and then he sends it
       10    out for it to be issued on a Web site.
       11             To Sattar this statement simply represented a way to
       12    get the people talking and wake the Arab leaders up to at least
       13    speak out regarding what was happening to the Palestinian
       14    people.  He never, ever, considered this statement to be either
       15    a solicitation of violence or a terrorist statement.  To him it
       16    was only a statement to defend those who were being trampled on
       17    by Israel.  It was an attempt to show those who were being
       18    oppressed that there were leaders still out there, such as
       19    Sheikh Rahman, who had not forgotten them.
       20             Were the words terrible?  Absolutely.  But what was
       21    Sattar's true purpose and intent in agreeing to assist in the
       22    writing of this statement?  It was done to have the sheikh's
       23    voice heard during a major world event.  It was also Sattar's
       24    own reaction in the heat of the moment to the silence of other
       25    Arab leaders for not speaking out on behalf of those who have
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             46NSSAT3                 Paul - opening
        1    no voice of their own.
        2             It clearly was never his intent for anyone to be
        3    killed.  It is also clear that it was received in the Islamic
        4    community the way it was intended.  It provided the sheikh's
        5    voice to the debate against Israel's policy toward the
        6    Palestinians and people in fact demonstrated and spoke out.  It
        7    was not issued for any other purpose than this and it certainly
        8    was not issued by Sattar with the intent on his part to either
        9    conspire to kill or to solicit violence.
       10             Let me talk about what the evidence will show
       11    concerning the peace initiative.
       12             What was the peace initiative?  The initiative was
       13    pronounced by the Islamic Group on July 5, 1997.  It was the
       14    Islamic Group's attempt to negotiate in peace with the Egyptian
       15    government.  It was an attempt to gain something in return for
       16    taking the position that the Islamic Group would negotiate in
       17    good faith and through peaceful means.  What they wanted to
       18    achieve was a positive response from the Egyptian government.
       19             They had hoped that in return for this peace
       20    initiative the Egyptian government would release prisoners who
       21    were being held without ever having been afforded due process
       22    or, at a minimum, they wanted better treatment for those who
       23    were being held in the dungeons of the Egyptian prisons.  Years
       24    went by with the initiative in place and nothing really
       25    significant ever happening by way of a response from the
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             46NSSAT3                 Paul - opening
        1    Egyptian government.  In fact, in late 1999, four members of
        2    the Islamic Group were murdered by the Egyptian government and
        3    it appeared, to some at least, that the peace initiative was
        4    not working and in its existing form.
        5             What developed thereafter were different positions
        6    from many individuals.  Ultimately this resulted in at least
        7    two different factions that differed on how to best negotiate
        8    with the Egyptian government.  One faction was located from
        9    within Egypt and it had contact with the prisoners themselves.
       10    They wanted to continue to negotiate the way they had been for
       11    years.  This faction realized that even though there had been
       12    very little progress and change on the part of the Egyptian
       13    government, certainly toward the prisoners, certainly in
       14    releasing them, giving them better conditions, however, they
       15    were fearful that the government would retaliate against the
       16    prisoners if there was a breakdown in negotiations.
       17             The other faction located outside of Egypt felt the
       18    Islamic Group should take more of a hardline position.  In
       19    other words, they believed that unless the Egyptian authorities
       20    began to do something to show their good faith, such as the
       21    release of prisoners, better prison conditions, or at least due
       22    process for new prisoners, then why should they continue to
       23    take a peaceful approach?
       24             This other faction believed in negotiating with the
       25    Egyptian government from a position of strength.  Like in any
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             46NSSAT3                 Paul - opening
        1    negotiations between two parties, it was their belief that even
        2    if they were incapable or had the ability to do this they
        3    should at least let the Egyptian government believe that they
        4    might very well.
        5             In other words, the Egyptian government need not know
        6    that they had not the ability or capability.  And those who
        7    felt this way, like Taha, believed that the government would
        8    never do anything unless there was this concern or fear on
        9    their part.  And though this group also accepted the initiative
       10    in principle, they refused to offer it free of charge to the
       11    Egyptian government.  In other words, they refused to endorse
       12    the initiative unconditionally and without benefits in return
       13    for the Islamic Group and others.  They felt the initiative had
       14    hurt, not helped, the Islamic Group and that the Islamic Group,
       15    as well as the prisoners, would have been better off if the
       16    initiative was implemented in stages.
       17             They believed that unless they negotiated from a
       18    position of at least potential strength the Egyptian government
       19    would never respond.  Why should it?  They had nothing to fear
       20    and it wasn't exactly in the government's interest to release
       21    those who they believed were working against its very
       22    existence.  This is what Sattar was facing when he talked with
       23    Taha and others about the initiative.
       24             You will hear from Sattar's conversations with the
       25    sheikh's son, and others, that he was simply pushed into this
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             46NSSAT3                 Paul - opening
        1    role and placed in the middle of these different factions.  He
        2    did, however, feel very strongly that all viewpoints should be
        3    heard and presented to the sheikh.  What Taha wanted was simply
        4    not to be shut out by those who felt differently.  He also
        5    wanted support from the sheikh so that he would not be ignored.
        6    Sattar simply felt that Taha's position should at least be
        7    heard because he too felt the peace initiative was not working.
        8             Sattar believed that based on history at least the
        9    Egyptian government would only negotiate out of fear of
       10    possible military actions.
       11             That doesn't mean, ladies and gentlemen, that he
       12    believed or had any such intentions that military or violent
       13    acts should actually be carried out or that the Islamic Group
       14    should return to the days of violence.  It simply meant that
       15    the Islamic Group should negotiate by putting more pressure on
       16    the Egyptian government and renegotiate from a position of
       17    strength, even if in reality the Islamic Group had absolutely
       18    none.
       19             Sattar was asked to find out what the sheikh's
       20    position was on this matter and at least support the idea that
       21    Taha's position be considered -- nothing more, nothing less.
       22    And that is all Sattar attempted to do by communicating with
       23    the sheikh about the initiative.
       24             That brings me to another subject of this indictment
       25    which you will be asked to consider as well, as mentioned by
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             46NSSAT3                 Paul - opening
        1    Mr. Morvillo yesterday.  This has to do with an individual
        2    named Atia.  There are several conversations between Sattar and
        3    individuals in Egypt regarding this man Atia that take place
        4    over several months.  This isn't just one or two conversations
        5    contained within a few weeks.  Sattar found himself connecting
        6    Taha and others with those inside of Egypt who were allies of
        7    Atia and were trying to help him get out of the country and
        8    away from the Egyptian authorities.
        9             The evidence will show that Sattar attempted to do
       10    nothing more than assist Atia in escaping from Egypt.  He did
       11    not even know who this person was at first -- this person who
       12    was trying to get out.  All he came to realize was that Atia
       13    was a fellow Egyptian in need of help.  If Taha had any
       14    additional agenda beyond wanting to communicate his own point
       15    of view to Atia, Sattar did not share in that agenda.  Sattar's
       16    only concern was to help a brother get out of Egypt.
       17             It certainly was no secret to Sattar that if anyone
       18    was a fugitive from the Egyptian authorities he was in grave
       19    danger if caught.  The result would be torture and/or death.
       20    And it was for this reason, and this reason alone, that Sattar
       21    assisted in providing the communication link for Atia to others
       22    in attempting to flee Egypt.  Tragically, as it turned out,
       23    Sattar's worst fears were realized.  Atia was in fact captured
       24    and killed by the Egyptian police on October 18, 2000.  Sattar
       25    understandably was devastated because he felt responsible.  It
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             46NSSAT3                 Paul - opening
        1    was his belief at the time that the Egyptian authorities had
        2    somehow intercepted his communications with Atia and his allies
        3    and, consequently, were able to track him down.
        4             It is interesting to note that the only evidence in
        5    this case where anyone -- anyone -- is ever a victim during
        6    either the time period that the government maintains was a
        7    conspiracy to kill or kidnap or the conspiracy to solicit
        8    violence was the killing of Atia, and that was done by the
        9    Egyptian police.
       10             In conclusion, let me just say that both the
       11    allegations that Sattar conspired with others to kill and
       12    kidnap persons in a foreign country as stated in Count 2, and
       13    that he solicited others to engage in violent terrorist
       14    operations as stated in Count 3, were to have taken place from
       15    September '99 through the date of his arrest in April 2002.
       16             The evidence will show during this entire period of
       17    time the United States government was intercepting all of my
       18    client's communications right up to one month before he was
       19    arrested.  Amazing as it might seem but for those 7 years,
       20    beginning in March '95, when coincidentally he was actually
       21    assisting in the defense of the sheikh during his trial, and
       22    continuing these interceptions all the way to March 2002, they
       23    listened to every word spoken, e-mailed or faxed by my client.
       24    They listened very carefully to my client during this entire
       25    period.  They listened to his communicating with Taha in
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             46NSSAT3                 Paul - opening
        1    assisting the fatwah, in issuing the fatwah.  They listened to
        2    his assisting Atia, and they listened while he received the
        3    sheikh's opinion on the initiative.  And yet it is obvious that
        4    during this entire time the government did not believe that any
        5    of my client's communications was of very much concern.
        6    Certainly he did not present any cause for alarm or fear of a
        7    realistic, imminent threat or danger to anyone.
        8             I submit to you that the government did not believe,
        9    nor did it have any reason to suspect, that any of my client's
       10    communications would result in the killing or kidnapping of
       11    anyone or that a crime of violence was actually being solicited
       12    and about to be committed.  Why do I say this?  Because the
       13    evidence will show that the communications with the sheikh
       14    concerning his withdrawal of support for the initiative was in
       15    May and June of 2000.  The conversations regarding the
       16    assistance to Atia took place for several months and continued
       17    to October 2000.  And the fatwah -- this fatwah that was issued
       18    in October 2000 -- and yet the government did not arrest my
       19    client until April 2002, over 1-1/2 years after the fatwah.
       20             You can be sure, ladies and gentlemen, that if the
       21    government really suspected or feared something was about to
       22    occur, or there was any concern that my client was a real
       23    threat to anyone, they would not have awaited to arrest him
       24    until 1-1/2 years later.  And you can't just casually sweep
       25    this fact under the rug as Mr. Morvillo did yesterday at the
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             46NSSAT3                 Paul - opening
        1    very near end of his opening remarks.  You can't just say, oh,
        2    the reason for the delay in any arrest was really due to
        3    national security interests that took precedence over any
        4    criminal investigation.  Really?  Took precedence over someone
        5    about to be killed or violence about to happen?  I don't think
        6    so.
        7             I submit to you that it's more likely that Sattar
        8    wasn't arrested for over 1-1/2 years because the U.S.
        9    authorities never had any cause to fear Sattar because he was
       10    never a true danger to anyone.
       11             All of what I have said only underscores the
       12    importance for each of you to keep an open mind and wait until
       13    you have heard all of the evidence.  If you do that, and you
       14    evaluate the facts of this case objectively in a fair and
       15    impartial way, then you will have upheld your oath as a fair
       16    and impartial juror that you have assured us you would do, and
       17    no one could ask more of you than that.
       18             I am also confident that if you do this and apply the
       19    facts of the case to the law as given to you by Judge Koeltl at
       20    the end of this case, then you will agree that the government
       21    has failed to prove Ahmed Abdel Sattar guilty beyond a
       22    reasonable doubt as to any of the charges and your verdict
       23    should be just that -- not guilty.
       24             Thank you.
       25             THE COURT:  All right.
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        1             Ladies and gentlemen, that concludes the opening
        2    statements and we will take a break now for 15 minutes and then
        3    we will turn to that portion of the trial in which the
        4    government is given the opportunity to present evidence to you
        5    and the defendants are given the opportunity to cross examine,
        6    and we will pass out the legal pads and pens and envelopes for
        7    you at that time.
        8             So remember my continuing instructions not to talk
        9    about the case, keep an open mind.
       10             Have a good break and I will see you in about 15
       11    minutes.
       12             All rise please.
       13             (Jury left the courtroom)
       14             MR. MORVILLO:  Your Honor, there are one or two legal
       15    matters I want to discuss before Mr. Fitzgerald testifies.  We
       16    can do that after the break before we come back out.
       17             THE COURT:  All right.  You can have a seat.
       18             MR. MORVILLO:  With respect to the memoranda that we
       19    discussed earlier this morning, your Honor, the July 5, 2000
       20    memo and the October 13, 2001 memo written by Mr. Fitzgerald,
       21    the redactions thereto, the first issue I wanted to talk about
       22    was the portions that are classified.
       23             Your Honor, we can't simply hand that to you, bring it
       24    over here to court without a court security officer escorting
       25    those documents directly to you.  As the court may recall, the
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        1    government moved back in September of 2003 under CIPA for a
        2    court order protecting those documents and the court granted
        3    that order at the time.  So I don't think that even once the
        4    direct examination of Mr. Fitzgerald is concluded today that
        5    your Honor will have an opportunity to review the secret
        6    portions of those memos until arrangements can be made with a
        7    court security officer and perhaps a new CIPA motion filed with
        8    the court sometime this evening perhaps.
        9             It may be as simple as resubmitting what we previously
       10    submitted.  So to the extent the court decides that that is
       11    3500 material after reviewing it and CIPA doesn't apply, Mr.
       12    Fitzgerald may have to come back if there are further questions
       13    based on the secret material.
       14             Secondly, the government continues to maintain that
       15    the redacted portions of these documents are not relevant to
       16    the subject matter of Mr. Fitzgerald's testimony and I think
       17    the court will find, based on the limited direct examination on
       18    these issues that I intend to do, there will be no reason to
       19    disclose these matters.  But the government does believe that
       20    this information is protected work product of Mr. Fitzgerald,
       21    of the government, and therefore is appropriately redacted and
       22    necessary to protect at this time.
       23             The second issue that I wanted to raise with your
       24    Honor was something that I raised with defense counsel at the
       25    prior break and it relates to the judicial notice issue.  My
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        1    intention had been to ask Mr. Fitzgerald during his direct
        2    examination what is meant by the term seditious conspiracy.  My
        3    understanding is that his answer would be it is a conspiracy or
        4    a criminal agreement to wage a war against the United States,
        5    nothing more than that.
        6             My understanding is that the defendants object to that
        7    and we bring it to your attention because we are going to need
        8    a ruling from your Honor as to whether it is admissible
        9    testimony.
       10             My concern, the government's concern, is that the jury
       11    is going to hear that Sheikh Abdel Rahman was convicted of a
       12    seditious conspiracy but have absolutely no idea what that
       13    means.  And without Mr. Fitzgerald to testify or perhaps for
       14    the court to inform the jury based on the language of the
       15    statute that it is in fact a conspiracy to wage or levy war
       16    against the United States is relevant, admissible, nonconfusing
       17    and therefore the government would submit that testimony should
       18    be allowed.  It's very limited and that is all we are asking
       19    for.
       20             MR. TIGAR:  Your Honor, we moved in limine to exclude
       21    it because it would display the most appalling ignorance of the
       22    text of the applicable statutes under the constitutional
       23    history of sedition.  A seditious conspiracy is not levying war
       24    against the United States.  That is treason.  That is defined
       25    in the Constitution and that is quite some other thing.  A
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        1    seditious conspiracy is a conspiracy to oppose or against the
        2    authority of the United States or the laws thereof.
        3             In any case, your Honor, we don't see the prospect of
        4    jury confusion.  We don't think Mr. Fitzgerald should be in the
        5    position of instructing the jury about it and we see no reason
        6    for the court to do so.
        7             THE COURT:  I agree with that.  But the parties worked
        8    out a stipulation with great care about what the jury would be
        9    instructed about the nature of the conviction and I explained
       10    how the conviction would fit into this case and this was the
       11    stipulation, appropriate limiting instruction with an
       12    additional limiting instruction which the parties agreed upon,
       13    and it appears to me that the request is to go further than
       14    that and I agree that that is not within the stipulation and
       15    not within the limited way that I said that the conviction
       16    could be used.
       17             So that is not a proper question and you can
       18    separately argue to me as to whether as a matter of law I ever
       19    define seditious conspiracy by reading matters of law to the
       20    jury, matters of law for the court and not issues of fact.  But
       21    I think that for purposes for which the conviction is being
       22    offered the stipulation or the agreement by the parties as to
       23    the judicial notice that I should take is sufficient.
       24             Now, with respect to your first issue, obviously we
       25    will await to see what the direct is.
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        1             MR. MORVILLO:  Your Honor, with respect to the second
        2    issue, the government can provide the court with Judge
        3    Mukasey's instructions that were given during the underlying
        4    trial and of course will not require Mr. Fitzgerald.  We will
        5    raise the issue with you at the appropriate time as to whether
        6    the jury should be instructed as to the meaning of sedition.
        7             (Continued on next page)
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        1             MS. BAKER:  Your Honor, just a logistical issue
        2    relating to the classified portions of the memorandum.  As Mr.
        3    Morvillo explained, the government would need to seek the
        4    assistance of the court security officer to bring the document
        5    to your Honor.  If your Honor wishes to get it sooner, we could
        6    seek to reach the court security officer during the lunch
        7    recess and see if an appropriate person could be located to
        8    bring it over to your Honor at lunchtime.  That would require
        9    the government to essentially resubmit to your Honor unchanged
       10    its prior CIPA submission with the memorandum with it.
       11             THE COURT:  Do the defendants have a view on this?
       12             MR. RUHNKE:  Your Honor, our view is the government
       13    ought to get it to you as soon as possible.  My view.
       14             THE COURT:  I'm sorry?
       15             MR. RUHNKE:  That's my view.  I don't know if anybody
       16    has a different view.  It seems obvious it is something that
       17    your Honor has to review in making a Jencks determination.  You
       18    ought to get it as soon as possible.  That's our particular
       19    view.
       20             THE COURT:  You know, it has been many months since I
       21    reviewed the materials with respect to the issues of CIPA And
       22    what, if any, result there was under CIPA, whether this was
       23    some of the passages for which the government offered an
       24    alternative statement as a substitute or whether these were
       25    simply passages that, under the terms of the statute, didn't
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        1    reasonably have to be disclosed.
