28 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 13 of the proceeding and Day 4 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/
2488 46SSSAT1 1 UNITED STATES DISTRICT COURT 2 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 3 3 UNITED STATES OF AMERICA, 4 4 v. S1 02 Cr. 395 (JGK) 5 5 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 6 a/k/a "Dr. Ahmed," LYNNE STEWART, 6 and MOHAMMED YOUSRY, 7 7 Defendants. 8 8 ------------------------------x 9 9 10 New York, N.Y. 10 June 28, 2004 11 9:30 a.m. 11 12 Before: 12 13 HON. JOHN G. KOELTL 13 14 District Judge 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2489 46SSSAT1 1 APPEARANCES 1 2 DAVID N. KELLEY 2 United States Attorney for the 3 Southern District of New York 3 ROBIN BAKER 4 CHRISTOPHER MORVILLO 4 ANTHONY BARKOW 5 ANDREW DEMBER 5 Assistant United States Attorneys 6 6 KENNETH A. PAUL 7 BARRY M. FALLICK 7 Attorneys for Defendant Sattar 8 8 MICHAEL TIGAR 9 JILL R. SHELLOW-LAVINE 9 Attorneys for Defendant Stewart 10 10 DAVID STERN 11 DAVID A. RUHNKE 11 Attorneys for Defendant Yousry 12 12 13 14 15 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2490 46SSSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Good morning all. Please be seated. 4 I have several issues. 5 First, I received faxes on Saturday and Sunday 6 relating to Luxor. That was followed by a fax from Mr. Dember 7 that I received at about 9:05 on Sunday evening, and then a fax 8 from Mr. Morvillo with respect to Mr. Fitzgerald which I 9 received about 9:15 on Sunday evening. 10 Particularly when faxes come in after 9 o'clock on 11 Sunday evening, it gives no opportunity for the other side to 12 consider what is being sent and it also limits the time that 13 the court has to consider the issues. 14 There really was no reason that, for example, the 15 issue of judicial notice, which was out there since Thursday, 16 could only be addressed at 09 o'clock on Sunday evening or that 17 the issue of Mr. Fitzgerald, which is out there since 18 Wednesday, could only be addressed at 9:15. I realize that the 19 time line on the fax is actually about an hour or 45 minutes 20 earlier. I don't know why it takes so long for a fax 21 transmission, but it really doesn't change anything. 22 I also appreciate that perhaps the government was 23 unable to talk to Mr. Fitzgerald and write the letter until 24 quite late. But this is towards the beginning of the trial and 25 I issue a caution for all of you, this really shouldn't be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2491 46SSSAT1 1 happening. 2 I then received this morning two redwells from Mr. 3 Barkow asking me to consider all of the exhibits in the red 4 well as soon as practicable and it was not clear to me from the 5 cover letter whether it was necessary for me to consider all of 6 those exhibits or not. 7 Before I do that, I would at least ask the parties to 8 consider that. I realize that a history of negotiations is set 9 out for me in the cover letter but I ask you to at least 10 consider the issues again. There have been a couple of 11 occasions when I have made that comment that the parties were 12 able to resolve issues. 13 If I have to review every document in the two 14 redwells, of course I will, in the same way that I have 15 reviewed lots of other documents. 16 With respect to a procedure on faxes, the parties 17 should attempt to get me any faxes by 3 o'clock on Saturday so 18 that I would not normally expect faxes to be coming in on 19 Sunday and on Sunday night. That would give everyone the 20 opportunity to review what everyone else has done. 21 I received this morning a 302 -- I am not sure if it's 22 a 302. I received a submission that was marked as secret 23 relating to Luxor. It was not clear to me why it was that I 24 was receiving that. 25 MR. BARKOW: Your Honor, that was a miscommunication SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2492 46SSSAT1 1 between me and Mr. Brady that was left for him in case an issue 2 arose and your Honor needed to review something that was 3 produced as 3500 material. It was produced in a redacted form 4 to the defendants' 3500 material. Parts of it are redacted 5 because they don't relate to the subject matter of the 6 testimony and parts are redacted because they are classified 7 and so in case the issue came up I thought that your Honor 8 should have it in advance so that we didn't have to send 9 someone back to get it. 10 THE COURT: Okay, thank you. 11 July 1. My view with respect to July 1 is we are 12 scheduled to sit but we can only sit for a brief time. By my 13 calculations in order to allow a juror in order to get to the 14 airport we really couldn't sit for more than 2 hours on July 15 1st. If the testimony is such that, for example, we have a 16 witness who would otherwise be going over and we could 17 otherwise finish the witness, we would sit on July 1st. If I 18 can avoid sitting for 2 hours on July 1 I just will not sit on 19 July 1. 20 All right. The next issue is the request for judicial 21 admission. 22 Do the parties want to be heard further on the 23 judicial admission? 24 MR. TIGAR: I made our position clear in our letter, 25 your Honor. I didn't cite case law because I thought that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2493 46SSSAT1 1 had this issue so often that I didn't need to. The GAF case 2 makes clear that I couldn't ask for judicial admission status 3 for the indictment because that is the grand jury. But when it 4 gets repeated in a pleading I thought that we could, and also I 5 had understood that was the position that Mr. Morvillo had 6 taken at the argument on the first round of pretrial motions. 7 But that is why I didn't cite the case. But the rest of our 8 position is made clear in the letter. 9 MR. DEMBER: Your Honor, our letter spells out our 10 position. Unless your Honor has any questions with respect to 11 it, we will rely on the letter. 12 THE COURT: Okay. 13 Defendant Stewart asked the court to take judicial 14 notice of statements in the government brief that the May 19, 15 2000 affirmation was sent to the government "on or about May 16 26, 2000" to counter the question on redirect to Mr. Francisco 17 which asked whether Mr. Francisco knew whether the May 26 date 18 is an accurate date or a typo. Mr. Francisco testified that he 19 did not know. 20 The government is correct that questions are not 21 evidence and that Mr. Francisco did not adopt the typo 22 suggestion. It is also true that under GAF the prior statement 23 by the government should be inconsistent with the assertion of 24 the government at the current trial and, indeed, GAF noted 25 Judge Winters statement in McKeon that the statement should be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2494 46SSSAT1 1 "clearly inconsistent." 2 At this point it is sufficient for the court to strike 3 the government's question and Mr. Francisco's answer and for 4 the court to instruct the jury to disregard it. So the court 5 will instruct the jury that on redirect examination the 6 government asked Mr. Francisco a question about the May 26, 7 2000 date on a cover letter, Government Exhibit 7. I have 8 stricken that question and answer and the jury is instructed to 9 disregard it. 10 The defendant is free to renew its request that the 11 court take judicial notice of the government's prior statement 12 with respect to the May 26 date depending on subsequent 13 developments in the course of the trial. 14 MR. DEMBER: When you first spoke you referred to the 15 May 19 affirmation. It's the May 16. 16 THE COURT: May 16, okay. But that wouldn't be in the 17 instruction that I give to the jury. I will tell the jury that 18 on redirect examination the government asked Mr. Francisco a 19 question about the May 26, 2000 date on a cover letter, 20 Government Exhibit 7. I have stricken that question and answer 21 and the jury is instructed to disregard it. 22 Is that instruction satisfactory to the parties? 23 MR. TIGAR: Yes, your Honor, without waiving our other 24 contention that instruction is satisfactory. 25 THE COURT: And I am do that first thing. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2495 46SSSAT1 1 The next issue -- and I don't want to delay the jury. 2 There are several issues relating to Luxor but Luxor isn't 3 immediately before us, I take it, and Mr. Fitzgerald will be 4 the next witness? 5 MR. MORVILLO: Yes, your Honor, he is waiting outside. 