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/

        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 28, 2004
       11                                         9:30 a.m.
       12    Before:
       13                          HON. JOHN G. KOELTL
       14                                            District Judge
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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
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        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
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        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
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        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
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        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.
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        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
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        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
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        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?
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        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.
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        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
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        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,
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        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
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        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
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        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
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        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
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        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.
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        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
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        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)
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        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
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        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
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        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.
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        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
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        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.
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        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
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        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
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        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
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        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.
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        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)
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        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)
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        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.
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        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
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        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
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        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
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        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
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        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
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        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
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        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
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        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
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        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
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        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
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        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.
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        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
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        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
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        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
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        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
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        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
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        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
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        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)
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        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.
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        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.)
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