        2             MS. BAKER:  To refresh your Honor's recollection,
        3    there were two Fitzgerald documents that your Honor reviewed
        4    before the last hearing as to which the government sought
        5    relief under CIPA.  As to one document the government offered
        6    an unclassified substitution which your Honor approved.  That
        7    was a different document.  As to this particular document that
        8    we are discussing, the government presented your Honor with the
        9    redacted version, which is the same as the version currently.
       10    And when I say redacted in this context, I mean with certain
       11    secret portions blacked out.  We submitted that redaction to
       12    your Honor along with an unredacted version for your Honor to
       13    compare it to, and as to this particular document your Honor
       14    agreed that the secret portions that had been blacked out could
       15    remain blacked out and did not need to be disclosed to the
       16    defendant.
       17             THE COURT:  I don't know what the direct is,
       18    obviously.  The way in which this came up last time was the
       19    issue was a narrow issue that was at issue on the prior
       20    testimony.  And, second, the witness was never called on
       21    direct.  The witness was called by the defendant.  So there was
       22    never any 26.2 determination, no Jencks Act issue.  It all --
       23             MS. BAKER:  In the interest of getting the document to
       24    your Honor as quickly as possible, we would ask permission to
       25    try to reach the court security officer over the lunch break.
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        1    He would presumably need to make specific arrangements to send
        2    over the document.  So we would ask permission to essentially
        3    resubmit the prior CIPA filing.  We submit that your Honor will
        4    find that even though you're looking at the redactions to the
        5    memorandum now in a different context that you will nonetheless
        6    conclude that the things that are redacted, because they are
        7    secret, are a very small portion of the entire document.  And
        8    we submit that even though you're now looking at it in a
        9    different context, that those redactions will prove to be
       10    equally as irrelevant in this context as they were in the prior
       11    context.
       12             THE COURT:  All right.  You can reach me over the
       13    lunch break.
       14             MS. SHELLOW-LAVINE:  Your Honor, before I break, I
       15    want to make sure that Ms. Baker realizes that I believe that
       16    there are two memoranda that are at issue.  One is dated July
       17    5, 2000 and one is dated October 13, 2001.
       18             MS. BAKER:  It is the government's understanding that
       19    your Honor is reviewing two memoranda as to things that the
       20    government redacted because they are outside of the scope of
       21    Mr. Fitzgerald's testimony; and as Mr. Morvillo said earlier,
       22    because they touch on sensitive subject matters, including
       23    government work product, that that affects two documents, but
       24    that the more narrow issue of things that were blacked out
       25    because they are classified only affects one document.  And I
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        1    thought that we were just now discussing just the one issue.
        2             THE COURT:  I'm looking at the documents.
        3             MR. MORVILLO:  Your Honor, the July 5, 2000 memo was
        4    entirely declassified.  There is nothing in that document --
        5             THE COURT:  I see that.  It is only 3516(q).  And the
        6    number of redactions in that memo for classified reasons is
        7    fairly small.  I appreciate that you can't tell that because it
        8    falls within simply the portion that's marked redacted.
        9             MR. MORVILLO:  Actually, your Honor, I believe
       10    although you can correct me if I'm wrong, that in 3516(q), the
       11    secret portions are blacked out And the redacted portions are
       12    whited out.  So there is a distinction.
       13             THE COURT:  Can the defendant see what's blacked out?
       14             MR. MORVILLO:  They can see the blacking out.
       15             THE COURT:  Thank you.
       16             Okay.
       17             (Recess)
       18             (Jury not present)
       19             THE COURT:  Let's bring in the jury.
       20             MR. MORVILLO:  Your Honor, the government is going to
       21    offer during Mr. Fitzgerald's direct examination several
       22    transcripts that were introduced in evidence during the
       23    underlying Abdel Rahman trial and at some point the government
       24    will request the opportunity to read those to the jury.  Some
       25    of them are quite long.  And for purposes of a quick
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        1    presentation we don't feel it is necessary to have
        2    Mr. Fitzgerald on the stand when we do that, unless the Court
        3    has an objection to that.
        4             MR. TIGAR:  Your Honor, we had been informed that
        5    there were transcripts.  We had not been informed that
        6    Mr. Fitzgerald was their sponsor.  With respect to that we did
        7    have 106 material that we were intending to bring.  It is not
        8    important to me because we didn't know that and therefore --
        9             THE COURT:  Let me ask Mr. Fletcher to hold the jury
       10    up just so -- I wasn't sure if someone was coming in.
       11             Hold on one moment.
       12             Ladies and gentlemen, please.
       13             Mr. Tigar.
       14             MR. TIGAR:  I'm hearing about this intention for the
       15    first time, your Honor, and I'm surprised by it.
       16             MR. MORVILLO:  Your Honor, to the extent that there
       17    are 106 objections, we are not planning on reading them today.
       18    We can read them tomorrow after the objections can be heard.
       19             THE COURT:  They are not objections.  They are
       20    requests to include other material.
       21             MR. TIGAR:  Yes, your Honor.  Now I am out of the
       22    loop.  Why is it necessary for Mr. Fitzgerald to say anything
       23    about these transcripts?  They speak for themselves.
       24             MR. MORVILLO:  Mr. Fitzgerald is simply the witness
       25    through whom they will be introduced into evidence.
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        1             MR. TIGAR:  If they are transcripts from the trial
        2    that are otherwise admissible, we stipulate to that foundation,
        3    your Honor.  We agree to it.  We won't raise any objection like
        4    that.
        5             THE COURT:  Okay.
        6             MR. TIGAR:  We may have relevance objections, but the
        7    foundation we don't care about.
        8             MR. MORVILLO:  I'm talking about the exhibits that
        9    were introduced into evidence in the underlying trial.  In
       10    other words, transcripts of tape recordings of speeches by
       11    Sheikh Abdul Rahman and of telephone calls by Sheikh Abdul
       12    Rahman that were introduced in evidence at the underlying
       13    trial.
       14             MR. TIGAR:  May I have a moment, your Honor?
       15             Your Honor, we will not make a foundational objection
       16    of any sort to exhibits that were offered and received in
       17    evidence in Sheikh Abdul Rahman's trial.  We will make
       18    relevancy and all the rest of them, which we will raise at the
       19    appropriate procedural hour.  I hope that's a way to cut
       20    through all this and save time.
       21             MR. MORVILLO:  Your Honor, the government would like
       22    to show these documents to Mr. Fitzgerald and have them
       23    authenticated properly.  They are very relevant to this case
       24    and to demonstrate the knowledge, in particular, of defendant
       25    Stewart.  And so we think it is appropriate for them to come in
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                                      (212) 805-0300
        1    through Mr. Fitzgerald and we plan to do it that way.  It will
        2    not take more than three or four minutes of testimony.
        3             MR. TIGAR:  The documents take nothing, your Honor,
        4    from the fact that Mr. Fitzgerald knows about them, nothing
        5    and, therefore, we object.  Exhibits speak for themselves,
        6    relevantly or not.
        7             MR. RUHNKE:  Your Honor, can I add one more thought to
        8    that process.  If the documents are identified in front of the
        9    jury and later on relevance, 403, and other objections are in
       10    fact sustained by the Court, the existence of certain documents
       11    that don't come into evidence will be in front of the jury.
       12    There is no need to go through that process if people are
       13    willing to stipulate to the foundation.
       14             THE COURT:  I agree with that.  If there are going to
       15    be objections with respect to relevance and 403, then I can't
       16    admit the documents without listening to argument with respect
       17    to that.  There is agreement by all of the defendants, from
       18    what I've heard, that exhibits received in evidence in the
       19    course of Sheikh Rahman's trial are admissible in evidence
       20    without any further authenticity, foundation objections, that
       21    the only issue that will be raised by the defendants is
       22    relevance and 403.  So all exhibits from the Sheikh Rahman
       23    trial and 106.
       24             So I can consider all of those exhibits without taking
       25    the witness's time and consider all of the relevance and 403
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        1    objections.  I realize that what you want to do is -- and I'm
        2    doing this in front of the witness because there is nothing
        3    that I have said that affects the witness's testimony.  I
        4    realize that what you want to do is to say that in the course
        5    of the trial there was evidence, was there not, of speeches by
        6    Sheikh Abdel Rahman or other individual items of evidence as a
        7    prelude to the introduction of that evidence in order to be
        8    able to make the arguments about what effect that had on the
        9    defendants.
       10             You can ask those questions and we can, as you had
       11    wanted to do, leave to tomorrow or next week the specific
       12    pieces of evidence after I have listened to the arguments with
       13    respect to relevance and 403 and 106 so that you can ask the
       14    necessary foundation questions of the witness so that it is
       15    clear to the jury where this evidence is coming from and where
       16    it fits into this case without actually admitting now all of
       17    the speeches.  You said it would take four or five minutes.  I
       18    have reduced it to about two minutes, but it is to the same
       19    effect.
       20             MR. MORVILLO:  Can I present them to the witness for
       21    identification purposes?
       22             THE COURT:  You can have the witness identify
       23    exhibits, but that doesn't make them in evidence.
       24             MR. MORVILLO:  I understand that.  And my
       25    understanding is there will be argument on 403 and 106 grounds
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        1    down the road on these exhibits, but to put them in context so
        2    that when we talk about them tomorrow and then once they are
        3    ultimately read to the jury, the jury will know precisely which
        4    documents Mr. Fitzgerald was talking about when he testified.
        5             THE COURT:  Mr. Ruhnke.
        6             MR. RUHNKE:  The argument has now come full circle.
        7    The government has come back to where it was in the first
        8    place.  It says it wants Mr. Fitzgerald to sponsor certain
        9    exhibits, identify what they are.  They weren't going to be
       10    read now anyway.  And the danger still remains that the jury
       11    will be presented with a pile of documents that your Honor may
       12    rule they are not entitled to see or any speculation on their
       13    part, what was it that this witness identified that we never
       14    did get to see.
       15             Mr. Morvillo is just right back to where he started.
       16    If the foundation is there and the only objections are 106 and
       17    Article IV objections, there is no reason to have
       18    Mr. Fitzgerald handle the exhibits, look at them, identify them
       19    if later on they may not come into evidence at all.  I think
       20    the positions of the parties are exactly the same as they were.
       21    And I thought your Honor had -- I think the positions of the
       22    parties are as they were.
       23             MR. MORVILLO:  So I have the contours of the
       24    stipulation that's being proposed by the defendants, are the
       25    defendants agreeing to stipulate that these documents and these
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        1    tapes are in fact Abdel Rahman trial exhibits?
        2             THE COURT:  They have gone further than that.  They
        3    really have gone further than that.  Exhibits introduced in
        4    evidence at the trial of Abdel Rahman are admissible in
        5    evidence in this case.  There are no authenticity or foundation
        6    objections.  The exhibits are what they purport to be.  If they
        7    are alleged tapes of speeches by Abdel Rahman admitted at the
        8    trial of Abdel Rahman, they are admissible over -- no
        9    authenticity, foundation objections.  The only objections
       10    reserved are relevance, 403, and 106 completeness.  And with
       11    that as the stipulation they can be either read to the jury in
       12    accordance with the stipulation of the parties or, if the
       13    parties want the Court -- I believe it is a stipulation,
       14    actually, rather than judicial notice.
       15             MS. BAKER:  Your Honor, that's what we are trying to
       16    figure out.  Are the defendants agreeing that at the later time
       17    when the exhibits get presented to the jury if all other
       18    objections are resolved, that the jury can be told, these were
       19    exhibits at the Abdel Rahman trial?
       20             MR. TIGAR:  Yes, your Honor.  And that goes for the
       21    transcript, too.
       22             THE COURT:  I believe that that's clear.  So they can
       23    be authenticated both as what they purport to be and as
       24    exhibits received at the trial of Abdel Rahman, right?
       25             MR. TIGAR:  Yes, your Honor.
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        1             THE COURT:  And all defendants agree?
        2             MR. RUHNKE:  Yes.
        3             MR. MORVILLO:  Very well, your Honor.
        4             THE COURT:  Does the government agree also?
        5             MR. MORVILLO:  Yes, your Honor, we do.
        6             THE COURT:  So it would be a stipulation among all of
        7    the parties.
        8             Let's bring in the jury.
        9             (Jury present)
       10             THE COURT:  Ladies and gentlemen, as I mentioned
       11    before our break, we will turn in a moment to the part of the
       12    case in which the government is given the opportunity to
       13    present evidence, defense is given the opportunity to
       14    cross-examine.
       15             Before I do that, just a couple of preliminary
       16    matters.  We have left the pads and manila envelopes and pens
       17    on your chairs and we will leave additional pads for you in the
       18    jury room should those pads run out.
       19             Please remember my continuing instruction about taking
       20    notes.  You are under absolutely under no obligation to take
       21    notes.  If you do take notes, keep them to yourself.  Remember
       22    that some people remember better if they don't take notes.
       23    Some people remember if they do take notes.  Whether you decide
       24    to take notes is completely up to you, but don't let your note
       25    taking, if you do take notes, interfere with your observation
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        1    of the witness and your listening to all of the answers.
        2             We took a slightly longer break and you almost came in
        3    to the courtroom and I asked you to go back.  And the reason
        4    that that happens from time to time is, I try to deal with
        5    legal issues while you are outside the courtroom.  It is, I
        6    think, more convenient for you, more comfortable for you to be
        7    back in the jury room waiting rather than waiting for me to
        8    deal with legal questions.  We try to use your time in the
        9    courtroom as efficiently and productively for you as possible.
       10    That's why I try and deal with legal issues while you're not
       11    here in the courtroom.  So I appreciate your indulgence if at
       12    various times the breaks appear to be longer.  It is obviously
       13    no one's fault.  It is my way of dealing with legal issues.
       14             With that, the government may call its first witness.
       15             MR. MORVILLO:  Thank you, your Honor.  The government
       16    calls Patrick Fitzgerald.
       18         called as a witness by the Government,
       19         having been duly sworn, testified as follows:
       21    BY MR. MORVILLO:
       22    Q.  Good afternoon, Mr. Fitzgerald.
       23    A.  Good afternoon.
       24    Q.  How are you employed?
       25    A.  Currently, I'm the U.S. Attorney for the Northern District
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             46NMSAT4                 Fitzgerald - direct
        1    of Illinois, which is Chicago.
        2    Q.  Can you briefly describe for the jury what your job
        3    responsibilities for as a U.S. Attorney in Chicago?
        4    A.  I run the U.S. Attorney's Office as the law enforcement
        5    officer in charge of the Northern District of Illinois, which
        6    is Chicago and 17 other counties.
        7    Q.  And what are the responsibilities of the U.S. Attorney's
        8    Office?
        9    A.  Enforcing the law both criminally and civilly, both
       10    defending the government in civil actions when the government
       11    is sued civilly, or doing affirmative lawsuits on behalf of the
       12    government or private parties, but most of the work is criminal
       13    law enforcement where.  We are prosecutors and out of the 150
       14    attorneys in the office, about 130 do criminal law enforcement,
       15    everything from drugs to white collar, to corruption, to the
       16    whole gamut.
       17    Q.  And you're the head of the office?
       18    A.  Yes.
       19    Q.  How long have you been employed as the U.S. Attorney in
       20    Chicago?
       21    A.  Since September 2001.
       22    Q.  How were you employed prior to that time?
       23    A.  From September 1988 until August 2001, I was an Assistant
       24    U.S. Attorney here in the Southern District of New York.
       25    Q.  And did you hold any supervisory positions when you were an
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             46NMSAT4                 Fitzgerald - direct
        1    Assistant U.S. Attorney in the Southern District of New York?
        2    A.  I was a line assistant for a number of years.  I was chief
        3    of narcotics for maybe six months, and then from late '95 to
        4    early '96, I served as a cochief for the organized crime and
        5    terrorism unit in the Southern District of New York, until I
        6    left in August 2001.
        7    Q.  Are you familiar with an individual named Sheikh Abdul
        8    Rahman?
        9    A.  Yes.
       10    Q.  How are you familiar with him?
       11    A.  I had heard of him, but I began working on a case involving
       12    his prosecution some time in the spring of 1994.  And then I
       13    was one of three prosecutors at the trial of Sheikh Omar Abdel
       14    Rahman from January 1995 through October 1, 1995.  So I spent
       15    roughly nine months in the courtroom with him.
       16    Q.  What was Sheikh Abdul Rahman charged with?
       17    A.  He was charged with seditious conspiracy, he was charged
       18    with soliciting crimes of violence, he was charged with
       19    conspiracy to bomb, and he was charged with conspiracy to
       20    murder.
       21    Q.  When did that trial begin?
       22    A.  January 1995.  I think it was January 11, but definitely
       23    the month of January 1995.
       24    Q.  How long did that trial last?
       25    A.  Nine months.  It ended on October 1, 1995.
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             46NMSAT4                 Fitzgerald - direct
        1    Q.  Was Abdel Rahman represented by counsel at trial?
        2    A.  Yes.
        3    Q.  Who was his counsel?
        4    A.  He had several counsel.  The lead attorney for Abdel Rahman
        5    was Lynne Stewart and also representing Mr. Abdel Rahman was
        6    Ramsey Clark, and a fellow by the name of Abdeen Jabarra.
        7    Q.  Other than the testimony of live witnesses during that
        8    trial, were there exhibits offered into evidence against Abdel
        9    Rahman during that trial?
       10    A.  Yes.  A large number of exhibits.  I don't know the number.
       11    Q.  Did those exhibits consist of statements and speeches by
       12    Abdel Rahman?
       13    A.  Yes.
       14    Q.  Did they consist of videotapes of speeches by Abdel Rahman?
       15    A.  They included videotapes and audiotapes.  I think there
       16    were more audiotapes than videotapes of the speeches, and then
       17    translations of what those audiotapes and videotapes said into
       18    English.
       19    Q.  And were there also intercepted telephone conversations
       20    introduced into evidence at that trial?