6 THE COURT: All right. 7 We have more time. We are still without a van. 8 So the next issue is Mr. Fitzgerald's testimony. Now, 9 I have read the government letter. I will listen to the 10 parties if you wish. 11 Have the defendants seen the government letter? 12 MR. TIGAR: Yes, we have seen it, your Honor. I 13 should say that we will of course abide by the court's view on 14 these faxes. I don't work Saturdays and therefore I have told 15 government counsel that if there is a problem that needs my 16 personal attention, if it's an emergency, then of course I 17 will. But as an ordinary matter that is the day that we set 18 aside. 19 THE COURT: Well, then, you should have been pleased 20 by the faxes on Sunday. 21 MR. TIGAR: Yes, your Honor, I was overjoyed, your 22 Honor. They could hear it all the way to Manhasset. 23 The government's letter -- 24 THE COURT: And I am sorry to interrupt, and I will 25 take some guidance from the parties, but faxes both Saturday SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2496 46SSSAT1 1 and Sunday up until 9:15 on Sunday night is really not 2 reasonable, particularly when we don't sit Fridays. We end the 3 day on Thursday and the parties have the opportunity to make 4 submissions on Friday. 5 MR. TIGAR: Yes, your Honor. And I plead guilty to 6 having added to the toll of paperwork over the weekend. 7 With respect to the motion now before the court, much 8 of it is almost word for word of what appears at transcript 9 pages 2373 and 74 and therefore our first position is, well, 10 the court has ruled. And it's so based on a rather extensive 11 argument about the principles at stake. 12 Now, this is an instance in which Mr. Fitzgerald said, 13 or Mr. Fitzgerald says according to Mr. Morvillo, that had he 14 had a question about the propriety of the actions he was taking 15 and not taking, he would have gone up the line and pursued it. 16 The government also says that the material it wishes to bring 17 to the jury's attention through Mr. Fitzgerald is highly 18 relevant. Both of those are strong indicators that cross 19 examination of the hearsay declarants is of particular 20 importance. 21 Moreover, your Honor, to the extent that the hearsay 22 declarants were reporting on an investigation conducted 23 pursuant to authority conferred by law, that evidence is 24 excluded when offered by the government under 803 sub 8. 25 And, finally, your Honor, I got this late last night SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2497 46SSSAT1 1 so I couldn't do the research, but when I said Crawford, and I 2 think I did last time, these people were coming to Mr. 3 Fitzgerald to report to him in some official capacity and there 4 are some post-Crawford cases out there -- and should it become 5 relevant I will go look for them -- in which a report of an 6 incident to a law enforcement officer is said to involve that. 7 But we don't need to get there. It's enough, it seems to us, 8 that the structure of the hearsay rules that a mental state, a 9 statement about a mental state, of a mental condition, is not 10 admissible to prove the fact remembered or believed and 803(8) 11 solves the problem. That is our view. 12 THE COURT: All right. 13 By the way, the government says that they want to ask 14 three questions: First, did you have a meeting with the FBI on 15 or about June 19, 2000? 16 That is not reasonably objectionable on -- 17 MR. TIGAR: Asked and answered. 18 THE COURT:: Well, it was unclear to me when I reread 19 the transcript when I sustained an objection whether that was 20 included in the objection and certainly the date of the meeting 21 was not. It was a specific issue that I raised with the 22 government. And there is no testimony with respect do a date 23 at the meeting. But that is unobjectionable and it's not 24 hearsay. 25 Isn't that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2498 46SSSAT1 1 MR. TIGAR: Well, he had a meeting on June 19, 2000 at 2 the FBI, which is the question. Well, it must mean the FBI 3 just told him something. 4 THE COURT: No. Even the existence of a discussion is 5 not hearsay. 6 Second, the government wants to ask following that 7 meeting what, if any, decisions did you make with respect to 8 pursuing any affirmative steps in pursuing a criminal 9 investigation at that time? And he would say that "subject to 10 the agreement of the United States Attorney" he decided he 11 would not take any steps -- he would not take any investigative 12 steps. And, again, the transcript is somewhat unclear, but I 13 thought that I limited the testimony in exactly that way, did 14 you have a meeting and did you, after that meeting, do 15 something. 16 MR. TIGAR: That is right. 17 THE COURT: And that is not objectionable either. 18 MR. TIGAR: Except asked and answered. 19 THE COURT: Well, because it was unclear Mr. 20 Fitzgerald would be able to answer that question also. 21 We then turn to the third question, and that is why 22 Mr. Fitzgerald made that decision, and that is what is being 23 objected to. 24 MR. TIGAR: That is the thrust of our hearsay and 25 Sixth Amendment objection, yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2499 46SSSAT1 1 THE COURT: One juror is missing and has reported that 2 the juror is ill, so we have even more time, and I usually have 3 Mr. Fletcher call the juror to get a report on what the juror's 4 condition is. In this case I am perfectly prepared to have Mr. 5 Grate call the juror and find out what the juror's condition is 6 and then report back to us. 7 MR. RUHNKE: Agreed, your Honor. 8 MR. MORVILLO: We have no objection. 9 THE COURT: Mr. Fletcher, would you see that Mr. Grate 10 calls the juror. Thank you. 11 Okay. 12 MR. TIGAR: I answered your Honor's question. I 13 didn't know if there was anything further that your Honor 14 wanted to say. 15 THE COURT: No. All right. 16 Mr. Morvillo. 17 MR. MORVILLO: Let me start, your Honor, by saying 18 that with respect to the time of the fax last night, your 19 instinct was right with respect to Mr. Fitzgerald's 20 availability. I did not get a chance to speak with him until 21 yesterday afternoon about these issues. 22 With respect to the third question, we have set our 23 position forth in the letter. It's the government's position 24 that Mr. Fitzgerald's testimony is not hearsay because he is 25 not going to be testifying what other people told him. He is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2500 46SSSAT1 1 going to be testifying as to his own observations and his own 2 conclusions based on his review and attendance at the meeting 3 at the FBI. He made a decision based on everything that was 4 presented to him that it was warranted under the circumstances 5 to stand down from the criminal investigation temporarily. And 6 so he is not going to say I was told by the FBI to stop your 7 investigation. He is not going to say -- well, there are two 8 conversations. 9 THE COURT: Whoa, whoa, you are rearguing an issue 10 that I already ruled in your favor on and that there was really 11 no substantial objection to other than asked and answered. Did 12 he have a meeting? Did he do something? He decided not to 13 pursue any affirmative investigative steps subject to the 14 approval of the U.S. Attorney. And so when you say he is not 15 going to explain what he was told but, rather, I thought you 16 were saying what he did. What he did is admissible. He took 17 no further investigative steps or didn't pursue the criminal 18 investigation. 19 We have now moved on to the third question, which is 20 his explanation of why, which at this point in the letter goes 21 into the -- the why goes into an exploration of the validity of 22 or his assessment of the concerns that were expressed to him. 23 So we have gone beyond did he have a meeting and what did he do 24 as a result of that meeting. He did not pursue any 25 investigative steps. And the objection is to his, in effect, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2501 46SSSAT1 1 explaining the content of what he was told. 2 MR. MORVILLO: He will testify as to the effect of 3 what he was told, the effect that what he was told had on him. 4 He formed an opinion. He made a decision that the criminal 5 investigation should temporarily stand down based on what he 6 reviewed at the meeting. 