       21    A.  Yes.  There was a wiretap on the home telephone of Sheikh
       22    Abdul Rahman that was admitted at the trial, and there were
       23    wiretaps of other people.  I don't know if any of them had
       24    called his phone, but with regard to Sheikh Omar Abdel Rahman
       25    there was a wiretap on his telephone in New Jersey and the
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             46NMSAT4                 Fitzgerald - direct
        1    transcripts of those calls, I think they were mostly
        2    translations because the conversations were in Arabic, were
        3    admitted.
        4    Q.  How were those transcripts and translations presented to
        5    the jury during that trial?
        6    A.  Anything that was in Arabic I don't think we played too
        7    many of the Arabic exhibits unless there was a videotape.  When
        8    it was an Arabic conversation, an agent or a person who knew
        9    about the wiretap would explain that here is a reel of
       10    conversations that were recorded.  There was a particular
       11    conversation on this date at this time.  We made a copy of it
       12    from the reel onto a cassette and then a Arabic translator
       13    would then testify that they took this cassette, they would
       14    initial it, they listened to the tape, they prepared a
       15    transcript of it -- not a transcript -- a translation of it so
       16    whatever was in Arabic was translated into English, and they
       17    would then verify the transcript by listening to the tape of
       18    the conversation next to the transcript, and testify that it
       19    was fair and accurate.
       20             They would also, either by the witness saying they
       21    were familiar with the particular voices, would identify who
       22    was speaking either because they knew the voice or sometimes
       23    there might have been a stipulation as to was speaking, and
       24    oftentimes in telephone conversations people would say hello,
       25    this is so and so and they would self-identify.  That's how
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             46NMSAT4                 Fitzgerald - direct
        1    they prepared for the telephone calls.
        2    Q.  How were they presented to the jury once the transcripts
        3    were in evidence and the translations were in evidence?
        4    A.  My recollection was the rule that we had was to read the
        5    entire transcript to the jury so that whatever was in the
        6    transcript we would read it completely.  And if there were
        7    different parts to it we would have different people read.  The
        8    first person speaking would be read by one person, somebody
        9    else would read it.  If it was an audiotape or a videotape, if
       10    there was a transcript, the standing rule I recall was we
       11    wouldn't pick out a sentence in the transcript.  We would read
       12    the whole thing while the evidence was presented to the jury.
       13    Q.  And where were these materials obtained from, the
       14    underlying materials?
       15    A.  Well, besides the wiretap, which was a recording on the
       16    phone, there were searches at various places.  There was a
       17    search of somebody's residence in New Jersey.  There were --
       18    some person gave us some tapes.  Some people made tapes.  They
       19    came from a variety of different places.  There was a search
       20    overseas that obtained tapes.  From a variety of searches, and
       21    some witnesses may have given us tapes.  And one witness made
       22    tapes by recording -- secretly recording some conversations.
       23    Q.  You testified that the trial lasted approximately nine
       24    months?
       25    A.  Yes.
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             46NMSAT4                 Fitzgerald - direct
        1             MR. MORVILLO:  May I approach, your Honor?
        2             THE COURT:  Yes.
        3    Q.  Mr. Fitzgerald, I'm handing you what's been marked for
        4    identification as Government Exhibit 2050B and 2300A through D.
        5    I would ask you to take a look through these and let me know if
        6    you recognize them?
        7    A.  Looking at what's marked as Government Exhibit 2050B, it is
        8    a photograph of Sheikh Omar Abdel Rahman, I think, sitting on
        9    his couch in New Jersey.  I recognize the person, not the
       10    couch.
       11             Government Exhibit 2300A through D are pictures and I
       12    recognize in the pictures the same person, Sheikh Omar Abdel
       13    Rahman, in an outdoor environment and in each one of them he is
       14    wearing a hat colored white and red.
       15             In 2300A, he is wearing a white garment; 2300B, he is
       16    wearing a white garment; 2300C, he is wearing a darker garment,
       17    could be brown; and 2300D, he is wearing definitely a dark
       18    brown garment.
       19             MR. MORVILLO:  Your Honor, the government offers into
       20    evidence Government Exhibit 2050B and 2300A through D.
       21             MR. TIGAR:  May I take the witness on the voir dire?
       22             THE COURT:  Yes.
       24    BY MR. TIGAR:
       25    Q.  Taking a look at 2300C, Mr. Fitzgerald, would you do that
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             46NMSAT4                 Fitzgerald - direct
        1    for me, please?
        2    A.  Sure.
        3    Q.  When was that taken?
        4    A.  I didn't take the photograph, but I can give you an idea.
        5    Q.  Do you have any personal knowledge, sir, of where it was
        6    taken?
        7    A.  Personal knowledge, no.
        8    Q.  2300D, same question.  Do you have any personal knowledge
        9    of where it was taken?
       10    A.  No.  I was not there when it was taken.
       11    Q.  2300A, same question.
       12    A.  Yes.  Everything in the 2300 letter series.
       13    Q.  When did you first see the photographs?
       14    A.  Last evening.
       15    Q.  So these photographs didn't have anything to do with your
       16    prosecution of Sheikh Abdul Rahman, did they?
       17    A.  No.  We didn't use these photographs in the photographs of
       18    Sheikh Omar Abdel Rahman.
       19    Q.  Without telling me what, if anything, someone told you, did
       20    someone tell you where they had been taken?
       21    A.  No.  I could figure it out by looking at it.
       22    Q.  Could you figure out by looking at them when they were
       23    taken?
       24    A.  Yes.  I can rule out when they weren't -- I can rule out a
       25    decade in which they were not taken.
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             46NMSAT4                 Fitzgerald - direct
        1    Q.  Were they taken in the 1980s?
        2    A.  I believe so.
        3             MR. TIGAR:  May I have a moment, your Honor?
        4             THE COURT:  Yes.
        5    Q.  Is it your understanding they were taken in Afghanistan?
        6    A.  That's my belief.  I wasn't there, but it looks to me like
        7    it is in Afghanistan.  The reason why I ruled out the 1990s, I
        8    don't believe that Sheikh Omar Abdel Rahman went to Afghanistan
        9    in the 1990s, but I wasn't there when the photograph was taken.
       10    Q.  Your understanding, sir, is these pictures were taken when
       11    Sheikh Abdul Rahman visited Afghanistan in the 1980s, correct?
       12    A.  That would be my belief from just looking at the
       13    photographs and knowing where he was at different times.
       14    Q.  At that time were you -- is it your understanding that he
       15    went to Afghanistan with the permission of the United States of
       16    America?
       17             MR. MORVILLO:  Objection, your Honor.  This is far
       18    beyond the scope of voir dire.
       19             THE COURT:  Sustained.
       20             MR. TIGAR:  I object on the grounds of relevance.
       21             THE COURT:  Overruled.  Let me see the photos.
       22             MR. TIGAR:  And 403, your Honor.
       23             THE COURT:  I'll reserve on 2300A through D.
       24             2050B received in evidence.
       25             (Government's Exhibit 2050B received in evidence)
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             46NMSAT4                 Fitzgerald - direct
        1             MR. TIGAR:  I'm sorry, your Honor.  Could you repeat
        2    the number, please?
        3             THE COURT:  2050B received in evidence.
        4             MR. MORVILLO:  Your Honor, may I publish 2050B to the
        5    jury?
        6             THE COURT:  Yes.
        7    BY MR. MORVILLO:
        8    Q.  Mr. Fitzgerald, you testified that the trial of Sheikh Omar
        9    Abdel Rahman ended on October 1, 1995, is that correct?
       10    A.  Yes.
       11    Q.  What was the result of that trial?
       12    A.  The defendant, Omar Abdel Rahman, was convicted of those
       13    charges I described, seditious conspiracy, soliciting crimes of
       14    violence, conspiracy to murder, conspiracy to bomb.
       15             MR. MORVILLO:  Your Honor, at this time the government
       16    would request that the Court take judicial notice of the
       17    conviction of Sheikh Omar Abdel Rahman.
       18             THE COURT:  Yes.
       19             Ladies and gentlemen, I have taken judicial notice of
       20    certain facts which I believe are not subject to reasonable
       21    dispute:  Specifically that:
       22             1.  Sheikh Omar Abdel Rahman was convicted on January
       23    17, 1996 of seditious conspiracy, solicitation of crimes of
       24    violence, conspiracy to murder, and bombing conspiracy, and was
       25    sentenced by Judge Michael B. Mukasey of this court to a term
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             46NMSAT4                 Fitzgerald - direct
        1    of life imprisonment.
        2             2.  His conviction was affirmed by the United States
        3    Court of Appeals for the Second Circuit on August 16, 1999; and
        4             3.  The Supreme Court of the United States declined to
        5    review his case on November 1, 1999.
        6             I have accepted these facts to be true even though no
        7    evidence has been introduced proving them to be true.  The
        8    facts of which I have taken judicial notice do not bind you to
        9    conclude that Sheikh Abdel Rahman was in fact guilty of those
       10    offenses.  You may, but are not required, to agree that the
       11    facts of which I have taken judicial notice are true.
       12             The fact of conviction and the subsequent appellate
       13    review is not evidence of the guilt of Sheikh Abdel Rahman, and
       14    none of the defendants are bound by those determinations
       15    because none of the defendants was a party in that case.
       16             MR. MORVILLO:  May I have a moment, your Honor?
       17             THE COURT:  Sure.
       18    Q.  Mr. Fitzgerald, do you recall when Sheikh Abdul Rahman was
       19    sentenced?
       20    A.  Yes.  January 17, I believe, 1996.
       21             MR. MORVILLO:  Your Honor, I'm about to move on to
       22    another area.  If this would be an appropriate time for a lunch
       23    break, it would be an appropriate time for me to stop.
       24             THE COURT:  It is 1:00 and so we will break for lunch
       25    until 2:00, ladies and gentlemen.
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        1             Please remember my continuing instructions not to talk
        2    about the case, keep an open mind.
        3             All rise, please.
        4             (Jury not present)
        5             MR. TIGAR:  Your Honor, may I raise a housekeeping
        6    matter?
        7             THE COURT:  Sure.
        8             MR. TIGAR:  Can we ask counsel not to put their papers
        9    on the rail during their interrogation?
       10             MR. MORVILLO:  They are not my papers.  They were on
       11    the podium.
       12             MR. TIGAR:  I apologize, your Honor.
       13             THE COURT:  Fine.
       14             Please be back at ten of two.
       15             MS. BAKER:  Your Honor, I need to raise again the
       16    subject of the Abdel Rahman trial exhibits.  At your Honor's
       17    pleasure I can do that now --
       18             THE COURT:  Have a seat.
       19             (Continued on next page)
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        1             MS. BAKER:  The government is offering certain of the
        2    Abdel Rahman trial exhibits essentially for two different
        3    purposes.  One purpose is for their effect on those of the
        4    defendants who were present when they were received or read at
        5    the Abdel Rahman trial or who received copies of them at around
        6    that time.  But a different purpose is essentially for their
        7    truth or their real content as statements made by Abdel Rahman
        8    that accurately reflect his views.
        9             THE COURT:  Yes, I understand that.
       10             MS. BAKER:  And so it had been the government's
       11    thinking that in order for the evidence to be accepted by the
       12    court for those two different purposes and not for the court to
       13    end up with the evidence given to the jury only with a limiting
       14    instruction, that it's only for it's effect on the defendants,
       15    that on the one hand or at the one point in time --
       16             THE COURT:  Can I just stop you for a moment?
       17             MS. BAKER:  Sure.
       18             THE COURT::  I really do appreciate both of those
       19    issues and the defendants stipulated to the authenticity and
       20    foundation for the admissibility of all of the exhibits from
       21    the Sheikh Abdel Rahman trial and, as I said and confirmed with
       22    the defendants, their admissibility both for authenticity that
       23    they are what they purport to be, so speeches of Abdel Rahman
       24    or speeches of Abdel Rahman, tapes of conversations with Abdel
       25    Rahman or tapes of conversation, they are authentic.  All of
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        1    the necessary foundation has been laid that they are what they
        2    purport to be as received at the trial, first; and, second,
        3    that they were received at the trial and, thus, can be argued
        4    for whatever purpose in terms of their effect on any of the
        5    trial participants.  And so I do understand both of those
        6    purposes and we went over both of those with the defendants.
        7             Now, when we started it, Mr. Morvillo said but all we
        8    want to do is to admit them.  We don't want to play them.  We
        9    don't want to show them to the jury at this point.  So they
       10    won't have been shown or played to the jury while Mr.
       11    Fitzgerald was on the stand in any event and in terms of timing
       12    their timing is delayed only so long as the parties can argue
       13    to me the issues of relevance, 403, and completeness, and they
       14    would go in with a stipulation that all parties agree that
       15    these are what they purport -- that they are both what they
       16    purport to be and that they were exhibits at the trial of
       17    Sheikh Omar Abdel Rahman.
       18             It seems to me that that was as complete, unless I am
       19    missing something, a resolution of the evidentiary issues that
       20    were presented to me by the parties with respect to those
       21    exhibits at the trial of Sheikh Omar Abdel Rahman.
       22             MS. BAKER:  Your Honor, it leaves the government with
       23    two questions.  First of all, obviously we will communicate
       24    further with defense counsel to try to agree upon language that
       25    should be presented to the jury, for example, to establish that
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        1    certain of the tapes were found in the home of one of the
        2    sheikh's associates in, I believe, New Jersey.  Obviously we
        3    will have to work out what descriptions of the material would
        4    be given to the jury at the time they are presented with any
        5    exhibits that are ultimately admitted.
        6             But the two remaining questions that the government
        7    has are:  First, it was the government's intention to begin
        8    offering and making use of some of these exhibits over the next
        9    couple of days of the trial and so we would request some
       10    further guidance from the court as to the timing of when these
       11    issues should be addressed further and, second, --
       12             THE COURT:  Do it tonight.  Start playing them
       13    tomorrow or offering them tomorrow if you want.  I don't know
       14    how long all of this will take.  I don't know how much volume
       15    there is.  The government said that they might have to play
       16    considerably more of the trial of Sheikh Omar Abdel Rahman than
       17    they originally intended.  I got that from the papers.  And it
       18    seems that the defendants want to play even more, but you can
       19    certainly start and there must be, you know, discrete portions.
       20             It's sort of hard to have a cumulative objection or
       21    403 objection based on cumulativeness for the first couple of
       22    speeches of Sheikh Omar Abdel Rahman so it should be fairly
       23    easy to either work out that stipulation or present the issue
       24    to me and begin to start.  I certainly don't want to see the
       25    trial delayed in any way and it seems to me that the
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        1    stipulation that the parties agreed to will expedite rather
        2    than slow things down.
        3             MS. BAKER:  The other question that the government was
        4    left with was it was our intention to call a translator witness
        5    who had reviewed the tapes themselves and is prepared to
        6    testify that this translator has ensured that there is an
        7    accurate translation of the tapes.
        8             THE COURT:  It seems to me that the defendants do not
        9    require that.
       10             MS. BAKER:  Well, your Honor, with respect, at Abdel
       11    Rahman's trial the defendants raised issues as to certain of
       12    the translations and that may be part of what Mr. Tigar is
       13    alluding to when he makes references to Rule 106 issues.  He
       14    may feel that if we are offering the transcript that was used
       15    at the trial and he had some issue about translation, that he
       16    is going to want to bring in whatever other material -- and
       17    that is fine -- as to how that speech came in at the time for
       18    its effect on the defendants at the time.
       19             But, again, going back to the other purpose, which is
       20    that these are Abdel Rahman's actual words that actually
       21    accurately reflected his views, that is why we want to have an
       22    additional translator to say I have reviewed the tape myself
       23    and here is my transcript of what I am testifying is an
       24    accurate translation.
       25             Moreover, Mr. Barkow previously had conversations with
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        1    Mr. Tigar about this issue and at least in those conversations
        2    Mr. Tigar had indicated that he would not stipulate to the
        3    accuracy of the translations from the Abdel Rahman trial, just
        4    merely that they were translations that were received at that
        5    trial.
        6             MR. TIGAR:  I have read Ms. Khouri's curriculum vitae,
        7    your Honor, the translator, and I am satisfied that any effort
        8    that I would make to attack her qualifications on Daubert
        9    grounds, setting the bar as high as you could, would result in
       10    your Honor saying that she is qualified and that it would go to
       11    weight, not admissibility.  And that is why with respect to the
       12    matters about which we are now speaking -- and I am not talking
       13    about all the Arabic language materials from the Sattar
       14    surveillance and all the rest of it, but just the Abdel Rahman
       15    trial -- I am comfortable with your Honor's characterization of
       16    what we have agreed to because, as I say, since I have spoken
       17    to Mr. Barkow he did furnish me with that curriculum vitae and,
       18    you know, I am not out to waste a bunch of time, your Honor,
       19    with making foundation objections that aren't going anywhere.
       20             MS. BAKER:  We have heard Mr. Tigar's revised position
       21    and we will make an effort to act accordingly.  I do want to
       22    let the court know that based on the pretrial conversations
       23    when the government was planning the early stages of its case
       24    and arranging for witnesses, we obviously had anticipated
       25    calling this translator for this purpose, an agent who had
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        1    seized some of the tapes in searches, and so we are now going
        2    to have to do some rescheduling and we ask the court's
        3    patience.
        4             THE COURT:  Okay.  That is okay.  But we seem to have
        5    cut down what would otherwise be some of the witnesses'
        6    foundation problems issues, et cetera, and we can move on to
        7    playing any tapes, transcripts, and the like, without another
        8    translator.  And in terms of reshuffling and rescheduling,
        9    there is plainly an available body of material to begin to move
       10    through more expeditiously.  And I appreciate the parties'
       11    efforts not to raise issues that they think ultimately would
       12    not be reasonably successful.
       13             Okay, anything else?
       14             See you after lunch.
       15             (Luncheon recess)
       16             (Continued on next page)
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             46NSSAM5                 Fitzgerald - direct
        1             AFTERNOON SESSION
        2             2 p.m.
        3             THE COURT:  Good afternoon all.  Please be seated.
        4             Let's bring in the jury.
        5             (In open court; jury present)
        6             PATRICK FITZGERALD    resumed.
        7             THE COURT:  All right, please be seated all.
        8             Good afternoon, ladies and gentlemen.  Mr. Fitzgerald
        9    is on the stand.
       10             Mr. Fletcher.
       11             THE CLERK:  Mr. Fitzgerald, you are reminded you are
       12    still under oath.
       13             THE WITNESS:  Yes, sir.
       14             THE COURT:  Mr. Morvillo.
       15             MR. MORVILLO:  Thank you, your Honor.
       16    DIRECT EXAMINATION (Continued)
       17    BY MR. MORVILLO:
       18    Q.  Mr. Fitzgerald, good afternoon.
       19    A.  Good afternoon.
       20    Q.  Are you familiar with the term special administrative
       21    measures?
       22    A.  Yes.
       23    Q.  In general terms what are they?
       24    A.  They are special conditions that are imposed by the Bureau
       25    of Prisons at the direction of the Attorney General that put
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             46NSSAM5                 Fitzgerald - direct
        1    special conditions on certain inmates to make sure that they
        2    protect against the risk of violence that might be caused by
        3    the inmates.  And they got the name from the regulation that
        4    was enacted and became effective in I think May '96, called
        5    Special Administrative Measures.
        6    Q.  Are they also sometimes referred to as SAMs?
        7    A.  Yes, SAMS, special administrative measures.
        8    Q.  Do you know whether SAMs were ever imposed on Sheikh Omar
        9    Abdel Rahman?
       10    A.  Yes, they definitely were.
       11    Q.  When was that proposal made?
       12    A.  I made the proposal they be imposed on Omar Abdel Rahman I
       13    believe in January '97, and then they were actually imposed I
       14    believe in April '97.
       15    Q.  Incidentally, Mr. Fitzgerald, are you familiar with an
       16    individual named Ahmed Abdel Sattar?
       17    A.  Yes.
       18    Q.  Are you aware whether Mr. Sattar ever sought to have access
       19    to Sheikh Abdel Rahman in prison following his conviction?
       20    A.  Following the conviction of Abdel Rahman Mr. --
       21    Q.  That is right.
       22    A.  Mr. Abdel Sattar sought to visit Abdel Rahman I believe in
       23    Missouri at the prison in Springfield, which is where Omar
       24    Abdel Rahman was.  I recall it happened that he wanted to go
       25    out to see him over a weekend and I recall I talked to the
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             46NSSAM5                 Fitzgerald - direct
        1    warden, Warden Keoheane, and told him that I didn't want that
        2    to happen and explained that the special administrative
        3    measures were being applied for by me but hadn't been decided
        4    yet so I tried to urge him not to let the visit happen, and
        5    that was I think in January '97 and it was going to happen on a
        6    weekend.
        7    Q.  Did the reasons why you didn't want Mr. Sattar to visit
        8    Sheikh Abdel Rahman in prison include the fact that you were
        9    concerned that he had issued statements from Abdel Rahman from
       10    prison before?
       11    A.  Yes, definitely, and I expressed that to the warden orally
       12    and then I followed it up in writing.
       13    Q.  You testified that you proposed the SAMs in January of '97.
       14             How involved with the decision to implement the SAMs
       15    were you?
       16    A.  I was pretty involved.  I think just to be clear the
       17    decision whether to impose the SAMs was made by the Attorney
       18    General of the United States, who was then Janet Reno.  As I
       19    understand the regulations, if she decided that SAMs should be
       20    imposed she would issue an order to the director of the Bureau
       21    of Prisons, the person who heads the Bureau of Prisons.  The
       22    Bureau of Prisons is part of the Department of Justice so the
       23    boss of the prison system answers to the Attorney General.
       24             Having said that, it was her decision.  I was the one
       25    who pushed for it.  I wrote a memorandum.  The SAMs were very
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             46NSSAM5                 Fitzgerald - direct
        1    new.  The regulation had come out the year before so I wrote up
        2    what my concerns were, the reasons for the concerns, why I
        3    thought these SAMs should be imposed, what the risks were, what
        4    the proposed conditions were.  It was sort of a new thing and
        5    so I laid out what my concerns were and then I sent it through
        6    channels from here in the Southern District of New York down to
        7    Washington to an office in the Department of Justice that deals
        8    with prison issues called the Office of Enforcement Operations.
        9    They looked at it.  They made changes, suggestions, and it went
       10    up the process so a decision was finally made.
       11             So I clearly played a big role in that.  The ultimate
       12    decision was made by the Attorney General.  That is the best
       13    way I can describe it.
       14    Q.  In general terms, why did you believe that it was necessary
       15    to have special administrative measures imposed on Sheikh Abdel
       16    Rahman?
       17             MR. TIGAR:  Objection, your Honor, the SAMs speak for
       18    themselves.
       19             THE COURT:  Overruled.
       20    A.  I thought that Sheikh Abdel Rahman posed a very grave
       21    danger of causing violence outside if he could communicate
       22    messages outside.  I saw that he had been convicted of the very
       23    offense of soliciting others to commit crimes of violence.  He
       24    is blind.  He doesn't kill people himself.  My concern was he
       25    could cause others to carry out violence, particularly given
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             46NSSAM5                 Fitzgerald - direct
        1    his position and his stature in the group he was part of, and
        2    my concern was if he passed messages outside he could cause
        3    violence so we had to make sure whoever had contact with him
        4    was only for a proper purpose and no messages were passed
        5    outside either by phone, by visits, by mail.  That was the
        6    essential purpose of the SAMs.
        7    Q.  When you say the group that he was involved with, what do
        8    you mean by that?
        9    A.  It's called Islamic Group, or called Gama'a in Arabic,
       10    which is Arabic for group, and that was a group in Egypt that I
       11    understood he was the emir or leader of.  There was some
       12    dispute as to whether he could be a leader because he was a
       13    blind man so whatever his formal title was he was a leader of
       14    that group and he would issue pronouncements to the group that
       15    would indicate what the policy was and I understood if he gave
       16    directions people would follow.
       17             MR. TIGAR:  I object to this and may we have a
       18    limiting instruction?
       19             THE COURT:  Well, I will sustain it at that point.
       20             Ladies and gentlemen, the reason for the testimony,
       21    it's not being offered for the truth but, rather, for the
       22    reasons for the special administrative measures and so that you
       23    can assess, among other things, the significance or relevance
       24    of anything that was done in connection with the special
       25    administrative measures.  All right.
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             46NSSAM5                 Fitzgerald - direct
        1    Q.  Mr. Fitzgerald, you testified they were implemented in
        2    April '97?
        3    A.  Yes, I believe that there was an order issued but I
        4    remember I saw the documents last night, a letter telling
        5    people about it in April '97.
        6    Q.  Are you familiar with what happens once special
        7    administrative measures are formally implemented?
        8    A.  Yes.  The internal memo would suggest why we would do it.
        9    If the Attorney General decides it should be imposed she will
       10    send a memo to the Bureau of Prisons saying here is what you
       11    have to do, and you have to tell the inmates what the rules
       12    are.
       13             So a condensed version that wouldn't describe all of
       14    our reasons or particular facts would be sent to the inmate and
       15    then you would also communicate what these restrictions are to
       16    the attorney for the inmate.  My understanding was that the
       17    SAMs I think were even translated into Braille so that Sheikh
       18    Abdel Rahman could have them read -- could read them and that
       19    was made available to him and at the same time we sent a letter
       20    to the attorneys for the inmates for whom SAMs were imposed on.
       21    Q.  How long, once implemented, did SAMs remain in effect?
       22    A.  At that time --
       23    Q.  On Abdel Rahman?
       24    A.  At that time when the Attorney General authorized these
       25    measures they would last for 120 days, so 4 months, and then
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             46NSSAM5                 Fitzgerald - direct
        1    they could be renewed or not and that decision was made by the
        2    Attorney General.
        3             MR. TIGAR:  Your Honor, objection, narrative.  The
        4    documents are here and speak for themselves.
        5             THE COURT:  Overruled.
        6    Q.  Were there ever any modifications made to the special
        7    administrative measures over time?
        8    A.  Yes.  There were modifications made at different times and
        9    I believe at first whenever a modification was made you would
       10    have to wait until the 120-day renewal period would come up and
       11    then we would suggest modifications.  Sometimes the people
       12    would approve them and ultimately the Attorney General would
       13    make the change.  Sometimes they wouldn't adopt the change but
       14    we would always wait for the renewal period and later on there
       15    was a decision that it was built into the measures that if you
       16    were going to do something to lessen the conditions on the
       17    inmate consistent with practice and if everyone agreed you
       18    could do it without waiting for the 120 days.
       19             So if there was a particular condition that was
       20    becoming impractical and no one objected, you could remove that
       21    condition without waiting the full 4-month period and then just
       22    change it the next one.  And there were different changes over
       23    different times.
       24             THE COURT:  Let me just pause for a moment.
       25             Mr. Fletcher advised me that there was a hand --
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             46NSSAM5                 Fitzgerald - direct
        1             JUROR:  We are having a hard time hearing you when you
        2    are speaking sometimes.
        3             THE COURT:  It sometimes happen.  I will try and speak
        4    into the microphone.
        5             Thank you.
        6             MR. PAUL:  Also, if the witness can speak a little
        7    closer to the microphone.
        8             THE COURT:  Yes.
        9    A.  If anyone gestures with their ear I will try to do better.
       10             Thanks.
       11    Q.  Mr. Fitzgerald, you just testified that there were
       12    mechanisms when to modify the SAMs when the restrictions were
       13    being removed.
       14    A.  Right.
       15    Q.  That did not apply when more restrictions were being added?
       16    A.  Yes.  If more restrictions were being added the Attorney
       17    General had to approve that since she had the power to order
       18    them.  So in the tightening of the restrictions my
       19    understanding was we would have to wait for the renewal period
       20    or -- and I guess I don't think we ever did this -- we could go
       21    back to her and ask her to change it then.  But you would need
       22    her personal permission to make the restrictions tighter.
       23    Q.  When you say "her," you are referring to then Attorney
       24    General --
       25    A.  Then Attorney General Janet Reno, yes.
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             46NSSAM5                 Fitzgerald - direct
        1    Q.  After the SAMs were initially implemented in April of '97,
        2    you testified that there were mechanisms for their renewal.
        3             Were the SAMs on Sheikh Abdel Rahman renewed?
        4    A.  Yes.  Every time the 4-month period came up we would submit
        5    a memo suggesting renewal.  Sometimes we would just say the
        6    same conditions and reasons apply so please renew them.
        7    Sometimes we would add a fact if something new had happened,
        8    and I was involved in that process every 4 months but it became
        9    fairly routine.  Sometimes a paralegal helped me and at a
       10    certain point in time I became busy with other things and so
       11    somebody else stepped in and started handling the renewals.
       12    But as far as I know they were always renewed.
       13    Q.  You mentioned paralegal.  What is his name?
       14    A.  Gerard Francisco.
       15    Q.  Did the United States Attorney's Office for the Southern
       16    District of New York play any role in the administration of the
       17    special administrative measures for Sheikh Abdel Rahman?
       18    A.  Yes, in two respects.
       19             One, we would have the contact with the attorneys for
       20    an inmate.  That is just traditional.  So the Bureau of Prisons
       21    would go to Omar Abdel Rahman and give him the notice and do
       22    whatever it was that they did.  But we would have the contact
       23    with the attorneys to say here is the affirmation -- an
       24    affirmation is like an affidavit -- we want to you sign a sworn
       25    statement that says you understand what the rules are and you
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             46NSSAM5                 Fitzgerald - direct
        1    will follow them and we would mail it out to them along with
        2    the special administrative measures.
        3             In addition, if someone wanted to use a translator we
        4    would be the ones to clear it.  They couldn't use a translator,
        5    and I would have to check the regulations whether we had to
        6    approve a paralegal.  If they wanted to put someone, get
        7    permission to go into the facility a number of people had to
        8    sign off on that, including the U.S. Attorney's Office.
        9    Q.  Directing your attention to the spring of 2000, was Sheikh
       10    Abdel Rahman still subject to special administrative measures
       11    at that time?
       12    A.  Yes.
       13             MR. MORVILLO:  May I approach, your Honor?
       14             THE COURT:  Yes.
       15    Q.  Mr. Mr. Fitzgerald, I have handed you what has been marked
       16    for identification as Government Exhibit 6.  Actually I think I
       17    kept the original myself.
       18    A.  I have the original 6.
       19    Q.  All right.
       20    A.  This has the original sticker.
       21    Q.  Okay.
       22             Do you recognize that document?
       23    A.  Yes.
       24    Q.  What is it?
       25    A.  This is a document that has a FedEx shipping label on the
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        1    top that shows who it was sent to, who it was sent by, which
        2    was someone who used to work in the U.S. Attorney's Office, an
        3    attorney, to an attorney for Abdel Rahman, and then the first
        4    page of the exhibit is an April 5, 2000 letter, a transmittal
        5    letter addressed to three attorneys signed by Paul Butler.
        6             Paul Butler was assistant you U.S. Attorney in the
        7    Southern District of New York.  He was in my section and so I
        8    supervised him.  I was co-chief of the unit and he was one of
        9    the people I supervised.  He was also working directly with me
       10    on a different case at the time.  So I was working closely with
       11    him.
       12             One of the things I asked him to do, because we had
       13    special administrative measures in that case as well, was to
       14    help me with these things so he would work with Gerard
       15    Francisco, the paralegal, on getting these letters out, and
       16    then the next three pages after the transmittal letter were
       17    three different affirmations and they were -- the only
       18    difference I believe is the name of the attorney is different
       19    in each one.  So three different attorneys had a form to sign,
       20    and the form speaks for itself, but it summarizes that they
       21    understand the rules and they promise to obey them.  And then
       22    after the three different attorneys' affirmations was the
       23    notification of special administrative measures and that is the
       24    document that the Bureau of Prisons would share with the inmate
       25    to let the inmate know what the rules were and that is the
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        1    document that was also attached that the attorneys would say
        2    they read and would abide by, and this one is dated December
        3    10, '99.
        4             As we mentioned before, there were changes made over
        5    time.  So this is something that would have gone out under Paul
        6    Butler's signature and my supervision at that time and then I
        7    would have seen it later on when it came back signed.  I don't
        8    know if I personally read this transmittal letter before it
        9    went out.  That is not something I wouldn't remember this many
       10    years later.  But I do remember it came back signed.
       11             MR. MORVILLO:  Your Honor, the government offers
       12    Government Exhibit 6.
       13             MR. TIGAR:  No objection, your Honor.
       14             THE COURT:  All right.  Government Exhibit 6 received
       15    in evidence.
       16             (Government's Exhibit  6 received in evidence)
       17             MR. MORVILLO:  Your Honor, may I show on the monitors
       18    the contents of Government Exhibit 6 to the jury?
       19             THE COURT:  Yes.
       20             MR. MORVILLO:  Is it being displayed for the jury?
       21    Q.  Mr. Fitzgerald, the first page of this exhibit which is
       22    showing on your screen, this a copy of the FedEx air bill?
       23    A.  Yes.  And that shows it went from Paul Butler, who is the
       24    Assistant U.S. Attorney in New York, that is his address and
       25    his phone number, and it went to Abdeen Jabara, and I think I
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        1    misspelled his name before, one R, and that address looks
        2    familiar and that is his phone number, and Mr. Jabara and
        3    Mr. Ramsey Clark I think had the same address.
        4             So this is the FedEx air receipt showing that it was
        5    sent on April 6, 2000.
        6    Q.  Can we display the next page.
        7    A.  And that would be the April 5, 2000 transmittal letter sent
        8    to Mr. Jabara and Mr. Clark at one address and Ms. Stewart at
        9    another, and then it's self-explanatory that it says that these
       10    were extended for another 120 days.  Enclosed is a copy of your
       11    client's SAM and affirmation acknowledging receipt, and it's
       12    signed by Paul Butler.
       13    Q.  Can we turn to the next page.
       14             Is there any way to make it fit the screen?  It's a
       15    little bit illegible.
       16             What is this document that is on the screen now, Mr.
       17    Fitzgerald?
       18    A.  This is the attorney's affirmation I described before and
       19    there were three in this packet, one for Mr. Jabara, one for
       20    Mr. Clark, one for Ms. Stewart, and that is the document that
       21    they would sign as an affirmation, which means an attorney can
       22    make a sworn statement without going in front of a notary
       23    public to state they read the notification about the SAMs and
       24    would abide by that, and then it had a signature line on and a
       25    date.
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             46NSSAM5                 Fitzgerald - direct
        1    Q.  And if we can just scroll quickly through the next two
        2    attorney affirmations.
        3             Can we display the first page of the notification of
        4    special administrative measures dated December 10.
        5             Directing your attention, Mr. Fitzgerald, to the first
        6    line of this document, which indicates that it's pursuant to 28
        7    C.F.R. Section 501.3(c) --
        8    A.  Yes.
        9    Q.  What is that a reference to?
       10    A.  C.F.R. stands for Code of Federal Regulations, so
       11    regulations are published and they sort of announce to the
       12    world what procedures the government is following and so 28
       13    means Title 28.  If you look at the Code of Federal
       14    Regulations, it has different titles, and section 501.3(c) is
       15    the provision enacted and became effective in the spring of '96
       16    that says if the Attorney General makes certain findings the
       17    Attorney General can decide to impose these measures and here
       18    is what the Attorney General has to do.
       19             So that is what it meant by pursuant to that
       20    particular regulation.
       21    Q.  And the line just under that reads "inmate Sheikh Omar
       22    Abdel Rahman," and that is an indication that this is the
       23    special administrative measures for that inmate?
       24    A.  Yes, specific to him.
       25    Q.  Directing your attention to paragraph numbered 3 on this
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        1    page, could you read that for the record?
        2    A.  Sure, paragraph 3, "Inmate communications prohibitions -
        3    The inmate is limited, within BOP reasonable efforts and
        4    existing confinement conditions, from having contact with other
        5    inmates and others (except as noted in this document) that
        6    could reasonably foreseeably result in the inmate communicating
        7    information (sending or receiving) that could circumvent the
        8    SAM's intent or significantly limiting the inmate's ability to
        9    communicate (send or receive) terrorist information."