7 THE COURT: But that is admissible, the decision he 8 made not to pursue the investigation. The issue is whether he 9 should be permitted at this point to testify about the analysis 10 of the considerations that he was given. And the objection is 11 made in particular to an analysis of national security 12 concerns, which is what is laid out in your letter. 13 MR. MORVILLO: But those concerns were concerns that 14 Mr. Fitzgerald had, not that someone told him. It's a 15 combination of both. He went to the meeting, learned about the 16 intelligence investigation and based on his own experience had 17 concerns with pursuing the criminal investigation. And so it's 18 his explanation as to what was in his mind after the meeting as 19 to why he decided that it was in the best interest to stand 20 down, not the fact that he did stand down but an exploration of 21 the reasons as to why he concluded it was necessary to stand 22 down. And so I don't think that his testimony as to his own 23 reasons constitutes hearsay and if the objection is relevance, 24 then I think we have addressed that in our letter. 25 Just so I am clear, your Honor, Mr. Fitzgerald was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2502 46SSSAT1 1 decision-maker. He was involved in the decision-making process 2 and if he had disagreed with the position that was being 3 advocated by the FBI, he would have come away from that meeting 4 and is prepared to testify that he would have taken additional 5 steps to convince the FBI or the Attorney General, if 6 necessary, that continuing the intelligence investigation was 7 not warranted, and so his testimony will not be that he was 8 given a directive and he was following it. He made an 9 independent assessment, an independent judgment, and made a 10 decision on his own. It was a decision that was in accord with 11 the opinions of others but it was his own independent 12 assessment. 13 THE COURT: All right. 14 MR. TIGAR: I am sorry, your Honor, what Mr. Morvillo 15 describes is almost exactly like a Second Circuit case that was 16 cited by the advisory committee and used as a basis for the 17 803(8). This circuit had already decided that status reports 18 offered to justify a delay in processing passport applications 19 were excludable when offered by the government. That is a case 20 cited in the Advisory Committee notes. That is why we relied 21 on 803(8). Of course, the Advisory Committee notes to 803(3) 22 point out that there is a potential here for overuse of that 23 mental state exception to just destroy the hearsay rule 24 utterly. 25 I don't want to take up the court's time but I wanted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2503 46SSSAT1 1 to note what the Advisory Committee notes point out as to that. 2 THE COURT: All right. 3 My decision remains the same with respect to the 4 discussion at this point, what has been framed as the 5 government's third question on the direct examination of Mr. 6 Fitzgerald. He would not be able to explain how taking into 7 account the substance of what he was told that affected what he 8 did because that is an indirect way of putting in the hearsay. 9 On the other hand, I made it clear in about five places at the 10 transcript when I discussed this issue earlier in substance 11 that if the defendants were to challenge why he didn't proceed 12 and why he had discussions with one of the defendants and 13 didn't explain everything that was going on, then it would 14 become fair rebuttal as to why he did or did not do that. But 15 I don't know if that is something. That certainly was the 16 thrust of the examination at the last hearing and, of course, 17 that is redirect. 18 There is, in fact, authority from the Court of Appeals 19 on the scope of redirect if an investigation is challenged. 20 But I can't decide anything on that until I hear what the cross 21 is and listen to any applications as to what any appropriate 22 redirect would be and what any limitations on redirect would 23 be. 24 At this point the first two questions are allowed and 25 the third is not without prejudice to any applications after SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2504 46SSSAT1 1 cross. 2 That leads to Luxor. 3 There are a couple of issues relating to Luxor. One 4 was the access to the name and address of the one witness and I 5 decided that and to the extent that there is a motion for 6 reconsideration, the motion for reconsideration is denied and I 7 thought that the government was forthcoming in playing the 8 defendants' request for the witness. 9 MR. TIGAR: Yes, your Honor. We asked Mr. Barkow to 10 call the witness and I can only assume that he did so and in 11 fact asked him to provide the witness with some information 12 that might make it more likely that he would talk to us. 13 THE COURT: And the representation in the letter is 14 that the voice mail was played for the witness, so that the 15 witness -- 16 MR. TIGAR: Was that one of those late Sunday -- 17 THE COURT: No, that was earlier. That was middle of 18 the day I think on Sunday. 19 Am I right? 20 MR. BARKOW: Yes, your Honor. It was, I think, 21 sometime between 3 and 4. 22 MR. TIGAR: I am sorry, I missed that and I thank Mr. 23 Barkow through the court. 24 THE COURT: Okay. You should obviously look at the 25 letter. Mr. Barkow represents what he did in terms of playing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2505 46SSSAT1 1 the voice mail and what he told the witness and obviously that 2 can always be examined on cross. 3 That then leads to some of the other sort of 4 applications with respect to Luxor. I received this morning a 5 letter dated June 28th from Mr. Tigar that proposed a limiting 6 instruction. 7 Do any of the other defendants have any comment on 8 that limiting instruction, and does the government? 9 MR. RUHNKE: I don't know if I have seen that letter 10 yet, your Honor. It may be among the pile that I picked up. I 11 would like to look at the proposal. 12 MR. PAUL: So would I, your Honor. 13 MR. RUHNKE: It sounds like maybe we are going to have 14 some time to come back to that issue. 15 MR. BARKOW: Your Honor, we do have a view on the 16 instruction. 17 With respect to the last sentence we think that that 18 sentence is overly broad both in light of the court's earlier 19 opinion as to the Luxor evidence and also as to what the 20 government is in fact offering the evidence to show. Mr. Tigar 21 proposes an instruction that the evidence is offered only as 22 background so that the jury can understand what the various 23 witnesses in the case were talking about when they discussed 24 the Luxor events and that is only one of the reasons why the 25 court ruled the evidence was admissible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2506 46SSSAT1 1 The court also ruled that it was admissible to show 2 and to place in context the defendants' actions in issuing or 3 in publicizing the withdrawal of the cease-fire. I can give 4 page citations, if the court wishes, to the court's earlier 5 decision. The court also ruled it was admissible to show 6 background context to the charged conspiracies and then also to 7 understand the conversations and also to determine or make 8 determinations regarding the state of mind and the intent of 9 the defendants. So we think that that sentence is too narrowly 10 described for the purpose for which the evidence is offered. 11 THE COURT: Yes, and Mr. Ruhnke's letter to me on this 12 issue says that the evidence is being admitted to show that the 13 IG was capable of violence and the defendants were aware of 14 that fact. 15 A distinction in the Luxor evidence from the other 16 evidence, such as Abu Sayyaf and the Cole, was the importance 17 of Luxor to a whole series of issues in the case and before I 18 got the letter my proposed instruction would have been -- and I 19 am happy to get any other suggestions -- none of the defendants 20 is alleged to have participated in the Luxor attack and none of 21 the defendants is charged with having participated in the Luxor 22 attack. 23 The evidence with respect to the Luxor attack is 24 introduced to help you understand the background and context of 25 the conspiracies charged in the indictment and for whatever SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2507 46SSSAT1 1 relevance you find it has for the other issues in this case. 2 And I thought that given the number of issues to which 3 the evidence is relevant the limiting instruction about the 4 defendants are not charged and highlighting background and 5 context and leaving open the other issue was the fairest way to 6 both sides. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2508 46SMSAT2 1 MR. TIGAR: We agree with that. Subject to our 2 earlier objections and evidentiary objections, we would agree 3 with your Honor's formulation. 4 MR. RUHNKE: We have perhaps an editorial addition. 5 In the letter I understood the Court's reasons for admitting 6 the evidence. I think something more needs to be said to the 7 jury than that the defendants are not charged with 8 participating in the attacks on Luxor. I think something needs 9 to be said that there is no allegation that the defendants 10 planned the Luxor attack, participated in it, had any advanced 11 knowledge that it was going to take place, or in any way 12 involved in these events, something much stronger than, they 13 did not participate in the Luxor attacks. 14 MR. BARKOW: Your Honor, we think that the Court's 15 proposed instruction is appropriate. I think that Mr. Ruhnke's 16 proposal starts to move toward what might be argument. There 17 is no allegation, but it is basically putting through the Court 18 an argument to the jury, and I think that can be done through 19 cross-examination or through argument. We are not going to 20 allege that the defendants perpetrated the Luxor attack. We 21 said that from the beginning. 22 I would just make an initial point that the last 23 phrase that Mr. Ruhnke proposed, that they had nothing to do 24 with the attacks or anything to do with, which echoes what 25 Mr. Tigar proposed, goes too far. That's a very vague SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2509 46SMSAT2 1 statement and had anything to -- 2 THE COURT: What about, I participated, planned or had 3 any advanced knowledge of the Luxor attack and none of the 4 defendants is charged with such actions? 5 MR. RUHNKE: That's acceptable to us, your Honor. 6 MR. TIGAR: Yes, your Honor. 7 MR. BARKOW: Your Honor, I'm sorry. The transcript 8 has stopped during that time, and I think I heard it. I think 9 the Court had said no participation, planning or advanced 10 knowledge. That's acceptable. 11 THE COURT: It would read: None of the defendants is 12 alleged to have participated, planned or had advanced knowledge 13 of the Luxor attack and none of the defendants is charged with 14 such acts. The evidence with respect to the Luxor attack is 15 introduced to help you understand the background and context of 16 the conspiracies charged in the indictment and for whatever 17 relevance you find it has for the other issues in this case. 18 MR. RUHNKE: Yes, your Honor, that's acceptable. 19 MR. BARKOW: Yes, your Honor. 20 MR. RUHNKE: I want to note Mr. Grate is here. I was 21 wondering if you wanted to hear his report. 22 THE COURT: Sure. 23 Can I talk to the lawyers. 24 (At the side bar) 25 THE COURT: I'm doing this at the side bar just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2510 46SMSAT2 1 because it concerns an issue of the juror's privacy. 2 Juror No. 217 in chair No. 3 reported to Mr. Grate 3 that she was having abdominal pain. She had had an operation 4 nine months ago and she is going to try to see a doctor today. 5 I told Mr. Grate that he should call juror 217 and ask that 6 juror 217 advise us later today as to what juror 217's physical 7 condition is and whether she is able to proceed tomorrow, And 8 we will then notify the rest of the jurors. 9 MR. MORVILLO: The government think that's 10 appropriate, your Honor. 11 MR. RUHNKE: Yes, your Honor. 12 THE COURT: I could let all of you know or I could 13 bring you all back in at the end of the day as soon as we hear 14 from the juror, or we could let you know by fax. 15 MR. RUHNKE: I think fax would be preferable. It is 16 unanimous, fax. 17 MR. TIGAR: Your Honor, Mr. Barkow did send those 18 Redwelds to the Court. And it might be useful for us to have a 19 couple of minutes on each side to describe where we have been 20 in the course of the discussions to alert the Court, now that 21 we are not going to waste jury time by doing it. I would ask 22 your Honor to add that to the agenda. 23 THE COURT: Absolutely. 24 The marshals made a request, I believe, to Mr. Grate 25 that I should instruct the jurors not to talk to the marshals. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2511 46SMSAT2 1 The jurors are trying to be friendly with the marshals and the 2 marshals, following my instructions, do not want to talk to 3 jurors and do not want to be friendly with jurors. And so I 4 will give an appropriate instruction to the jurors to that 5 effect. 6 MR. MORVILLO: Perhaps, your Honor, if you could tell 7 the jurors that you've instructed the marshals not to talk to 8 them and that they are not being rude. 9 MR. RUHNKE: You might analogize it to what you said 10 about the attorneys and the parties and running into them 11 outside of the courtroom. 12 THE COURT: One van hadn't arrived yet. 13 Mr. Fletcher says sometimes the jurors will want to 14 get in touch with Mr. Fletcher for administrative reasons and 15 he wants to know if the marshals can accept a juror request to 16 speak to Mr. Fletcher. And the answer to that is yes. 17 Mr. Grate, will you talk to juror 217? 18 MR. GRATE: Certainly. 19 THE COURT: And ask juror 217 to get back to you after 20 talking to the doctor and with an explanation about what the 21 condition is and whether the juror is able to proceed tomorrow. 22 MR. GRATE: Very good. 23 MR. STERN: We are going to wait for the van to get 24 here and tell them to immediately go home? 25 THE COURT: Yes. What else -- is there a way to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2512 46SMSAT2 1 contact -- 2 MR. RUHNKE: Isn't there a radio in the van -- 3 THE COURT: I really have to talk to the jurors. 4 Mr. Fletcher reminds me that the vans, after they drop 5 off, go home, so we will have to let the marshals know right 6 away to arrange for vans to take them back. We will get the 7 vans here as quickly as we can. 8 MR. MORVILLO: Your Honor, can I have a moment to tell 9 Mr. Fitzgerald he is free to go for the day? 10 THE COURT: Yes. 11 Should we take five minutes? 12 MR. MORVILLO: That would be terrific. 13 (Recess) 14 THE COURT: I am informed that all the jurors are here 15 with the exception of the one juror who has fallen ill. I will 16 great until Mr. Grate reports to us on the remaining juror. 17 Mr. Fletcher, could you make sure that Mr. Grate comes 18 back and tells us. 19 We were up to the remainder of the correspondence on 20 Luxor. We discussed the limiting instruction and the home 21 address and telephone number for the witness. 22 Then the parties had raised issues with respect to 23 limiting the testimony of the eyewitness to the Luxor event. 24 And there was a suggestion by the defendants to stipulate to 25 the testimony of the witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2513 46SMSAT2 1 I've read all of the correspondence. Do the parties 2 want to be heard further on this? 3 MR. RUHNKE: Since you have read all the 4 correspondence, I don't want to be heard further. 5 THE COURT: The government? 6 MR. BARKOW: Not unless the Court has questions, your 7 Honor. 8 THE COURT: No. 9 With respect to these issues of the limitations on the 10 testimony of the eyewitness, the government agrees that the 11 witness will not testify to the impact on the witness of the 12 events. He saw and heard, including any posttraumatic stress 13 effects. The Court agrees and the witness should be instructed 14 not to testify about that. And, second, the defendant suggests 15 that the witness should be limited to describing what he saw. 16 The gist of the government's response is that the 17 witness will not overemphasize the details of the injuries 18 suffered or overemphasize any testimony that might be viewed as 19 inappropriately playing on the jury's emotions. The eyewitness 20 actually observed few of the killings and his testimony 21 apparently comes from what he saw at the beginning of the 22 incident, what he heard during the incident from his hiding 23 place, and what he observed after the incident. 24 This necessarily includes some details of what he 25 heard during the incident and some description of the bodies he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2514 46SMSAT2 1 saw thereafter. While graphic, given the significance of the 2 Luxor events, for all of the reasons that have been detailed in 3 the Court's prior opinion, the probative value of the evidence 4 is not substantially outweighed by any danger of unfair 5 prejudice. 