       10             A -- there is only an A, no B.
       11             A.  The inmate is prohibited from passing or receiving
       12    any written or recorded communications to or from any other
       13    inmate, visitor, attorney, or anyone else except as outlined
       14    and allowed by this document.
       15    Q.  Can we display the next page.
       16             Directing your attention to paragraph 4 --
       17    A.  Would you like to me to read it.
       18    Q.  Yes, please.
       19    A.  "Attorney's affirmation of receipt of the SAM restrictions
       20    document."
       21             I won't read the footnote defining attorney unless you
       22    want me to.
       23             The text says, "The inmates attorney -- individually
       24    by each if more than one -- must sign an affirmation
       25    acknowledging receipt of a SAM restrictions document.  The
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        1    federal government expects that the attorney, the attorney's
        2    staff, and anyone else at the behest of, or acting on the
        3    behalf of, the attorney, will fully abide by the SAM outlined
        4    in this document."
        5             That expectation is set forth in the SAM restrictions
        6    document.  And then there is A, B and C.
        7             Shall I read those?
        8    Q.  Yes, please.
        9    A.  "A" says, the USA/SDNY -- standing for the U.S. Attorney,
       10    Southern District of New York -- shall present or forward the
       11    "attorney affirmation of receipt of the SAM restrictions
       12    document" to the inmate's attorney.
       13             B.  After initiation of SAM and prior to the inmate's
       14    attorney being permitted to have attorney-client privileged
       15    contact with the inmate, the inmate's attorney shall execute
       16    the attorney affirmation of receipt of the SAM restrictions
       17    document and return the original to the USA/SDNY.
       18             1.  Little one, if the attorney refuses to sign the
       19    SAM acknowledgement document, then the attorney's refusal to
       20    sign must be noted on the document.
       21             2.  Once the SAM acknowledgement document has been
       22    signed by the attorney, the SAM will not preclude the attorney
       23    from communicating with his/her client as outlined herein, or
       24    as otherwise dictated by BOP, standing for Bureau of Prisons.
       25             C.  The USA/SDNY shall maintain the original of the
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        1    SAM acknowledgement document and forward a copy of the signed
        2    document to OEO in Washington, D.C.
        3             OEO is that group I mentioned before standing for
        4    Office of Enforcement Operations, and they are the ones that
        5    handle things at headquarters in that regard.
        6    Q.  Just so it's clear, Mr. Fitzgerald, the SAM acknowledgement
        7    document, is that the affirmation?
        8    A.  Yes, the three pages on top that we looked at earlier.
        9    Q.  Did the special administrative measures contain any
       10    prohibition or limitation on Abdel Rahman's ability to
       11    communicate with the media?
       12    A.  Absolutely.
       13    Q.  Do you know where in this document that is?
       14    A.  It might be the last paragraph but I know it was treated as
       15    a separate paragraph.  I would say this:  It was treated
       16    indirectly in that the inmate was not supposed to pass messages
       17    out of prison to anyone whether by visits, by phone calls or by
       18    mail.  So all of those would apply to the media just like they
       19    would everyone else, but there was also a separate paragraph,
       20    paragraph 9 on page 8.
       21    Q.  Can we display page 8, please.
       22             Can you read that into the record, Mr. Fitzgerald?
       23    A.  Sure.
       24             "Communications with news media.
       25             "The inmate will not be permitted to talk with, meet
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        1    with, correspond with, or otherwise communicate with any
        2    member, or representative, of the news media, in person, by
        3    telephone, by furnishing a recorded message, through the mails,
        4    through his attorneys, or otherwise."
        5             (Continued on next page)
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             46NMSAT6                 Fitzgerald - direct
        1    Q.  Incidentally, Mr. Fitzgerald, when you testified earlier
        2    about the Southern District of New York and the U.S. Attorney's
        3    Office needing to approve translators, was that to approve
        4    translators for its Bureau of Prisons, or for the inmates'
        5    attorneys to use?
        6    A.  The inmates' attorneys to use.  Obviously, the Bureau of
        7    Prisons would decide their own hiring decisions.  If the person
        8    wanted to participate in the phone call or gain access to the
        9    Bureau of Prisons, the information about who the person was and
       10    identifying information was supposed to be provided in advance,
       11    and I believe, independent of the Bureau of Prisons, the FBI
       12    and the U.S. Attorney's Office would have to approve them
       13    before that would be allowed to proceed.
       14             MR. MORVILLO:  May I approach again, your Honor?
       15             THE COURT:  Yes.
       16    Q.  Mr. Fitzgerald, I've handed you what has been marked for
       17    identification as Government Exhibit 7.  Can you please take a
       18    look at that and let me know if you recognize it?
       19    A.  Yes, I do.
       20    Q.  What is that document?
       21    A.  That is the attorney's affirmation signed by Lynne Stewart,
       22    dated May 16, 2000, which would correspond to the page that we
       23    saw earlier, the attorney's affirmation that was mailed out
       24    April 2000 and actually had a date typed down below, April
       25    2000, without the date filled in.  And, apparently, when
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             46NMSAT6                 Fitzgerald - direct
        1    Ms. Stewart signed it it was in May, so she crossed out April
        2    and wrote May 16, and then signed it Lynne Stewart and this
        3    appears to be a original signature because it is blue ink on a
        4    black document.
        5             And then behind it -- I should say, Government Exhibit
        6    7 is a two-page document.  Behind it is a transmittal letter
        7    from Lynne Stewart on Lynne Stewart's stationery dated May 26,
        8    2000, addressed to the same Paul Butler who sent out the blank
        9    form, signed by Lynne Stewart; but from the way the signature
       10    looks, it could be a stamp signature.  It just has one
       11    sentence.  It is a transmittal letter.
       12             MR. MORVILLO:  The government would offer Government
       13    Exhibit 7 at this time.
       14             MR. TIGAR:  No objection, your Honor.
       15             THE COURT:  Government Exhibit 7 received in evidence.
       16             (Government's Exhibit 7 received in evidence)
       17             MR. MORVILLO:  Your Honor, may I display it to the
       18    jury?
       19             THE COURT:  Yes.
       20             MR. MORVILLO:  Ms. Griffith may we blow up the first
       21    paragraph on the top, including -- thank you.
       22    Q.  Mr. Fitzgerald can you read this document into the record?
       23    A.  It says under attorney's affirmation, Lynne Stewart,
       24    pursuant to 28 U.S.C. Section 1746 --
       25    Q.  Let me just stop you there.  What's does 28 U.S.C. Section
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        1    1746 mean?
        2    A.  It is Title 28 of the United States Code, Section 1746,
        3    that says that an attorney doesn't have to go before a notary
        4    public to swear something.  An attorney can swear to a document
        5    as an attorney and it counts as if it was a sworn affidavit
        6    under oath before a notary public.  And so many times lawyers
        7    will file something with the Court and they will use that
        8    statute just so they can sign it without going down and finding
        9    one of those stamps and doing a notary thing.
       10             So it says:  Lynne Stewart, pursuant to 28 U.S.C.
       11    Section 1746, hereby affirms under the penalties of perjury the
       12    truth of the following:
       13             1.  I am counsel of record for inmate Omar Abdel
       14    Rahman -- then it refers to his U.S. Marshal's service number.
       15    I won't read it.  That's just the designation -- and have read
       16    the "notification of Special Administrative Measures" for
       17    inmate Omar Abdel Rahman, dated December 10, 2000 and
       18    consisting of eight pages there.
       19    Q.  December 10, 2000, is that the correct date for the
       20    notification of Special Administrative Measures?
       21    A.  No.  The ones that have been in Government Exhibit 6 that
       22    had been sent out were dated December 10, 1999.  Obviously,
       23    Mr. Butler sent it in April 2000.  Ms. Stewart mailed it back
       24    in May 2000.  December 2000 hasn't happened yet, so that's a
       25    typo.  It should be December 10, 1999.
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        1             Then continuing it says:  I understand the
        2    restrictions contained in that document and agree to abide by
        3    its terms, including the fact that I will not patch any calls
        4    by inmate Abdel Rahman through to third parties (or otherwise
        5    transfer such calls), nor will I allow third persons (other
        6    than cleared translators who will be present in my office with
        7    me or my cocounsel) to participate in the conversations.  I
        8    have also instructed the staff in my office that such staff are
        9    not to patch any calls by inmate Abdel Rahman through to third
       10    parties (or otherwise transfer such calls), nor will such staff
       11    allow third persons (other than cleared translators who will be
       12    present in my office with me or my cocounsel) to participate in
       13    the conversations.  I also agree that I will not record any
       14    conversations with inmate Abdel Rahman or allow any member of
       15    my office or staff to do so.
       16    Q.  Let me just stop you there for a second.
       17             MR. MORVILLO:  Can we display for the jury the second
       18    half of the document:
       19    A.  Paragraph 2:  I also understand that during any visits to
       20    inmate Abdel Rahman at any prison facilities, I shall again
       21    employ only cleared translators/interpreters and shall not
       22    leave such translator/interpreter alone with inmate Abdel
       23    Rahman.  Moreover, I shall only be accompanied by translators
       24    for the purpose of communicating with inmate Abdel Rahman
       25    concerning legal matters.
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        1             Paragraph 3:  I further understand that neither I nor
        2    any member of my office shall forward any mail received from
        3    inmate Abdel Rahman to a third person.  Nor shall I use my
        4    meetings, correspondence, or phone calls with Abdel Rahman to
        5    pass messages between third parties (including, but not limited
        6    to, the media) and Abdel Rahman.
        7             4:  I understand that the Bureau of Prisons is relying
        8    upon my sworn representations as a member of the bar in this
        9    affidavit in affording inmate Abdel Rahman the opportunity to
       10    meet and/or speak and/or correspond with me and my office and
       11    that any violation of these understandings could, among other
       12    things, result in further limitation (or even elimination) of
       13    inmate Abdel Rahman's ability to contact me or my office.
       14             Signed Lynne Stewart, and April is crossed out and
       15    handwritten May 16, 2000, New York, New York.
       16    Q.  Directing your attention, Mr. Fitzgerald, to June of 2000,
       17    did there come a time when you read press reports that Sheikh
       18    Abdel Rahman had issued a statement from jail?
       19    A.  Yes.
       20    Q.  What is your recollection as to what was recorded in the
       21    press about Sheikh Abdul Rahman's statement?
       22    A.  I recall --
       23             MR. TIGAR:  Objection, your Honor.  Whatever the press
       24    reports were, they speak for themselves.
       25             THE COURT:  Overruled on that basis.
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        1             Ladies and gentlemen, any reference to the press
        2    reports is not being introduced for the truth of anything that
        3    was reported in the press but rather for its -- I take it is
        4    not being offered for its truth?
        5             MR. MORVILLO:  That's correct, at this time, your
        6    Honor.
        7             THE COURT:  But rather for its effect on this witness
        8    and anything that this witness did.  This is a good time for me
        9    to just explain to you very briefly the concept of what's known
       10    as hearsay.
       11             The concept of hearsay is a principle of evidence.  It
       12    says that you are entitled to have witnesses come here and
       13    testify under oath and to receive evidence in court and to
       14    assess that evidence for its truth.  That's why you look at
       15    witnesses, assess their credibility.
       16             Sometimes witnesses are allowed to testify about
       17    something that was said or published outside of court.  Now,
       18    what was said or published outside of court, you can't assess
       19    the credibility of that.  You can't assess whether it was true
       20    or not true, whether the person who perceived it had the
       21    correct perception and whether the person was telling the
       22    truth.  And that's essentially why we have rules against that
       23    sort of thing, rules against what is called hearsay.
       24             On the other hand, sometimes what is said out of court
       25    is allowed to be admitted because it falls within an exception
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        1    to the hearsay rule and there are many exceptions to the
        2    hearsay rule.  And I rule on all rules of evidence, so you
        3    don't have to worry about that.
        4             Other times what's said outside of court may have
        5    significance, irrespective of whether it was true or not true.
        6    For example, if something is said and someone acts on the basis
        7    of that, irrespective of whether it was true or not true,
        8    someone heard something, it affected their state of mind,
        9    someone heard something, they did something.  And so sometimes
       10    when a matter is being offered not for the truth of what was
       11    said or published outside of court, it will still come into
       12    evidence, but I'll give you an instruction; namely, that you
       13    can't consider it for the truth of what was said, but rather
       14    simply for a fact that something was said or published so that
       15    you can assess what the effect was on a witness who is
       16    testifying, how it affects what the witness did, how it affects
       17    what was in the witness's mind, or for any one of a number of
       18    reasons.
       19             That's why when there was a question asked about
       20    whether this witness read something I said that the witness
       21    could testify about the fact that the witness read something,
       22    not for the truth of what was published, because you don't know
       23    whether something that was published in the press was true or
       24    not true, but rather simply for the fact that the witness read
       25    something and then did something as a result of that.  And
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        1    that's why I limited this testimony to the fact that the
        2    witness saw something and then did something.  What the witness
        3    saw or read you can't consider for the truth, but simply that
        4    the witness saw something and then did something.  So what the
        5    witness saw or read is not admitted for the truth of that, but
        6    simply for the fact that he saw something and then did
        7    something.
        8             You may proceed.
        9             MR. MORVILLO:  Thank you.
       10    A.  I recall reading a series of article in June 2000 that
       11    spanned really a handful of days, maybe a week, and that
       12    concerned the withdrawal of a support of a cease fire by Sheikh
       13    Omar Abdul Rahman.  I had known that a cease fire had been in
       14    effect between the Islamic Group since some time in 1997.  And
       15    then in June 2000, a published report appeared which stated
       16    that Sheikh Omar Abdul Rahman withdrew his support for the
       17    cease fire and the statement which appeared in the print said
       18    that the statement came through Sheikh Omar Abdul Rahman's
       19    attorney, Lynne Stewart, that she had read the statement by
       20    telephone from her office in New York to I believe it was
       21    Reuters, maybe even Reuters in London.
       22             It also stated, quoted her -- I don't know whether she
       23    said it or not -- it quoted her as saying that she had gotten
       24    the statement in the visit to the prison that had occurred some
       25    weeks before and that she held the statement for a couple of
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        1    weeks thinking how to release it.  In the end, she expected she
        2    might be barred from visiting the prison as a result of what
        3    she did.  In addition, there were other press reports
        4    indicating that a man by the name of Rifa'i Ahmad Taha Musa,
        5    who is an Islamic Group leader, said, well, I've seen this
        6    instruction from Omar Abdel Rahman, so the Islamic Group will
        7    be reconsidering its position on the cease fire.
        8             In addition, another press report quoted a fellow by
        9    the name of Muntasir Al Zayyat, who is an attorney in Egypt who
       10    often makes public statements on behalf of the Islamic Group,
       11    and he said that:  Wait a minute, we are not so clear that Omar
       12    Abdel Rahman said he was withdrawing his support for the cease
       13    fire and this needs to be clarified.  And I read another press
       14    report that indicated apparently that Omar Abdel Rahman had
       15    clarified that, yes, indeed he had issued a statement
       16    withdrawing his support for the cease fire, but he said in the
       17    end, I withdraw the support for the cease fire, but the
       18    decision is what people should do -- what the group should do
       19    is up to them.
       20             So that series of articles I think was over the course
       21    of a handful of days, maybe a week, indicating the release of
       22    the statement, response from one leader, questioned by Mr. Al
       23    Zayyat and a clarification.
       24    Q.  You testified that you believed that the cease fire was
       25    initiated some time in 1997?
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        1    A.  Yes.
        2    Q.  Are you aware of any press reports relating to Abdel
        3    Rahman's support of the cease fire at around that time?
        4    A.  Yes.  I believe a statement had been issued somehow within
        5    the jail --
        6             MR. TIGAR:  Excuse me, your Honor.  It's the same
        7    limiting instruction with respect to the earlier press reports,
        8    please?
        9             THE COURT:  Oh, yes.
       10             The press reports, ladies and gentlemen, are not
       11    received for the truth because you have no way of determining
       12    what the reporter writes in a newspaper is in fact accurate or
       13    not accurate.  And the press report is being admitted solely
       14    for the effect, if any, that it has on what this witness did.
       15    So, again, I instruct you that you cannot consider it for the
       16    truth of what appears in the newspapers.
       17    A.  I had read in the newspapers that Sheikh Omar Abdul Rahman
       18    from his jail had supported the cease fire prior to 2000, going
       19    back to 1997 some time.
       20    Q.  And now directing your attention back to June of 2000, were
       21    you concerned after reading these articles about the effect
       22    that Abdel Rahman's statement could have on the Islamic Group?
       23    A.  Absolutely.
       24    Q.  What were those concerns?
       25    A.  I was concerned that a person who was a leader of a group
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        1    and viewed as a religious figure, and who by his own account
        2    says I must condemn what is wrong and urge what is right, when
        3    he withdraws his support for the cease fire, which means he
        4    withdraws his support for the obligation of people not to be
        5    violent and kill people, that they may go forward, end the
        6    cease fire and the violence would start again.  That was
        7    absolutely my concern.
        8    Q.  What did you do upon learning about the press reports which
        9    indicated that Sheikh Abdul Rahman had withdrawn his support
       10    for the cease fire?
       11    A.  I had planned to do something until I was told to have a
       12    meeting.  My plan was for the very reason that I didn't know if
       13    the press reports were true or not, was to discuss whether or
       14    not I should subpoena the toll records of Ms. Stewart's law
       15    firm.  And by subpoena, it means a document from a grand jury
       16    that tells the phone company, can you get the phone bills.
       17             And I was going to get the phone bills to see if in
       18    fact she made a call to Reuters during the time frame when this
       19    press report says she called Reuters.  My recollection was that
       20    the press statement said that she called from New York to the
       21    Reuters office in London, which I think would be real easy to
       22    find the number for Reuters.  My plan then was, if it
       23    corroborated that there was a telephone call from New York to
       24    Reuters that we should consider whether or not if she read a
       25    statement that statement might exist.
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        1             My own belief -- I'm not saying right or wrong -- was
        2    that if this violated her obligations that this might be
        3    evidence of a crime.  I would need the Department of Justice
        4    approval before we ever did a search warrant on an attorney's
        5    office.  I may have needed -- I forget the rules on whether I
        6    need approval to get toll records.  So I started to talk people
        7    whether the appropriate thing to do was to verify if this thing
        8    was true, look at the phone bills, if there was a call to
        9    Reuters, what do we do with the next step.  I made known my
       10    intention and I was contacted and told, stand down, we needed
       11    to have a meeting --
       12             MR. TIGAR:  Object to what he was told.
       13             THE COURT:  Sustained.
       14    A.  I stopped.  Sorry.
       15    Q.  Did you subpoena Ms. Stewart's toll records?
       16    A.  I don't believe I did.
       17    Q.  Why not?
       18    A.  Because I was -- I had a meeting and I was told what else
       19    was going on.
       20             MR. TIGAR:  Excuse me, your Honor.  I object to what
       21    he was told.
       22             MR. MORVILLO:  Your Honor, we are offering not for the
       23    truth, but for the effect on Mr. Fitzgerald.
       24             THE COURT:  He has already told us he stopped, had a
       25    meeting, he was told something, and then he stopped.
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             46NMSAT6                 Fitzgerald - direct
        1             MR. MORVILLO:  Yes.  And I would like to ask
        2    Mr. Fitzgerald what he was told at that meeting in general
        3    terms, what he learned.
        4             THE COURT:  Relevance?
        5             MR. MORVILLO:  It affects the steps that he took after
        6    the meeting, instructs what he did --
        7             MR. TIGAR:  Excuse me, your Honor.  This is an area of
        8    great sensitivity, I believe, with respect to those.  If we are
        9    to be heard at length I would request to be heard out of the
       10    presence of the jury.
       11             THE COURT:  Can you move on to something else and we
       12    will come back to it when I take the break with the jury?
       13    Q.  Did there come a time when you sent a letter to Lynne
       14    Stewart?
       15    A.  Yes.
       16             MR. MORVILLO:  May I approach, your Honor?
       17             THE COURT:  Yes.
       18    Q.  Mr. Fitzgerald, I've handed you what's been marked for
       19    identification as Government Exhibit 9.  Do you recognize this
       20    document?
       21    A.  Yes.
       22    Q.  What certificate?
       23    A.  That's a letter I wrote and signed, dated August 3, 2000,
       24    from me directly to Lynne Stewart, and it also includes a
       25    revised attorney's affirmation and also includes the same
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        1    December 10, 1999 notification of Special Administrative
        2    Measures, and, in addition, it encloses copies of the news
        3    articles I was just describing indicating what the press
        4    reports were concerning the statements allegedly made to the
        5    media.
        6    Q.  Do you know if this letter was actually sent?
        7    A.  I believe it was.  It is signed by me.  There was an
        8    earlier draft that I think wasn't sent.  This one I think was.
        9             MR. MORVILLO:  Your Honor, the government offers
       10    Government Exhibit 9.
       11             MR. TIGAR:  No objection, your Honor, with the same
       12    understanding with respect to the newspaper articles, that they
       13    are not offered for the truth.  On that basis, we have no
       14    objection.
       15             THE COURT:  Government Exhibit 9 received in evidence.
       16             (Government's Exhibit 9 received in evidence)
       17             THE COURT:  And not for the truth of the newspaper
       18    articles, which are included.
       19             MR. MORVILLO:  Can I publish this letter to the jury,
       20    your Honor?
       21             THE COURT:  Yes.
       22             Ladies and gentlemen, this is a convenient time for me
       23    to tell you something else about trial procedures.  In the
       24    course of the trial I explain things from time to time.  The
       25    lawyer just used the word publish.  And you see various kinds
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        1    of technology around the courtroom.  Before any exhibit can be
        2    shown to the jury it must be received in evidence.  So when the
        3    parties begin to talk about documents, they are shown on
        4    various screens to the lawyers and to the witness and to me as
        5    the Court, but they are not yet shown to you until they are
        6    received in evidence.
        7             Once a document is received in evidence, it then can
        8    be shown to the jury and sometimes that's referred to as
        9    published to the jury, and a document can be published to the
       10    jury in any one of a number of ways.  It can be put on the
       11    screen, it can be put on any of these screens so that you can
       12    read it.  It can be physically handed to you or copies of it
       13    can be made and distributed to you.  Or it can be blown up on a
       14    big chart and shown to you that way.  All of those are ways of
       15    publishing or showing you a document that has been received in
       16    evidence.
       17             MR. MORVILLO:  May I continue, your Honor?
       18             THE COURT:  Yes.
       19    Q.  Could you read your letter to the jury, Mr. Fitzgerald.
       20    A.  Sure.  It is dated August 3, 2000.  It is addressed to Ms.
       21    Stewart.
       22             It says:  Dear Ms. Stewart, several recent press
       23    articles have been brought to my attention which appear to
       24    indicate that in or about June of this year you visited Omar
       25    Abdel Rahman at the Federal Medical Center in Rochester,
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        1    Minnesota, and thereafter released a statement (or statements)
        2    of inmate Abdel Rahman in violation of the Special
        3    Administrative Measures imposed upon him.
        4    Q.  Let me just stop you there, Mr. Fitzgerald.  You testified
        5    earlier that he had originally been designated to Springfield,
        6    Missouri?
        7    A.  Yes.
        8    Q.  Do you know when he was sent to Rochester, Minnesota?
        9    A.  I know he was, but I couldn't tell you the date.  Obviously
       10    before this date, but I don't know when.  Then it says:  I
       11    enclose copies of those articles as well as a copy of your
       12    affirmation indicating your agreement to abide by those
       13    conditions.  Suffice it to say that the government is extremely
       14    concerned that violations of the Special Administrative
       15    Measures by persons given access to inmate Abdel Rahman can
       16    lead to loss of life in the United States or abroad.  As you
       17    are aware, Abdel Rahman was convicted at trial of various
       18    terrorism offenses, including soliciting crimes of violence.
       19    As you are also no doubt aware, terrorist actions have been
       20    carried out in Abdel Rahman's name subsequent to his
       21    conviction, including the killing of approximately 60 tourists
       22    in Luxor, Egypt in November 1997 and the kidnapping of tourists
       23    in the Philippines in the spring of 2000 (copies of several
       24    press articles concerning these events are enclosed)
       25    Q.  Let me stop you there again, Mr. Fitzgerald.  Are copies of
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        1    those articles enclosed with this letter?
        2    A.  Yes.  Except, I think, I refer to two events, one involving
        3    Luxor and one involving the Philippines.  I think the articles
        4    attached here include descriptions of the news articles about
        5    the cease fire, and I think they include in this set reference
        6    to what happened in -- I'd have to look at the July -- I think
        7    the other letter which looked like a draft had those events
        8    attached to it, and so I can't sit here and tell you today
        9    which ones were attached to this letter.  There is a letter
       10    almost identical, dated July 28, that has my signature.  I saw
       11    last night that it has my original blue ink signature, so I
       12    don't know if we sent two letters.  My better guess is we
       13    corrected the letter and sent the second one with August 3,
       14    2000 and the attachments include all the discussion of the
       15    statements about the cease fire, but this set does not have the
       16    Philippines or Luxor articles.  I think they were attached to
       17    the other one.  So I am not sure.
       18             Continuing on after the parenthesis, it says:
       19    Moreover, the Islamic Group with which Abdel Rahman is
       20    affiliated has been designated a foreign terrorist organization
       21    of the United States.
       22    Q.  What do you mean, has been officially designated as a
       23    foreign terrorist organization?
       24    A.  I think it is the State Department, Secretary of State --
       25    not the Department of Justice -- can designate a group as a
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        1    foreign terrorist organization and the treasury can designate.
        2    And it means that you're not allowed to donate or assist that
        3    group if they are officially designated, and some time after
        4    the trial the government had designated the Islamic Group as a
        5    foreign terrorist organization.  And there is a list that's
        6    published in that CFR, Code of Federal Regulations, that says
        7    these groups are officially designated foreign terrorist
        8    groups, so you shouldn't give money to them or support them.
        9             The next paragraph says:  The intent of the Special
       10    Administrative Measures is to deprive Abdel Rahman, convicted
       11    of terrorism offenses, of communication facilities and
       12    equipment.  Abdel Rahman has been afforded a right to meet with
       13    counsel which should not be abused to allow Abdel Rahman to
       14    passes messages which, simply put, can get people killed and
       15    get buildings blown up.
       16             This office is recommending to the office of
       17    Enforcement Operations of the Department of Justice that you
       18    must execute an amended affirmation recognizing the severity of
       19    the consequences of a violation of a violation of the Special
       20    Administrative Measures before any more legal visits can even
       21    be contemplated.  I enclose such an affirmation.
       22             Then it is signed by me with copies to the warden in
       23    Rochester, to an attorney at the prison in Rochester, and to
       24    the fellow Michael Brave of the Office of Enforcement
       25    Operations, who is working on this.
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        1             And then enclosed besides the articles and besides the
        2    notice of Special Administrative Measures going back to
        3    December 10, 1999 was a revised affirmation that included
        4    additional language beyond what had been signed in May of 2000.
        5    Q.  Incidentally, Mr. Fitzgerald, who drafted the attorney
        6    affirmations?
        7    A.  I did.  This one in particular or all of them?
        8    Q.  This one in particular and also the one that's attached as
        9    Government Exhibit 7.
       10    A.  My assumption is, the way things were working, since these
       11    were new and I was the one that suggested the Special
       12    Administrative Measures that I took the first draft at suggests
       13    what the affirmation should say.  It may be that what I wrote
       14    became the first affirmation.  It could be that people in
       15    Washington edited it.  I wouldn't remember that.  But I played
       16    a significant role in the first draft.  I drafted the revised
       17    one to add new language to it.
       18             And then later on defense counsel, I think Mr. Clark
       19    and Mr. Jabarra, wanted to change the language in ways that
       20    they felt more comfortable with, and I agreed with their
       21    suggestions and incorporated their language into the
       22    affirmations.  And one other time they wanted to reserve some
       23    rights, so I suggested they had an issue about whether they
       24    would sign it, whether they should type something at the bottom
       25    to make clear that they weren't waiving certain rights.  So I
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        1    think I was the principal person drafting these documents.
        2    Someone in Washington could have made changes.  And at some
        3    point some defense counsel suggested changes that I agreed to.
        4    Q.  Directing your attention to the second page of the attorney
        5    affirmation, in particular, paragraph 4.
        6    A.  Okay.
        7    Q.  Is this paragraph entirely new or partially new from the
        8    prior version?
        9    A.  It is -- certainly, a lot of it is new.  I think the entire
       10    thing may be new.  No.  If you -- I'm looking myself at the old
       11    one.  There was five lines in the old paragraph 4 and now there
       12    is a lot more.  So it was an expanded paragraph 4 that added
       13    more traditional language to what had been signed for, but
       14    there was a paragraph 4 before that made the same point.
       15    Q.  Starting with the second full sentence in that paragraph.
       16    It starts:  I further.
       17    A.  In addition to what's said before it, the quote says:  I
       18    further specifically understand that Abdel Rahman has been
       19    convicted of terrorism offenses, including soliciting crimes of
       20    violence, and that terrorist actions have been carried out in
       21    his name subsequent to his conviction, including the killing of
       22    approximately 60 tourists in Luxor, Egypt in November 1997, and
       23    the kidnapping of tourists in the Philippines in the spring of
       24    2000.  Moreover, the Islamic Group with which Abdel Rahman is
       25    affiliated has been designated a foreign terrorist organization
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        1    by the Secretary of State.  I thus understand that a violation
        2    of the Special Administrative Measures including, but not
        3    limited to, dissemination of messages on behalf of Abdel Rahman
        4    can result in violence to persons or property here in the
        5    United States or overseas.  I specifically understand that the
        6    intent of the Special Administrative Measures is to deprive
        7    Abdel Rahman, convicted of terrorism offenses, of communication
        8    facilities and equipment, and that his opportunity to consult
        9    with counsel is not to be converted into an opportunity to use
       10    communication equipment and facilities for any purpose other
       11    than legal consultation.
       12             And I definitely added that language.  That's mostly
       13    out of the letter I just read.  I put that language in there.
       14    Q.  The next portion of this packet of material in Government
       15    Exhibit 9, is that the same set of SAMs, Special Administrative
       16    Measures, that you read before?
       17    A.  Yes, dated December 10, 1999.
       18    Q.  Directing your attention to the attached news articles,
       19    were these the news articles that you were referring to
       20    previously when you said you had seen reports?
       21    A.  Yes.  Let me just correct that.  I saw reports and I think
       22    I saw the reports in June of 2000.  I know I saw the reports
       23    prior to June 19, 2000, definitely.  And then these are
       24    attached to a letter dated August 2000.  Whether they were
       25    similar reports I saw or not, when we sent the letter out we
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        1    might have printed new ones.  A lot of reports were very
        2    similar.  These might not be the identical ones I read at the
        3    time, but they were immediate reports basically saying the same
        4    thing.
        5    Q.  Could you read this article to the jury, Mr. Fitzgerald?
        6    A.  Yes.  The first one is dated --
        7             MR. TIGAR:  Excuse me, I object to that.
        8             THE COURT:  It is in evidence, so it can be read to
        9    the jury.
       10             But, again, ladies and gentlemen, a newspaper article
       11    is not being offered for the truth but, rather, for its effect
       12    on the people.  So it is for its effect on Mr. Fitzgerald and
       13    on anyone who received the letter, not for the truth, but for
       14    why people took action or any effect it may have had on
       15    anyone's state of mind.
       16             Again, what is written in a newspaper article is not
       17    independent evidence of the truth of what's in that newspaper
       18    article because a newspaper article is a statement by a
       19    reporter out of court about what happened, and you don't have
       20    the reporter here to testify about that.  That's why newspaper
       21    articles in and of themselves are not received for the truth.
       22    They are received, if they are received, for other purposes,
       23    such as why people did things, having seen the article, or how
       24    it affected their state of mind.
       25    A.  I'll begin reading where it says Cairo, June 14, Reuters.
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        1    Q.  Actually, if you could read the by line.
        2    A.  It is spiritual chief of Egypt, militants renounces truce,
        3    by Esmat Salaheddin.
        4    Q.  What is the date of this article?
        5    A.  June 14, 2000.  And then reading it says:  Cairo, June 14,
        6    Reuters.  The spiritual leader of Egyptian Moslem militants,
        7    whose bloodiest act was the 1997 Luxor massacre, has renounced
        8    their truce, his lawyer said on Wednesday:
        9             "He is withdrawing his support for the cease fire that
       10    currently exists," Lynne Stewart, the main lawyer for Sheikh
       11    Omar Abdul Rahman, told Reuters by telephone from New York.
       12             The Sheikh is serving a life sentence in the United
       13    States for his role in a plot to bomb New York buildings in
       14    1993.
       15             She read a statement which she said he had issued two
       16    weeks ago from his jail cell in Rochester, Minnesota, which his
       17    defense team had held while considering how best to release it.
       18             Stewart said Sheikh Omar had concluded that the
       19    unilateral truce observed by al-Gama'a al-Islamiya (Islamic
       20    Group) since the Luxor slaughter of 58 foreign tourists and
       21    four Egyptians had brought no advantage to Egypt's biggest
       22    militant group.
       23             "There is absolutely nothing moving forward," she
       24    quoted his statement as saying in Arabic.  "The thousands of
       25    people who are in prison (in Egypt) are still in prison, the
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        1    military trials continue.  Executions are taking place."
        2             Last year, exiled Gama'a leaders endorsed a 1997 cease
        3    fire call by their jailed comrades in the shura (consultative)
        4    council that sets the group's guidelines.
        5             "The people who launched the cease fire have good
        6    faith but the Egyptian government has shown no good faith,
        7    Sheikh said in the statement.
        8             "He wants people not to place hope in the process
        9    because nothing is moving forward," Stewart said.
       10             Moslem militants in Egypt and abroad say the views of
       11    the 61-year-old blind cleric are highly respected by his
       13             Exiled Egyptian Islamists say his latest decision may
       14    further deepen rift between what are believed to be two camps
       15    inside the Gama'a, those who support the cease fire and those
       16    who want to continue the armed struggle.
       17             Then there is a subheading that says:  Leaders said to
       18    be ill-treated in jail.
       19             Stewart said the Sheikh was completely isolated in
       20    jail and was not well treated.
       21             "He is held in solitary confinement, but his faith is
       22    very very strong," she said.  They (U.S. prison authorities)
       23    may bar me from visiting him because of this announcement."
       24             U.S. officials could not immediately be reached for
       25    comment.
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        1             Stewart said Sheikh Omar's legal defense team visits
        2    him every few months and calls him once a week.  He is
        3    permitted one call a month to his wife in Cairo.
        4             The cleric was tried twice in Egypt in the early 1980s
        5    but acquitted for lack of evidence.  He made his way into the
        6    United States in 1990, after obtaining an American visa in
        7    Khartoum.
        8             About 1,200 people, mainly militants and police, were
        9    killed during a 1992-1997 insurgency by Moslem radicals bent on
       10    toppling President Hosni Mubarak's pro-Western government and
       11    turning Egypt into a purist Islamic state.
       12             Egyptian jails hold 12,000 political detainees who
       13    have not been charged or tried, the U.S. State Department
       14    reported in February.  A local human rights group put the
       15    figure at 15,000.
       16             The Interior Ministry says about 5,000 detainees have
       17    been released in the past three years, though human rights
       18    activists and Islamists say the number is much lower.
       19             Military courts have sentenced about 95 militants to
       20    death since 1992, of whom 72 have been executed.  Sentences by
       21    military courts cannot be appealed under Egypt's emergency laws
       22    in force since militants assassinated President Anwar Sadat in
       23    1981.
       24    Q.  Directing you, Mr. Fitzgerald, to the next article in the
       25    series.
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        1    A.  Yes.
        2    Q.  What is the date of that article?
        3    A.  That's dated Sunday, June 18, 2000, and it is the same by
        4    line, Esmat Salaheddin, and again Cairo and Reuters, although
        5    dated June 18.