6 See, generally, Old Chief v. United States, 519 U.S. 7 182, 186-89 (1997); United States v. Velazquez, 246, F.3d, 204, 8 211 (2d Cir. 2001); United States v. Salameh, 152 F.3d 88, 9 122-23 (2d Cir. 1998). 10 The Court cannot say that the proffer by the 11 government is unreasonable or that the witness should be 12 limited, as the defendant suggests, that testifying he observed 13 people killed and wounded and excluded the details of those 14 killings and the nature of the wounds he observed." 15 The defendants also suggest that the parties stipulate 16 to the testimony of this witness. The government has declined 17 that offer. It should be noted that this offer is not even a 18 proposed stipulation to the facts of what happened at Luxor, 19 but only to the proposed testimony of the witness. In any 20 event, this is not the type of stipulation that would be a 21 substitute for the testimony of the witness. See, generally, 22 old chief, 186-89. This is not the type of stipulation that 23 the government would be required to accept and is not a 24 reasonable substitute for the testimony. 25 I think that that deals with all of the issues with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2515 46SMSAT2 1 respect to Luxor. 2 MR. RUHNKE: Your Honor, can I raise one particular 3 point on the Luxor testimony? 4 THE COURT: Sure. 5 MR. RUHNKE: The obvious distinction among the cases 6 is that none of the defendants are charged with the conduct. I 7 understand your Honor's ruling on that. We are past that. 8 However, in terms of unfairly and improperly playing on the 9 jurors' emotions, the proposed testimony that the witness heard 10 someone pleading with one of the attackers to kill him instead 11 of his wife strikes me as exactly the kind of un-- the 12 probative value of it is virtually nil to the overall scheme of 13 what the government is attempting to prove. 14 There is obviously no evidence that any of the 15 defendants here knew of that event or that particular detail of 16 the attack, and it does seem likely to strike emotion. It is 17 not relevant to anything that bears on Luxor. Sort of a 18 brutal, terrible event. And the witness is certainly, given 19 your Honor's ruling, going to be able to describe how terrible 20 it was. And it just strikes me -- and I propose to the Court 21 that that is over the top and ought to be excluded under 403. 22 THE COURT: Government? 23 MR. BARKOW: Your Honor, several points. First, as 24 the Court just observed, this witness did not see most of the 25 killings that occurred at Luxor. Instead, he heard them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2516 46SMSAT2 1 because he was hiding in order to save his life. Therefore, 2 the fact that he heard them is what establishes the scope 3 because that's how he knows people were being killed. 4 As I had said in the letter, we intend not to go 5 through and catalog the countless pleas to save one's life that 6 this witness heard. And we think it is appropriate, given 7 the -- how horrible the Luxor incident is to have some evidence 8 that indicates what was actually happening. That is what was 9 happening there, is that people were being systematically 10 killed. So the testimony is necessarily going to have 11 something that is terrible and powerful. 12 And, finally, I just observed that Mr. Morvillo did in 13 his opening statement mention that specific fact and there was 14 no objection during or after, and so we think that the Court 15 has made the 403 ruling. That fact was in the proffer and we 16 think it is an appropriate ruling, and we don't intend, as we 17 said, to overemphasize and extend, which certainly with this 18 witness I can tell the Court, this witness could testify for 19 quite a long time about details and we don't intend to do that. 20 But some detail is necessary. Under Old Chief and the other 21 cases it's appropriate, given what actually happened at Luxor, 22 for the jury to be able to understand what actually happened. 23 MR. RUHNKE: The only reply I would have is, the fact 24 that Mr. Morvillo opened on, it is not a reason to admit 25 inadmissible evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2517 46SMSAT2 1 THE COURT: The issue in my mind is whether there is a 2 reasonable way of conveying what happened in the sufficient 3 evidentiary detail based upon where the witness was, what the 4 witness heard without that particular comment; for example, 5 that the witness heard, as I take it the proffer is, pleas by 6 people as the witness heard what was going on, pleas to 7 whatever the general description of the pleas were without that 8 specific comment. And that should be able to be done. 9 MR. BARKOW: Your Honor, I was hoping to be heard on I 10 think what the Court just ruled upon -- 11 THE COURT: You can do that, yes, but let me talk to 12 you all. 13 (Pages 2518-2519 SEALED by order of the Court) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2520 46SMSAT2 1 (In open court) 2 THE COURT: Can we bring in the jury? Is everyone 3 ready? 4 MR. MORVILLO: Yes, your Honor. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2521 46SSSAT3 1 (In open court; jury present) 2 THE COURT: Please be seated all. 3 Good morning, ladies and gentlemen. It's good to see 4 you all. 5 As you see, Juror 217 in seat number 3 is not here, 6 and Juror 217 is not feeling well today and I am sure we all 7 wish Juror 217 well. We can't proceed today in the absence of 8 all of you and what we will do is we will let you know about 9 whether we are proceeding tomorrow. 10 I assume, and you should assume, that we will be 11 proceeding tomorrow but you should check in with Mr. Grate at 12 about from 5 to 7 o'clock today if he hasn't called you 13 directly. But he will make sure that either you calling him or 14 he calling you, he has contacted all of you by the end of the 15 day today as to proceeding tomorrow. And when you go to the 16 jury room Mr. Grate will give you his cell phone number so that 17 you can be in touch with him. 18 Let me raise one other issue with you. 19 I mentioned in my preliminary instructions to you that 20 you should make sure not to talk to any of the court personnel, 21 the marshals, about the substance of the case or anything to do 22 with it, and with respect to the marshals, let me just 23 underline that. 24 You really should treat the marshals as you would any 25 of the parties or counsel or potential witnesses or witnesses. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2522 46SSSAT3 1 You really just shouldn't talk to them and I have told them not 2 to talk to you. So they are not being impolite or discourteous 3 by not engaging you in conversation. They are simply following 4 my instructions. If there is something again in the unlikely 5 event that you had to bring to my attention, you can tell the 6 marshals to let Mr. Fletcher know and in that way Mr. Fletcher 7 will bring something to my attention. 8 We go through all of this in order to, as I have 9 explained, make sure that there are no conversations about the 10 case or anything to do with it with anyone, including the court 11 or court staff, lawyers or parties, because it's so important 12 that the jurors decide the case based solely on the evidence or 13 lack of evidence received in court and that they not talk about 14 the case at all. 15 So with that we will break for the day and we will try 16 to get your transportation as soon as we can. It's always 17 possible that there is a delay in our being able to get you 18 transportation, so I appreciate your patience. 19 Please remember my continuing instructions not to talk 20 about the case. Remember not to look at or listen to anything 21 to do with the case. Always remember to keep an open mind 22 until you have heard all of the evidence, I have instructed you 23 on the law, and you have gone to the jury room to begin your 24 deliberations. 25 Have a good day and I look forward to seeing you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2523 46SSSAT3 1 tomorrow. 2 All rise please. 3 Follow Mr. Fletcher to the jury room. 4 (Jury left the courtroom) 5 THE COURT: Please be seated all. 6 THE COURT: Yes, Mr. Barkow. 