        6    Q.  Can you read this article to the jury, please.
        7    A.  It says:  Egyptian Moslem militants may end a two-year-old
        8    truce in their struggle against President Hosni Mubarak's
        9    government, one of their leaders said on Sunday.
       10             Refa'i Taha, a leader of Egypt's biggest militant
       11    tall, al-Gama'a al-Islamiya, Islamic Group, told Reuters by
       12    telephone from an undisclosed location that the group would
       13    review its position after its spiritual leader, Sheikh Omar
       14    Abdul Rahman, renounced the unilateral cease fire from his U.S.
       15    jail cell.
       16             "Stopping operations is a human decision that could be
       17    cancelled if a majority of the Gama'a finds this is in its
       18    interest, especially after the Sheikh's latest instructions, in
       19    which he withdrew support for of the initiative," Taha said.
       20             A U.S. court gave Sheikh Omar a life sentence in 1995
       21    for his part in a plot to bomb New York buildings.
       22             His lawyer quoted him last week as renouncing his
       23    backing for a unilateral truce observed by Gama'a and other
       24    militant groups since six Gama'a gunmen massacred 58 foreign
       25    tourists and four Egyptians in Luxor in November 1997.
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        1             The truce, initially proposed in July 1997, ended a
        2    bitter six-year-long struggle that cost more than 1,200 lives
        3    without achieving Gama'a's goal of installing a purist Islamic
        4    state.
        5             Sheikh Omar said the truce had failed, citing
        6    continued detentions, military trials and executions of
        7    Islamists.
        8             There is no doubt that Gama'a leaders will reconsider
        9    their position based on the Sheikh's instructions, said Taha, a
       10    Gama'a founder thought to be based in Afghanistan.
       11             Omar Abdel Rahman is the emir (commander) of the
       12    Gama'a and enjoys great respect not only in the Gama'a, but in
       13    all Islamic factions, he declared.
       14             Islamists in Egypt and abroad say Taha is Gama'a's
       15    most influential leader in exile.  Other leaders are in prison
       16    in Egypt for the 1981 assassination of President Anwar Sadat.
       17             Taha said militant groups had know chance to turn
       18    themselves into political parties because Mubarak's government
       19    would not give fundamentalists a legal political voice.
       20             "I have repeatedly said the regime can never let the
       21    Islamic trend play an effective political role through
       22    recognized parties," he said.  "It will not let anyone else
       23    share in the power game."
       24             Taha cited the rejection of requests by three Islamist
       25    parties, al-Wasat, Islah and Sharia, for official recognition
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        1    and the recent suspension of the Islamist-oriented labor party
        2    only because it enjoyed real popularity and advocated issues
        3    that embarrassed the government.
        4             Under the heading Islamic revolution it says:
        5             Taha said revolution was the only way for Egyptians to
        6    get rid of the government and select their own leaders.
        7             When the Gama'a announced the halting of its
        8    operations, it did not say it would give up its hostile
        9    position of opposition to the Egyptian regime.
       10             And by conviction, the only way for the Islamic
       11    movement to achieve victory is for Islamic factions to unify
       12    their position and mobilize the Egyptian people, led by the
       13    army, clerics, and university professors, in a revolution that
       14    does not stop until the regime is uprooted," he declared.
       15             Taha said government harassment of fundamentalists
       16    trying to preach their message would force them to take up arms
       17    again.  He said violence could also come from unknown factions.
       18             "As long as the regime continues suppression,
       19    detention and torture of preachers, some young men will
       20    definitely emerge to save their comrades," he said.  They may
       21    not be from al-Gama'a.
       22             There are other strong groups that have not approved
       23    the cease fire, and there are people like Saber (Farahat) and
       24    Suleiman Khater, who belonged to no group or organization.
       25             Taha was referring to Saber Farahat, who killed nine
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        1    German tourists in Cairo in 1997, and Suleiman Khater, an army
        2    conscript who shot dead seven Israeli tourists in Sinai in
        3    1985.  Farahat was hanged.  Khater was found hanged in his jail
        4    cell.
        5             Taha said Egypt could only gain stability by adopting
        6    Sharia (Islamic law), spreading justice, ending the state of
        7    emergency and stopping the pursuit and detention of preachers.
        8             And the last sentence on the next page:  Taha
        9    dismissed media speculation about an attempt to remove him from
       10    Gama'a's shura (consultative) council, saying the group
       11    deliberately kept the identity of its leaders secret.
       12             (Continued on next page)
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        1    Q.  Directing your attention to the next article in the series
        2    of articles, and with the court's permission I will read this
        3    one to give Mr. Fitzgerald's voice a rest.
        4             THE COURT:  I am sorry?
        5             MR. MORVILLO:  With the court's permission may I read
        6    this article to give Mr. Fitzgerald's voice a rest?
        7             THE COURT:  No.
        8    Q.  Mr. Fitzgerald, and --
        9             THE COURT:  The same instructions, ladies and
       10    gentlemen, with respect to all of the newspaper articles that I
       11    have already given.
       12             None of this is being received for the truth of
       13    anything that is said in the newspaper articles.
       14    A.  Okay, this one is dated Monday, June 19, 2000, Cairo,
       15    Egypt.  It says "Lawyer:  Imprisoned militant leader calls for
       16    reevaluation of group's cease-fire, not its cancellation, by
       17    Tarek El-Tablawy.
       18             "Cairo, Egypt (Associated Press) - The spiritual
       19    leader of Egypt's leading militant group is asking that the
       20    group reevaluate its decision to maintain a unilateral
       21    cease-fire with the government, a lawyer close to the group
       22    said Monday, downplaying reports of a widening rift among the
       23    militants.
       24             "Recent reports said Sheikh Omar Abdel-Rahman, who is
       25    serving a life sentence in the United States for plotting
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        1    terrorist attacks against New York monuments, had told his
        2    followers that they are free to choose between a cease-fire and
        3    armed struggle.
        4             "However, lawyer Muntasir al-Zayat said the text of
        5    any statement by Abdel Rahman to the imprisoned leaders of
        6    al-Gama'a al-Islamiyya, or Islamic Group, "does not include a
        7    word . . . on his withdrawal of support for the cease-fire
        8    initiative.
        9             "The Islamic Group led an insurgency in Egypt that
       10    began in 1992 and resulted in the deaths of more than 1200
       11    people, mostly militants and police, before a harsh government
       12    crackdown in 1998.
       13             "Nine top jailed leaders, including Abdel Rahman,
       14    approved a cease-fire in 1997 after the massacre of 58 foreign
       15    tourists by Islamic Group guerrillas in the southern town of
       16    Luxor in November 1997.
       17             "In a bid to clear up the controversy, the imprisoned
       18    leaders have drafted a letter to Abdel Rahman, asking him to
       19    clarify his stand on the cease-fire, said Al-Zayat.
       20             "Abdel Rahman's letter, released Wednesday, complained
       21    of the government's use of military trials, extrajudicial
       22    killings, mass arrests of militants, and said Egypt had failed
       23    to release jailed militants.  He called on the group's leaders
       24    to "reevaluate the policies of the Gama'a," and expressed his
       25    support "for those positions that best serve the interest" of
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        1    the group.
        2             "The Islamic Group's jailed leaders claim that the
        3    blind cleric was unaware of government behavior since the
        4    group's unilateral initiative" -- on the next page -- "and
        5    their letter to him notes that the government has stopped the
        6    extrajudicial killings, arrests and military trials and has
        7    released some 2500 militants.
        8             "Al-Zayat said Mustafa Hamza, the group's exiled head
        9    of the Shura Council, its top body, said that the council had
       10    taken no decision to reverse its position on the cease-fire."
       11    Q.  Directing your attention to the last in the series of
       12    articles dated Friday, June 23, 2000, could you also read that
       13    last one into the record, Mr. Fitzgerald?
       14    A.  Yes.  It's from Agence, and I don't know how to say it --
       15             THE COURT:  Again, the same instruction, ladies and
       16    gentlemen.
       17    A.  France-Presse, dated Friday, June 23, 2000.
       18             "Cairo, June 23 - The spiritual leader of Egypt's
       19    largest armed Muslim militant group, the Jamaa Islamiya, says
       20    has withdrawn his support for the group's cease-fire.
       21             Sheikh Abdel Rahman, who is serving a life term in a
       22    U.S. prison, reiterated his position in a statement received
       23    here Friday, after some of the group's leaders in Egypt
       24    dismissed as inaccurate earlier reports that he had abandoned
       25    the path of nonviolence.
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        1             "I have not annulled (the March 1999 cease-fire), but
        2    I have withdrawn my support for it and made my opinion clear,"
        3    he said in the statement.
        4             The call to end violence was first made in July 1997
        5    by six Jamaa leaders who were in jail in Egypt, and was backed
        6    at the time by Sheikh Omar.
        7             But in his latest statement, he accused Egyptian
        8    authorities of "brazenly" continuing to commit "scandalous
        9    crimes" such as killing innocent people, random imprisonment
       10    and attacking people's homes.
       11             "I leave it up to my brothers living in Egypt to do as
       12    they see fit as they know the situation better than me," he
       13    said.
       14             Another of Jamaa's leaders, Rifa'i Ahmed Taha --
       15    considered by security officials here as its military leader --
       16    was quoted Monday by an Arabic newspaper as saying the group
       17    might still decide to resume armed attacks.
       18             But other Jamaa leaders said last week that the group,
       19    whose goal was to bring down the Egyptian government and set up
       20    an Islamic state, had "not gone back on its position" and the
       21    cease-fire was still valid.
       22             After the July 1997 call to end violence, the exiled
       23    Jamaa leadership did not heed the appeal immediately and in
       24    November that year the group claimed responsibility for the
       25    massacre of 58 foreign tourists and four Egyptians in the
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        1    southern city of Luxor.
        2             In the months that followed, the group's superior
        3    council condemned the massacre and announced it was ending
        4    violence.  More than 1300 people have died in Muslim militant
        5    violence since it erupted here in 1992.
        6             Sheikh Omar was sentence to life in prison in 1996 by
        7    a U.S. court for his involvement in a bomb attack against New
        8    York's World Trade Center three years earlier that skilled six
        9    people and injured 1000."
       10             MR. MORVILLO:  Your Honor, this would be an
       11    appropriate time for a break?
       12             THE COURT:  All right.
       13             Ladies and gentlemen, we will take ten minutes.
       14    Please remember my continuing instructions not to talk about
       15    the case, keep an open mind.
       16             All rise please.
       17             (Jury left the courtroom)
       18             THE COURT:  All right, we will take a break.  If the
       19    witness can step down and go to whatever you are using for the
       20    jury room because -- out that way if you want -- because there
       21    were some evidentiary issues you wanted to talk about outside
       22    the presence of the witness.
       23             Have a seat please.
       24             MR. TIGAR:  Our particular hearsay concern, your
       25    Honor, with respect to this reason for the witness making a
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        1    decision is amply reflected in the September 28 hearing when he
        2    described a visit that he had from I think the FBI but at any
        3    rate people engaged in intelligence operation that was on the
        4    other side of the wall and Mr. Morvillo in his opening
        5    statement explained to the jury in some detail that there had
        6    been this intelligence operation and that that was the reason
        7    that the government didn't tabling certain acts that it might
        8    otherwise have.  So this is not the question of a newspaper
        9    article that motivates someone, this was very crucial evidence
       10    and that is the reason we were objecting to the hearsay but I
       11    didn't want to say enough in the presence of the jury to alert
       12    people that this is that issue.
       13             THE COURT:  Yes, I understand.
       14             MR. TIGAR:  That is our view, Judge.
       15             THE COURT:  Mr. Morvillo.
       16             MR. MORVILLO:  I am sorry, you ask me to respond or
       17    are you asking me a question?
       18             THE COURT:  I am asking you.
       19             Let me give you a perspective and then you can
       20    respond.
       21             I take it that the defense objection is that for the
       22    witness to testify that he stopped what he otherwise might have
       23    done in terms of a criminal investigation because of a national
       24    security investigation is itself not critical to a decision of
       25    the issues in the case.  In terms of the charges in the case,
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        1    why the government did or did not do various things in the
        2    course of an investigation doesn't go to whether the charges in
        3    the indictment have been proven on the evidence beyond a
        4    reasonable doubt.  And the concern is that, if I understand it,
        5    there is -- that it's not -- that it doesn't go directly to the
        6    charges in the indictment and there is a 403 issue with respect
        7    to the reason and therefore the hearsay as to what he was told
        8    shouldn't come in.
        9             Now, on the other hand, if the defendants were to
       10    challenge why he didn't proceed and why he had discussions with
       11    one of the defendants and didn't explain everything that was
       12    going on, then it would become fair rebuttal as to why he did
       13    or did not do that.  But I don't know if that is something --
       14    that certainly was the thrust of an examination at the last
       15    hearing.  And of course that is redirect.
       16             If that weren't the case, then the question is if
       17    there is an objection as to relevance and 403 as to why you
       18    didn't pursue the criminal investigation, then the question
       19    really is to respond to that.  And the other part of that, it
       20    seems to me in thinking about it, is I have to look carefully
       21    at the documents and the redactions in the documents to answer
       22    the question whether such things as who was at that meeting,
       23    the details of what was said at that meeting, then become
       24    relevant.  And I have to carefully explore all of the
       25    redactions from the two documents that have been redacted.  I
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        1    would have thought that if there is an objection as to why he
        2    didn't pursue it at the time and that is not going to be
        3    pursued from either side, that it's perfectly sufficient to
        4    leave it that he had a conversation and he stopped.  But that
        5    is where I think things are.
        6             Why don't you think about it and we will take a
        7    five-minute break.
        8             MR. MORVILLO:  Very well, your Honor.
        9             (Recess)
       10             (In open court; jury not present)
       11             THE COURT:  Please be seated all.
       12             MR. MORVILLO:  Your Honor, the fact that this case
       13    arose from an intelligence investigation is going to come into
       14    evidence at some point one way or the other.
       15             The fact that this case arose from an intelligence
       16    investigation is going to come into evidence at some point one
       17    way or another, either through testimony about the court
       18    authorization that led to the wiretaps being from the foreign
       19    intelligence surveillance court, whether it's from the
       20    interpreters who are going to testify as to their job as
       21    analysts and interpreters at the FBI and how they were involved
       22    in listening to the telephone calls on a daily basis.  At some
       23    point it is going to be relevant.  We think it's highly
       24    relevant as a general matter to demonstrate why the government
       25    did what it did when it did it.
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        1             Why the government let Lynne Stewart go back into the
        2    prison in July 2001 after this violation is highly relevant to
        3    the conduct of the government.  The jury will be left to
        4    speculate as to government motives, government harm to the
        5    government, the materiality of her false statements, her
        6    alleged false statements, for a variety of reasons, the fact
        7    that she was permitted to go back in in July 2001 is relevant.
        8    And one conclusion could be that the government really wasn't
        9    harmed all that much because they let her go back in.
       10             But the fact is that Mr. Fitzgerald was told by the
       11    FBI stand down any criminal investigation because we are
       12    conducting an intelligence investigation and we need to
       13    continue to gather this intelligence and therefore the benefits
       14    that we are gaining from this intelligence investigation
       15    outweigh any benefits to a criminal prosecution which can be
       16    deferred for a little while.
       17             Mr. Paul opened on exactly that fact.  He made the
       18    argument that in October of 2000 when the fatwah was issued of
       19    course the government wasn't concerned that it was going to be
       20    carried out because they would have come in and arrested him at
       21    that time.  But here we are unable to respond to that
       22    allegation, that argument that he made in his opening
       23    statement.
       24             So the government would submit that the very narrow
       25    testimony that Mr. Fitzgerald is going to give or would give on
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        1    this issue, which would consist of the following:  What
        2    happened at that meeting?  My understanding is that his
        3    response would be to the effect of I was told that there was a
        4    foreign intelligence investigation under way that related to
        5    this series of events in June of 2000, and that a decision was
        6    made that the benefits -- the ongoing gathering of intelligence
        7    that was occurring -- outweighed any criminal prosecution at
        8    that time.  That is it.
        9             He is going to testify that I was told to stand down,
       10    and then he is left in the situation of having to formulate a
       11    strategy to respond to the apparent violation of the special
       12    administrative measures by Ms. Stewart, so he comes up with
       13    this idea of sending a letter to her which cuts her off from
       14    Abdel Rahman.  It serves the purpose of allaying any
       15    possibility that the defendants may have learned of the
       16    intelligence investigation as a result of government inaction.
       17             In other words, there was a very real concern that if
       18    the government did absolutely nothing, that the defendants
       19    would believe that while they must be listening to us, they
       20    must be figuring out what we are doing, so we should stop and
       21    we should find alternative means.  Or, on the other hand, if
       22    there had been a criminal investigation and a grand jury had
       23    been convened, it's quite possible of course that that would
       24    have unearthed the intelligence investigation.
       25             So the reasons why Mr. Fitzgerald did what he did, the
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        1    affect that his instructions to stand down by the FBI had on
        2    his state of mind and his actions, the government submits, are
        3    very relevant to the issues that are before this jury and will
        4    certainly avoid any unfair speculation or surmise by the jury
        5    as to the reasons why the government did or did not do certain
        6    things, and it certainly is an issue that has been injected in
        7    to this case on several occasions, most recently in Mr. Paul's
        8    opening statement this morning.
        9             THE COURT:  All right.
       10             MR. TIGAR:  In his opening statement Mr. Morvillo said
       11    that there had been this stand-down, and I don't think he used
       12    that word, but he did use the words national security, as I
       13    recall.  So the government opened that door.
       14             Now, at this point the claimed relevance of the FBI's
       15    visit to Mr. Fitzgerald is to explain what he should do.  For
       16    us the concern is not primarily relevance.  Certainly we think
       17    that that is not relevant to any issue so far in the case, but
       18    Mr. Morvillo says that it will be at some point.
       19             We, therefore, want to make the following point:  When
       20    an intelligence investigation, a foreign intelligence
       21    investigation, is directed at somebody that paints the T, the
       22    terrorism word, on that person.  Vague ideas about national
       23    security are very significant.  What is being proposed is to
       24    let Mr. Fitzgerald testify to the hearsay declarations of
       25    government employees who told him something.  That is what we
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        1    object to because not only does it violate the hearsay rule, it
        2    denies us the opportunity for cross examination and, more
        3    important, what the government is trying to do here, your
        4    Honor, is to not have to call those declarants because as soon
        5    as it does, they know that we are going to drive right into a
        6    CIPA hearing and they don't want to have those problems about
        7    producing the Jencks material on those people who said those
        8    things.  Because in fact, your Honor, if they want to make that
        9    an issue, we have seen versions of the Fitzgerald 2000
       10    memoranda.  In our respectful submission, it was not relevant
       11    then to point it out, but it is now.
       12             That investigation, so far as Ms. Stewart was
       13    concerned, was utterly fictitious.  It was based on sloppy
       14    intelligence.  It was based on wrong assumptions.  It was based
       15    on conclusion jumping, and therefore the importance of being
       16    able to cross examine the declarants could not be overstated.
       17             Moreover, and I say this, if what the declarants were
       18    doing was reporting to Mr. Fitzgerald in his capacity as a law
       19    enforcement officer, then I really do think we are in Crawford
       20    country.
       21             MR. MORVILLO:  Your Honor --
       22             MR. RUHNKE:  Can I add something for my client's part?
       23             MR. MORVILLO:  I am sorry.
       24             MR. RUHNKE:  I don't think it's at all inevitable, and
       25    Mr. Morvillo seems to think it is, that the nature of the
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        1    otherwise lawful intercept will come before the jury.  I
        2    believe, or I would hope and expect, that if the time comes
        3    that it does become relevant your Honor will give an
        4    instruction, as you already have, that any intercepted
        5    conversations is pursuant to a lawful court order, and that is
        6    the end of of it.
        7             The jury does not need to know that someone was
        8    worried about national security in order to procure these
        9    wiretaps.  I don't know how it is the fact that the FBI
       10    language specialist will testify necessarily implicates that
       11    this was a FISA intercept.  I see 403 objections if that is put
       12    forward by the government.
       13             THE COURT:  Well, it does appear to me that what the
       14    issue with respect to the conversation with the FBI -- and,
       15    again, the defendants may on this in their cross examination of
       16    Mr. Fitzgerald, but sufficient unto the day he is being asked
       17    to testify about the truth of the conclusion that, as Mr.
       18    Morvillo put it, the benefits outweighed the costs, and that is
       19    a decision which is being made not by Mr. Fitzgerald, according
       20    to his testimony, but by others, that he was told to stop
       21    because others concluded that the risks to the other
       22    investigation were such that they shouldn't be borne, and so he
       23    had a meeting with the FBI and was told to stand down from a
       24    criminal investigation what he would otherwise have done, grand
       25    jury, and that is where it stands and I don't see the relevance
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        1    of his going further than that, and it is a hearsay problem
        2    with respect to the truth of what he was told about, as Mr.
        3    Morvillo puts it, the benefits outweighing the costs.
        4             It is not clear to me that it's inevitable because I
        5    don't know at this point the degree to which any of the orders
        6    authorizing the intercepts would be or could be challenged in
        7    the course of this proceeding.  They were court ordered.  I
        8    have passed already in the FISA motion on these issues and the
        9    usual instruction is something to the effect that the material
       10    pursuant to that was seized was lawfully seized and you
       11    shouldn't -- it's not an issue for you, or words to that
       12    effect.  So it's not clear to me why, unless the defendants
       13    raise issues to which this is responsive, that the details of
       14    some of this would even be explored, or that extra credentials
       15    on behalf of various people would be put before the jury.
       16    Again, all depending on what issues are raised by the
       17    defendants.
       18             Now, Mr. Paul's comment in opening raises an issue.
       19    On the other hand, the comment was directed actually towards
       20    the 1998 I think fatwah, perhaps the 2000 fatwah.
       21             MR. MORVILLO:  I think it was directed to the 2000
       22    conduct in general, your Honor.
       23             THE COURT:  It was also an argument that he had been
       24    surveilled for 7 years and the difference between the 2000 and
       25    2001 is not determinative at this point.  Again, it may be as
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        1    the case develops that something here warrants a response.
        2    Perhaps the something will even be cross examination in which
        3    case the answer is redirect, but I don't see a sufficient basis
        4    for going beyond what the testimony is at this point.  He had a
        5    meeting with the FBI and as a result of the meeting he stopped
        6    the criminal creation for the reasons that I have explained.
        7             MR. MORVILLO:  Your Honor, just so the record is
        8    clear, I just want to quote from Mr. Paul's opening statement
        9    this morning.  He talked in general about the fact that there
       10    was no threat or danger to anyone and then said, "Why do I say
       11    this?  Because the evidence will show that the communications
       12    with the sheikh concerning his withdrawal of support for the
       13    initiative was in May and June 2000.  The conversations
       14    regarding the assistant to Atia took place for several months
       15    and continued to October 2000 and the fatwah, this fatwah that
       16    was issued in October 2000 and yet the government did not
       17    arrest my client until April 2002, over 1-1/2 years after the
       18    fatwah.  You can be sure, ladies and gentlemen, that if the
       19    government really suspected or feared something was about to
       20    occur, or there was any concern that my client was a real
       21    threat to anyone, they would have awaited to arrest him until
       22    1-1/2 years later?  And you just can't casually sweep this fact
       23    under the rug as Mr. Morvillo did yesterday at the very near
       24    end of his opening remarks."
       25             THE COURT:  That would suggest to me that the argument
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        1    is still well founded that the person who made the decision
        2    that the benefits outweighed the costs is the person who should
        3    respond to that and not simply a person who was told to stand
        4    down.
        5             MR. MORVILLO:  The reasons why the decision was made
        6    are completely irrelevant.  In other words, if the FBI had said
        7    to Mr. Fitzgerald we think that Mickey Mouse is the head of the
        8    Islamic Group and this investigation is going to figure it out,
        9    and he thought that was crazy, that doesn't matter at all.
       10             THE COURT:  But if that is true, then it should be
       11    sufficient that he had a conversation with the FBI and the FBI
       12    told him to stand down and the reasons are utterly irrelevant
       13    and he stood down.
       14             MR. MORVILLO:  But what is missing is that there was
       15    something else going on, something more important that the
       16    government was doing, that it felt it was doing that resulted
       17    in inaction on this half.
       18             THE COURT:  Yes, but that --
       19             MR. MORVILLO:  Let's take it in the context of the
       20    Count 6 and 7 false statements charge just for a second.
       21             The government has to prove that Ms. Stewart's
       22    statements in May 2000 were materially false.  Without this
       23    testimony, without an explanation as to why nothing happened
       24    until April of 2002, and in addition to the fact that the jury
       25    is going to learn that the government let Ms. Stewart back in
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        1    in July 2001, there is the possibility for confusion and
        2    speculation by the jury that the false statements, the alleged
        3    false statements, in May 2000 were not at all material.  The
        4    government wasn't that concerned about them because they didn't
        5    do anything.  They let her back in.  And that is at the heart
        6    of this case and is a very critical fact that the government
        7    needs to prove.
        8             MR. RUHNKE:  In reply to that, what Mr. Morvillo is
        9    simply saying is that if you follow that line of the argument
       10    is that the government needs to prove the truth of the reasons
       11    why it wasn't pursued, that they then become relevant reasons
       12    why it wasn't pursued.  But that would require calling the
       13    people who actually have the knowledge as to why it wasn't
       14    pursued.  If, as the government seemed to maintain, it didn't
       15    matter really what Mr. Fitzgerald was told and therefore it's
       16    not being offered for the truth of it, then where we are is if
       17    it doesn't matter, it ought not to be put before the jury, but
       18    it carries with it the freight that the jury might not be able
       19    to follow the limiting instruction when they are told there was
       20    a national security investigation in process and that Mr.
       21    Fitzgerald was told that the benefits of that investigation
       22    would be compromised by pursuing the criminal investigation at
       23    that point.
       24             So that I think what Mr. Morvillo has done is even
       25    more emphatic, that if that evidence is going to come before
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        1    the jury in any form, it certainly should not come through Mr.
        2    Fitzgerald and so we continue to object to it.
        3             MR. MORVILLO:  Your Honor, the materiality point has
        4    nothing to do with what the FBI told Mr. Fitzgerald.  It has to
        5    do with what effect it had on Mr. Fitzgerald's mind.  He was
        6    about to do something in connection with this criminal matter
        7    and was told to stop and it doesn't matter the reasons why he
        8    was told to stop.  He was told to stop and so --
        9             THE COURT:  And that is in, is it not?
       10             MR. MORVILLO:  Yes, but we need one more fact, and
       11    that is that --
       12             THE COURT:  You think about it.  I really have ruled
       13    at this point and it is true, and I will listen to the rest of
       14    the testimony.  I will listen to the cross.  The more you argue
       15    the point as to the criticality, I mean, you ask me to accept
       16    on the one hand that the reason doesn't make a difference at
       17    all.  It could have been a completely frivolous reason.  All
       18    that matters is he was told to stand down and he did and then,
       19    on the other hand, you ask me to accept that the importance of
       20    the reason is really relevant because it's the importance of
       21    that reason that you should judge why it was that further
       22    actions were allowed, and that goes to weighing the reasons.
       23    And you can think about it but at this point the testimony is
       24    he had a meeting with the FBI and as a result of the meeting he
       25    was told -- if my recollection of the evidence is correct at
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        1    this point -- that --
        2             MR. MORVILLO:  I am not sure it is.  I think that is
        3    right but I would have to go back and check.
        4             THE COURT:  But you should certainly be allowed to --
        5             MR. MORVILLO:  Can I at least clarify that point with
        6    him?
        7             THE COURT:  Yes, if it's not already clear that he had
        8    a meeting with the FBI, after that meeting with the FBI he did
        9    not pursue the criminal investigation, correct?
       10             MR. MORVILLO:  Correct.
       11             THE COURT:  Can you establish when the meeting
       12    occurred?  Unless at this point the defendants open it up
       13    further that would be where it is.  And you are welcome to talk
       14    to Mr. Fitzgerald about that point.  By the way, this testimony
       15    was supposed to be an hour and we eliminated a lot -- well, we
       16    eliminated several minutes in which all of the documents from
       17    Abdel Rahman's trial were going to be authenticated and offered
       18    and the testimony has gone for about 2 hours and 20 minutes.
       19             (Continued on next page)
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        1             MR. MORVILLO:  Your Honor, we did about ten minutes of
        2    testimony this morning with Mr. Fitzgerald before we broke for
        3    lunch.  We came back at about 2:20, maybe 2:30 when we finally
        4    started here and went until about 3:30 -- it has got a little
        5    longer than I anticipated.
        6             THE COURT:  I'm really not attempting to criticize.
        7    But it seems to me from where we are that there is a reasonable
        8    amount more with Mr. Fitzgerald.  And some of it was --
        9             MR. MORVILLO:  Certainly, I am not sure how far I can
       10    go with him with respect to the conduct that he took, for
       11    example, in October of 2001, when he reviewed more FISA tape
       12    and made a determination at that point that the intelligence
       13    investigation should probably end and a criminal investigation
       14    should be pursued.  I don't know that that's particularly
       15    relevant right now.  I really need to consider that issue.
       16             I also need to consider whether I can ask
       17    Mr. Fitzgerald why he let Ms. Stewart back in in July of
       18    2000 -- 2001, why didn't he have her arrested at that time.  I
       19    think those are fair questions, but they might elicit certain
       20    responses that the Court has precluded.  I don't know how much
       21    more testimony I have to elicit from Mr. Fitzgerald.  Whether I
       22    use this testimony or not -- let me withdraw that.  If he were
       23    going to testify about the foreign intelligence nature of the
       24    investigation, I anticipate that his testimony would be another
       25    15 minutes.  So to get around that, I can't imagine that it
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        1    would be more than another 10 minutes or so, but I do need to
        2    assess how much I can do within the scope of the Court's
        3    ruling.
        4             THE COURT:  It is almost 4:30.  Did you want to break
        5    for the day, or are there areas that you want to pursue with
        6    Mr. Fitzgerald while he is still here?  We could go for -- with
        7    the jury -- it is 4:28 and they wouldn't object, I'm sure, if
        8    they were let go at 4:28.  It is up to you.
        9             MR. MORVILLO:  If it is okay with the Court, I would
       10    like to stop for the day and try to reassess with
       11    Mr. Fitzgerald and reconvene with him on Monday morning, if
       12    that's okay with the Court.  In the interim we can try and sort
       13    through the remainder of his testimony.
       14             THE COURT:  Sure.
       15             One of the things that you have to ask yourself is
       16    whether, among other things, the testimony is hearsay or he is
       17    the decision maker and if he is the decision maker, why?  What
       18    is he doing?  The problem with the FBI testimony is, he was
       19    told to do something and it was being offered for the rationale
       20    for why people -- why other people said to do something.
       21             MR. MORVILLO:  I think the testimony would be that he
       22    agreed with the decision at the end of the day, that he
       23    participated in the meeting and it was discussed, and he was a
       24    member of the decision-making process.  But at the end of the
       25    day the result was, Mr. Fitzgerald, stand down your criminal
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        1    investigation.
        2             MS. BAKER:  Your Honor, may we confer for one minute?
        3             MR. MORVILLO:  Your Honor, I think it is a good point
        4    to break so we can recess.
        5             THE COURT:  My office got a phone call from one juror
        6    by juror identification number which was the juror who had told
        7    my deputy or Mr. Grate that there was this wedding on July the
        8    1st, and apparently asking for an answer.  I will tell the jury
        9    that I understand there is a juror with a commitment on July
       10    the 1st who has to make a flight in the afternoon.  Certainly,
       11    we will break in sufficient time for the juror to make the
       12    flight.  Whether we meet on July the 1st, I can't tell them
       13    yet, but we will wait and see, but certainly the juror can make
       14    the plane at 3:00 on July 1.  I'll also give them the
       15    instruction about telling people close to them what case they
       16    are jurors for.
       17             Let's bring in the jury.
       18             One juror has a graduation tomorrow and has to get out
       19    by 4:30.  We will certainly break by 4:30.
       20             (Jury present)
       21             THE COURT:  Ladies and gentlemen, as I told you
       22    earlier, I use the breaks to deal with various legal issues
       23    with the parties and sometimes that takes me more time.  And
       24    today it taken me until up about the time that you leave for
       25    the day, which is 4:30.  Rather than continuing with the
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        1    testimony we will break for the day.  And I should also tell
        2    you that because of scheduling issues we are going to continue
        3    with the testimony of Mr. Fitzgerald next week and we will have
        4    other matters on tomorrow.  It is not uncommon for us to have
        5    to make certain changes because of scheduling matters.
        6             When I talk about scheduling matters I should also
        7    acknowledge that I understand that one of you has a graduation
        8    tomorrow afternoon and wants to make sure that we get out at
        9    4:30, so we will get out certainly by 4:30 tomorrow.  I
       10    understand that another of you has a wedding to go to and has
       11    to make a 3:00 flight on -- from Newark on July the 1st.  And I
       12    can tell you that we will certainly break in time for you to
       13    make that flight.  It is not clear to me whether we will sit on
       14    July the 1st.  But if we do, the length of time we sit in the
       15    morning, we will break in sufficient time so that the juror who
       16    has to make a flight at 3:00 can make that flight.
       17             Mr. Fletcher also advised me that some jurors had
       18    questions about retaining their anonymity vis-a-vis their
       19    families and those close to them as a juror in this case.  And
       20    I've told you that you can tell your families and those close
       21    to you that you are a juror in a case, but don't tell them
       22    anything else about that, about the case.  The reason for
       23    that -- and I'll modify that for you.  But the reason for that
       24    is, you really don't want to get in the situation of having a
       25    conversation with anyone about the case.  You don't want to
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        1    talk to them about the case and you don't want anyone talking
        2    to you about the case.  And not telling people what case you're
        3    on is one way of assuring that you do that.
        4             However, if you believe that you really have to tell
        5    your family or those close to you what specific case you're on
        6    in order to explain why it is that you are a juror in a long
        7    case, you can tell them the name of the case, but please, don't
        8    discuss the case with them, don't tell them anything else about
        9    the case, and don't have them talk to you about the case.  As I
       10    say, the reason for this is simply to make sure that you don't
       11    discuss the case with anyone and no one discusses the case with
       12    you.  If someone should attempt to discuss the case with you,
       13    obviously, you should tell them to stop.  And if someone does
       14    discuss the case with you, as I've told you, you report it to
       15    Mr. Fletcher.  But I just wanted to give you comfort that if
       16    you thought that you had to tell those close to you what
       17    specific case you were on, you could do that without
       18    compromising your anonymity and without violating my order to
       19    you.
       20             But I reemphasize again, don't talk about the case,
       21    don't let anyone talk to you about it, always remember, don't
       22    look at or listen to anything about the case.  If you see
       23    something in the press, just turn away.  Always remember to
       24    keep an open mind until you have heard all of the evidence,
       25    I've instructed you on the law, you've gone to the jury room to
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        1    begin your deliberations.
        2             Have a very good evening and I look forward to seeing
        3    you tomorrow morning a little before 9:30.
        4             All rise, please.
        5             Follow Mr. Fletcher to the jury room.
        6             (Jury not present)
        7             THE COURT:  Anything further for me?
        8             MR. MORVILLO:  Not from the government, your Honor, I
        9    don't believe.
       10             MR. TIGAR:  No, your Honor.
       11             THE COURT:  I'll see you all tomorrow morning at 9:15.
       12             (Adjourned to Thursday, June 24, 2004 at 9:15 a.m.)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1                          INDEX OF EXAMINATION
        2    Examination of:                               Page
        4    Direct By Mr. Morvillo . . . . . . . . . . .  2301
        5                          GOVERNMENT EXHIBITS
        6    Exhibit No.                                    Received
        7     2050B   . . . . . . . . . . . . . . . . . .  2309
        8      6    . . . . . . . . . . . . . . . . . . .  2330
        9     7   . . . . . . . . . . . . . . . . . . . .  2338
       10     9   . . . . . . . . . . . . . . . . . . . .  2350
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300

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