7 MR. BARKOW: Your Honor, I am not sure, it sounds like 8 the court either is leaning toward or has ruled -- and I am not 9 sure if we are all the way there yet -- with respect to that 10 statement by the witness. I would like to be heard briefly 11 about that. 12 The court has already decided to give what I think is 13 fairly characterized as a powerful limiting instruction with 14 respect to this evidence, to tell the jurors that none of the 15 defendants is alleged to have participated, planned or had 16 advance knowledge of the attack and that none is charged with 17 the attack. That is a powerful instruction that I think 18 clearly and unequivocally points out to this jury that none of 19 these defendants were there, knew about it in advance, had 20 anything to do with its perpetration. 21 The Supreme Court has repeatedly said, for example, in 22 Richardson v. March, that jurors are presumed to follow their 23 instructions and with a powerful instruction like that, I think 24 we are safe to conclude that the jury will not use this 25 powerful evidence in an inappropriate way. And that is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2524 46SSSAT3 1 significant factor in the Rule 403 balancing. 2 This evidence is undeniably powerful. That statement 3 is undeniably a powerful piece of evidence and given the 4 allegation that these defendants by their conduct could have 5 brought about a similar incident, we do not deny the power of 6 that evidence and, indeed, the prejudicial effect of that 7 evidence, but as the Supreme Court and every court makes clear, 8 the focus here is on the danger of unfair prejudice and with 9 the court's intended instruction, we don't believe that the 10 danger of unfair prejudice substantially outweighs the 11 probative value. 12 This is a terrible incident, the Luxor incident, there 13 is no doubt about it. And it is inherent when someone 14 describes a terrible incident that there will be some terrible 15 facts. 16 The cases that are set forth in my letter and that the 17 court relied upon, for example, Salameh and Velazquez, involved 18 graphic evidence, I submit more graphic evidence than this, 19 photographs of injured people. We don't intend to do things 20 like that. And so, therefore, we think that this evidence, and 21 that statement, as a limited statement within the context of 22 all the other statements this witness could testify to, is 23 appropriate and satisfies Rule 403. 24 And I want to make one additional point with the 25 recognition that what is said in opening statement is not an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2525 46SSSAT3 1 argument for admissibility, but I think that this point is 2 appropriately considered also to inform the court's decision 3 here. And I want to qualify this also by making clear, I don't 4 intend this as an accusation against Mr. Ruhnke in any way, but 5 the defendants have known for a long time that the government 6 intended, and sought, to introduce evidence about the Luxor 7 incident and have known in general terms what that incident 8 was. 9 Granted, they did not have the 3500 material until 10 Friday and they did not know that statement. But certainly it 11 is obvious that an incident like the Luxor incident might 12 include very compelling proof. And nonetheless there -- and 13 there is no obligation to, but there was no in limine motion. 14 And now, and this is the point I wanted to get to and I wanted 15 to start by saying I am not accusing Mr. Ruhnke of sandbagging 16 or anything like that, but the point is at this point we are in 17 a position where Mr. Morvillo has in his opening statement made 18 a commitment to the jury to prove certain facts, among them 19 that statement, and also among them the intelligence 20 investigation point. 21 And at this point we may not be able to prove either 22 one of them. And although that might not be an argument for 23 admissibility, the fact that we have made those commitments and 24 that there were no efforts beforehand to stop us from making 25 those commitments, because we think this statement satisfies SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2526 46SSSAT3 1 Rule 403, we think it puts the government in a position where, 2 for example the jury may question the credibility of the 3 government, of Mr. Morvillo in particular, at the beginning of 4 a six-month trial where that -- as all lawyers have -- 5 credibility before the jury is extremely important. 6 And we think that this particular statement as 7 sanitized already, because we don't intend to trot all the 8 statements before the jury, we think is an admissible and 9 relevant fact. It satisfies Rule 403, especially in light of 10 the powerful instruction the court intends to give, and we 11 think it is important for the credibility of government 12 counsel, and of Mr. Morvillo in particular, to be able to back 13 up and prove the specific evidence that was promised to the 14 jury. 15 It's a powerful fact and maybe it didn't register to 16 the jury in the opening statement but perhaps at least one of 17 the jurors remembers that fact and if they make it through the 18 entire case without ever hearing it we think it undermines the 19 credibility of government counsel. But our predominant point 20 is under the cases -- Salameh, Velazquez, Gartmon, Yousef, Old 21 Chief, and Richardson -- the jury will follow its instruction 22 as to what the purpose is of this evidence, what its limited 23 purpose is, what the appropriate limited use is, will follow 24 that instruction and that this evidence satisfies Rule 403 25 balancing because although it's prejudicial there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2527 46SSSAT3 1 protection against prejudicial and powerful evidence, it's 2 unfairly prejudicial evidence. 3 MR. RUHNKE: Your Honor, do you want a reply? If not, 4 I will not give one. 5 THE COURT: No. 6 It really is possible to resolve this issue in a way 7 that is consistent with 403 and is completely fair. 403 of 8 course involves a balancing analysis, which I have gone through 9 in great detail now on several occasions with respect to this 10 evidence. 11 And there was one specific issue raised with respect 12 to one comment, and I said that there is a way of resolving the 13 403 issue with respect to that statement by referring to it in 14 sufficient generality, along with what would be the testimony 15 of other pleas, so that it accomplishes the very careful 403 16 balancing that I have gone through with respect to the 17 relevance of the evidence and any claims of unfair prejudice. 18 The claims of unfair prejudice go to issues such as 19 emotion and unfair pleas to emotion. The evidence is relevant. 20 It is graphic but the fact that it's graphic in terms of 21 details doesn't detract from its relevance or make it unfairly 22 prejudicial. But in making that determination there are 23 questions about what limits could reasonably be placed on it to 24 assure that there is an appropriate balancing as 403 requires. 25 Now, what I said was that the testimony could be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2528 46SSSAT3 1 referred to somewhat more generically than the specific words 2 of a specific plea by a person offering up that person's life 3 in return for another. 4 The government proffer was that this was one of many 5 pleas that were heard by this witness and apparently the 6 proffer was that other pleas would be referred to generically; 7 that this witness heard a considerable amount over the lengthy 8 period of time that the attack occurred. And I am confident 9 that consistent with the opening statement and consistent with 10 the balancing that there is a reasonable description of the 11 pleas that the witness heard which reflected what was going on 12 without the precise words of that particular plea. And that, 13 first of all, no reasonable juror would say, well, I didn't 14 hear the precise words and no reasonable defense counsel would 15 argue conceivably, you know, they promised that you would hear 16 the specific words of one of the pleas of the victims at Luxor 17 and you didn't hear those specific words. This is not real. 18 And it does not detract from the relevance and power of the 19 evidence to describe that particular comment as to which there 20 is a specific 403 objection which was not raised with me before 21 in a somewhat more generic sense. 22 All right. 23 Next, the parties wanted me to address the issues of 24 the two redwells. 25 MR. BARKOW: Before we move on can I inform the court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2529 46SSSAT3 1 of one fact that I think I should? 2 THE COURT: Sure. 3 MR. BARKOW: With respect to the Luxor witness I don't 4 think this matters, but he has made me aware of the fact that 5 about 5 or 6 years ago he appeared before your Honor in another 6 case. I think he said once in a hearing, and I thought the 7 court should know that. 8 THE COURT: Okay, thank you. I have no recollection 9 of the name. 10 MR. BARKOW: I think he was one of many attorneys in 11 that hearing. 12 THE COURT: He was a lawyer. I thought you meant he 13 was a witness. 14 MR. BARKOW: No, as a lawyer. 15 THE COURT: Oh, I don't recall the person and I don't 16 recall the matter, so it doesn't affect anything that I do. 17 Thank you. 18 The two redwells. 19 MR. FALLICK: Your Honor, I am not quite sure we know 20 what you have in those two redwells. 21 Are those the exhibits that you talked about? 22 MR. BARKOW: What I provided to the court were with 23 the cover letter and the charts, the attachments to the letter, 24 and also the exhibits. Since we have already produced the 25 exhibits to the defendants we did not include the exhibits in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2530 46SSSAT3 1 the copies we sent to them. 2 THE COURT: Are you sure you want to raise these 3 issues with me now rather than making a good faith effort to 4 try to resolve them among yourself first? 5 MR. BARKOW: I think that is up to Mr. Tigar, your 6 Honor. 7 MR. TIGAR: We are happy to make a further effort with 8 respect to that. I have been discussing these exhibits on and 9 off with Mr. Barkow for about ten days, your Honor. We have 10 provided each other with summaries of the exhibits, and so on. 11 But we are happy to go back and start again -- or not "start 12 again". That is unfair to Mr. Barkow and it's unfair to the 13 process and I withdraw it. 14 We will be happy to continue our discussions with Mr. 15 Barkow in an effort to see how much of this we can resolve. 16 Should we be unable to do so, I suggest the most efficient way 17 to present our contentions to the court would be to have one of 18 these tabular presentations. It has an exhibit number. This 19 is a summary. Very briefly these are the grounds of our 20 objection, and we will just list them with respect to any 21 exhibits. 22 THE COURT: I thought that was included in the 23 submission to me. 24 MR. TIGAR: Yes. It is, your Honor. I was just 25 attempting to find out if that is an efficient way to present SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2531 46SSSAT3 1 this matter to your Honor in the event disagreements remain. 2 MR. FALLICK: Your Honor, since many of these exhibits 3 are being offered against Mr. Sattar as to his state of mind, 4 we are sending a letter to the court today proposing a limiting 5 instruction similar to the one the court gave last week on Mr. 6 Fitzgerald's testimony about newspaper articles. Many of these 7 exhibits are newspaper articles, magazine articles, books, not 8 being offered for the truth of the contents of these articles 9 but just for Mr. Sattar's state of mind and we asked the court 10 at various times to give a limiting instruction to the jury. 11 MR. TIGAR: Your Honor, it's true that with respect to 12 many of these a state-of-mind instruction will do it. There 13 are some, however -- for example, there are three articles 14 reporting on the jury's verdict in Sheikh Abdel Rahman's case. 15 We have negotiated a stipulation that tells the jurors some 16 very specific facts about that but not other facts. As to 17 those we had a doubt that a state-of-mind instruction would be 18 sufficient. That will be the character of any objections that 19 might remain. I am not trying to argue it in advance. I am 20 just letting the court know that that would be our position. I 21 think defense counsel will meet after court today and see if we 22 can -- maybe they can hammer some sense as to my position. 23 MR. BARKOW: The only thing I point out, and I don't 24 mean to drag the court into what is supposed to be a 25 negotiation, but we have talked about it on several occasions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2532 46SSSAT3 1 over ten days and from where I sit the defendants' objections, 2 Ms. Stewart's objections, haven't changed at all. And so 3 whatever the content was of the conversations in between, it 4 was essentially a waste of time because nothing changed and 5 most of the evidence is being offered solely against 6 Mr. Sattar. 7 Most of it is being offered for limited purposes and I 8 don't think that much, if any, further discussion between Mr. 9 Tigar and I is going to be fruitful. I am willing to do it but 10 what I am concerned about is we are going to get to the point 11 where we want to begin publishing some of these exhibits and 12 the admissibility and what portions is going to be up in the 13 air. And so that is why I brought it to the court's attention 14 today. 15 THE COURT: I am always prepared to decide things when 16 they have to be decided and so if decisions are needed on these 17 exhibits I will make the decisions when they have to be made in 18 terms of admissibility. 19 There were a substantial amount of transcripts that 20 have already been admitted that have not been presented to the 21 jury and which I would have thought would go before this 22 evidence. 23 MR. BARKOW: Are you referring, your Honor, to the 24 transcripts of Sheikh Abdel Rahman's speeches? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2533 46SSSAT3 1 MR. BARKOW: Yes. We are not planning -- and I hope I 2 made it clear, we are not planning on getting into this 3 evidence all immediately and so I identified I think two, maybe 4 three exhibits we would like to do sooner and then the rest, 5 quite honestly, we see as fitting in over the course of the 6 rest of the case each time with appropriate limiting 7 instructions. But we don't want to do all this at once and we 8 don't need to do it all at once and so the court wouldn't need 9 to rule on it all at once. Some of the exhibits are shorter. 10 Some of them are a page or two, so it would be much easier for 11 the court to review and some of the longer ones, for example, 12 trial transcripts, we have designated individual pages already 13 that we seek to offer. With respect to some of the other 14 longer exhibits, for example, transcripts of speeches, if the 15 speech would have already been read to the jury because it was 16 admitted in the 200 series of exhibits, the one we just started 17 reading last week, we wouldn't propose to read it again. We 18 would just propose to somehow establish -- and we can work it 19 out -- that it's the same as what was already read to the jury. 20 With respect to others that are transcripts or tapes 21 of speeches by Abdel Rahman, those we would like to present to 22 the jury and with an appropriate limiting instruction that they 23 would be offered for the purposes and against the defendants as 24 set forth in the chart. So some of these things certainly can 25 be deferred and some of them aren't even presented to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2534 46SSSAT3 1 court; for example, some of them list to be determined as what 2 we would like to publish. Most of them do actually identify 3 what we want to but some are left open either because we 4 haven't had a chance to discuss it and maybe reach agreement or 5 because we haven't received a final translation. 6 So I think when the court looks at the chart if it 7 says entire exhibit or lists particular pages, those are 8 relatively discrete. I gave the court the entirety of the 9 exhibits because, as I said in the letter, we thought they 10 would need to retain their physical integrity because that is 11 how they were found. But I think many of these are actually 12 quite short and the court will see that when the court has the 13 time to review them. 14 THE COURT: You can send me a fax this afternoon and 15 let me know if I should start reviewing them and I will start 16 reviewing them. It's just that I recall that the request to 17 review all of the Yousry notebooks eventually proved to be 18 unnecessary and some of the defense objections with respect to 19 the actual admissibility of a whole series of exhibits from the 20 Abdel Rahman trial also disappeared -- as the government or as 21 Ms. Baker said -- to a revised position. So there is always 22 the possibility that there could be a revised position and I 23 simply ask -- and similarly, when the defense asked me to begin 24 to review a whole series of exhibits which you, Mr. Barkow, 25 said that you wanted to have a dialogue on, the dialogue ended SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2535 46SSSAT3 1 up proving to be fruitful and all those objections disappeared 2 in the light of where things stood. 3 So obviously if the parties can't agree and there is a 4 dispute, I will resolve it and I will do it as promptly as you 5 need in terms of where things fit in the course of the case. 6 So give me a fax this afternoon and tell me to start 7 doing it if I have to. 8 Anything else on that subject? 9 MS. BAKER: Your Honor, on a related note, we were 10 given this morning a letter from Mr. Tigar, a copy of a letter 11 addressed to your Honor, which moves to strike the government 12 exhibits in the 200 series that have not yet been read to the 13 jury. So we are a little concerned that even where we thought 14 agreement had ultimately been reached after lack of agreement, 15 now we are essentially back to having lack of agreement again. 16 The government opposes the motion to strike. Mr. 17 Tigar seems to be basing his motion on Rule 403 that the 18 exhibits are cumulative, et cetera. The government 19 respectfully submits that the fact that Abdel Rahman expressed 20 certain views repeatedly over a period of time is relevant to 21 evidence that the jury needs to understand because otherwise it 22 might seem to them that the couple of speeches with which they 23 have already been presented, the ones that have been read to 24 them, were atypical, isolated incidents that did not truly 25 represent Abdel Rahman's views, whereas the government submits SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2536 46SSSAT3 1 that those speeches were typical of his views that he expressed 2 repeatedly. And the number of exhibits overall that the 3 government had offered, which the defense first objected to and 4 then agreed to and is now objecting to again, is not a very 5 large number. Granted the speeches are lengthy and are 6 somewhat difficult at times to listen to. That is Abdel 7 Rahman's speaking style. 8 But we submit in the context of this case, and with 9 respect to what the government needs to prove in this case 10 regarding Abdel Rahman's views and his state of mind as a 11 co-conspirator in a conspiracy to kill or kidnap, that that 12 evidence is relevant, is not cumulative, and should not be 13 stricken. 14 Also, your Honor, as I am sure you are aware, not all 15 of those exhibits are speeches. Some of them were intercepted 16 telephone calls on Abdel Rahman's phone. 17 THE COURT: All right. 18 Mr. Tigar. 19 MR. TIGAR: I made my motion, your Honor, because I 20 observed the jurors listening to these very lengthy readings 21 and it seemed to me, your Honor, that based on these readings 22 that although it had not been apparent to me before, that we 23 were into the unnecessarily cumulative range here. What Judge 24 Warren Wilson said is the boredom factor, which he identifies 25 as the implicit part of Rule 403. I don't particularly knowb SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2537 46SSSAT3 1 ut, as I say, I watched it. I listened to it, and it seems to 2 me that the points that the government wanted to make had 3 fairly been made. That is why I wrote the letter. And that is 4 all I intend to say about it. 403 determinations lie well 5 within the informed discretion of the court and I am required 6 to make objections that I think are meritorious, and I made 7 one. 8 THE COURT: Okay. 9 MS. BAKER: Your Honor, as I am sure you recall, the 10 government sought to present those exhibits to the jury in 11 excerpted fashion rather than reading them in their entirety 12 and it was in the face of defense objections under the rule of 13 completeness that we resorted to what we perceived as the 14 necessity of reading them in their entirety. 15 THE COURT: Okay. 16 The objection is denied. 17 The evidence is not unnecessarily cumulative at this 18 point, a waste of time or unfairly prejudicial by reason of its 19 repetitive character, which is the basis for the objection. In 20 fact, the speeches are, so far, fairly long and the portion 21 that is directly relevant to the issues in this case are fairly 22 narrow and I appreciate the defense desire to have the entire 23 speech read to show that the individual portion that really is 24 directly relevant to the case, because it deals with issues 25 such as jihad and the meaning of jihad, is a fairly small SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2538 46SSSAT3 1 portion of some of those speeches. But the rest of the speech 2 is not in any way unfairly prejudicial to the defendants and 3 the defendants wish the rest of the speech to be read in order 4 to place those portions in context, and indeed the 5 representation to me is that that is the way in which they were 6 read at the trial of Sheikh Abdel Rahman. So at this point I 7 have no applications to attempt to go through these speeches 8 and deal with cross designations or the like and I am left with 9 the speeches themselves of which so far there have been only 10 two. 11 There is no reasonable argument that these are 12 cumulative, a waste of time and unfairly prejudicial. 13 Moreover, the defense notes as another basis for the 14 motion that "we have already stipulated as to his offenses of 15 conviction and the jury will be hearing other evidence from his 16 trial in addition to the sermons." 17 But, of course, the offense of conviction was not 18 received for the truth of the offenses and the guilt of Abdel 19 Rahman, which explicitly explained to the jury is not binding 20 on the defendants, and when I decided that motion by the 21 defendants the government said they may have to admit more 22 evidence because the defendants do not agree to that and the 23 defendants are obviously under absolutely no obligation to 24 agree to that. I have made that very clear and I went out of 25 my way to give an additional instruction with respect to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2539 46SSSAT3 1 limited use of the conviction, that the defendants are not 2 bound by that. 3 But, then, it's not a reasonable argument to say that 4 there is a stipulation with respect to the offense of 5 conviction as a reason not to introduce evidence from the trial 6 of Sheikh Abdel Rahman. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2540 46SMSAT4 1 MR. TIGAR: If your Honor please, what the Court said 2 about the judgment of conviction the Court has accurately 3 described. The fact is that a person suspected of engaging in 4 certain kinds of activities, under the law, as declared by the 5 Supreme Court of the United States, could be held under SAMs 6 convictions. It therefore is not relevant to the fact of the 7 SAMs, the necessity of the SAMs to try to prove that Sheikh 8 Abdul Rahman was guilty beyond a reasonable doubt of certain 9 offenses. That would not be a relevance or interfere with a 10 fair 403 analysis. 11 The government in its March 21, 2003 motions, when the 12 issue was live, indeed took the position that Turner had pro 13 tanto overruled Procunier v. Martinez with respect to that very 14 issue. I don't regard myself as arguing an inconsistent 15 position here by trying to interpose objections, and I know 16 your Honor wasn't anticipating evidentiary rulings yesterday to 17 come, but I didn't wish by my silence to seem to consent to the 18 government's theory of relevance. 19 THE COURT: Sufficient unto the day, I decided as they 20 arise, for the reasons that I explained, as they arise, and 21 I've denied this motion for the reasons that I have explained. 22 Is there anything else? 23 I will send you a fax this afternoon and you will send 24 me a fax. 25 Yes, Ms. Baker. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2541 46SMSAT4 1 MS. BAKER: Your Honor, I served this morning an 2 additional motion and cover letter on the defendants. It 3 relates to the testimony of an upcoming government witness, so 4 I wanted to hand out a courtesy copy of the motion and the 5 cover letter to the Court. 6 THE COURT: Okay. 7 Anything else for me? 8 We will let you know by fax this afternoon about the 9 juror. 10 Thank you, all. 11 (Adjourned to Tuesday, June 29, 2004 at 9:15 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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