30 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 15 of the proceeding and Day 6 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/
2771 46USSAT1 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 30, 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 2772 46USSAT1 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 2773 46USSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Good morning all, please be seated. 4 I will discuss the documents with you at the lunch 5 hour or begin to discuss documents with you at the lunch hour 6 in view -- I will discuss the documents with you at the lunch 7 hour in view of the time that we are starting. The immediate 8 question is the issue of the CIPA. The resolution appears to 9 me to be reasonably clear. I obviously can't direct the 10 parties to stipulate to something, but the objection to the 11 last question is withdrawn, so the witness can answer the last 12 question. 13 There is no waiver of any CIPA protection because I 14 don't hear that there is anything that goes beyond what is 15 already in the public record in terms of what I have already 16 done. And there is no objection to my giving an instruction, 17 but I think I would give the instruction in my final 18 instructions because there is no real, as I see it, issue at 19 this point to be instructed on. 20 There is an instruction in Judge Sand's treatise with 21 respect to wiretaps and that could be adapted to the 22 surveillance in this case. And unless something develops in 23 the course of the case to suggest that I should do something 24 differently or more immediately, it appears to me that that 25 would be sufficient. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2774 46USSAT1 1 So at this point when the jury comes out and the 2 witness is on the stand I would say there was a question 3 pending, there was an objection, the objection is withdrawn, 4 the witness may answer the question. 5 MR. TIGAR: That certainly is acceptable to me, your 6 Honor. That is what I had agreed to do. I wish, however, to 7 make clear that if the witness has not seen the order 8 authorizing surveillance, if she hasn't seen it, then she is 9 being asked to talk about things about which she has no 10 personal knowledge. If government counsel continues to ask 11 questions about the content of this order and what it 12 authorizes and where things were going to be and all the rest 13 of it, then I do not regard myself as bound to accept evidence 14 that I believe to be inadmissible because it appears to me, and 15 it has appeared to me before, that this could be a device for 16 trying to keep off the stand witnesses who do have personal 17 knowledge, witnesses who were involved, as to which if they 18 took the stand I would be entitled to Jencks material and I 19 could cross examine. 20 So I agree to stand down. I stand by every word I 21 said. But I am not going to agree about the future. 22 THE COURT: I will listen -- 23 MR. TIGAR: If that sounds more hostile than it needed 24 to be I apologize. I am sorry to be cantankerous. 25 THE COURT: I will listen to the government in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2775 46USSAT1 1 moment, but I would have thought that this is a subject as to 2 which there there really should be no issue because I wouldn't 3 expect many details from the witness, first; and, second, there 4 is no requirement that the details of all of this be spelled 5 out through this witness or through another witness as to whom 6 you say there might be Jencks material. Since this is a matter 7 of law on which I have already passed and, as you point out in 8 your letter, I adverted to it in voir dire and could give an 9 appropriate instruction at an appropriate time to the jury. 10 MR. TIGAR: I didn't wish to be misunderstood, your 11 Honor. Here is the problem: At some point the government is 12 going to try to authenticate the tapes or the results of that 13 surveillance. The content of particular conversations 14 allegedly overheard is a key issue in this case as is 15 illustrated by the opening statements by Mr. Morvillo and 16 myself. Therefore, I can't predict the future, but there will 17 certainly be a discussion about whether the machines that were 18 installed were capable of overhearing, where those microphones 19 were placed, exactly what was done, all at the end of 20 presenting our contention, which I think will have to be done 21 at the end, that the government's version of these 22 conversations is simply wildly inaccurate and prejudicial and 23 that a part of it has to do with the imperfections of the 24 process. 25 That is all I was saying. Some day there will be an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2776 46USSAT1 1 authentication battle here. It won't be with this witness. 2 And at that time maybe that order will become relevant, maybe 3 it won't, but I am just saying I haven't desisted forever from 4 the right to ask for things that might become important to us 5 later on. That is all I was saying, your Honor. I agree with 6 what you are describing about this witness and I thought I said 7 that. 8 I don't see any reason to be marching up that road 9 with this witness because the further they march on direct, the 10 further I am entitled to go on cross. 11 MS. BAKER: Your Honor, as I said yesterday, it would 12 be the government's intention with appropriate witnesses to ask 13 whether there were court orders, the kind of surveillance 14 authorized by the court orders, for example, audio recording, 15 video recording, et cetera, all of which, as your Honor said a 16 few minutes ago, is publicly obvious from everything that has 17 happened in the case up to this point. 18 Separate and apart from those very narrow questions 19 about the court orders, obviously the government needs to offer 20 an appropriate amount of evidence to establish how the 21 surveillance was conducted in order to authenticate it or give 22 the jury a basis for giving it the weight that the government 23 feels it is entitled to because of its accuracy and 24 reliability. And so obviously through appropriate witnesses 25 the government will elicit what the government believes to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2777 46USSAT1 1 an appropriate quantity of information, and I understand that 2 Mr. Tigar has differing views and he may seek to go further on 3 cross, but we will need to elicit an appropriate amount of 4 information about technologically how the surveillance was 5 conducted. For example, just taking the telephone calls as an 6 example, describe what the equipment was that was used and how 7 it operated. And your Honor has reviewed the orders. 8 THE COURT: Yes, but there are two issues and they are 9 appropriately kept separate. One is a very narrow question as 10 to whether there was a court order authorizing audio and/or 11 visual surveillance, period. Because presumably this witness 12 or another witness wouldn't allow something to be done in the 13 absence of an order. And that is a question and, as I 14 understand it, the objection to that was withdrawn and that is 15 apparently the end of that line on that subject and there would 16 be an appropriate instruction with respect to surveillance in 17 the final instruction. 18 There is a separate issue, which in my mind is not 19 elicited with questions, the gist of which are whether the 20 specific kind of placement of microphones is something that was 21 court ordered in order for bootstrapping or anything like that, 22 that this is okay because the court told us place the 23 microphones here, place the cameras there. Those issues go to 24 the other issue about are these fair and accurate recordings, 25 did they accurately pick up what was there, and that is argued SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2778 46USSAT1 1 out irrespective of the fact that this was court ordered 2 surveillance. And that is what I understand the two issues are 3 and I believe that they are separate. 4 MS. BAKER: Your Honor, we absolutely agree. That was 5 the very point that I was trying to make. But I stood to make 6 it because Mr. Tigar's last remarks suggested to me that he 7 does not view those as two separate issues and that once we ask 8 the witnesses something about technologically how the 9 surveillance was conducted, that he was going to use that at 10 every opportunity to renew his request that the orders be 11 disclosed to him. 12 So your Honor has made my very point. But I just need 13 to take it one little step further, because the two points get 14 a little closer together, although we respectfully submit still 15 remain separate, with respect to the recording of the telephone 16 conversations, so I just want to make the court aware by 17 proffering a little piece of the testimony that is going to 18 come regarding the recording of the telephone calls. 19 THE COURT: From this witness? 20 MS. BAKER: No. And so if your Honor wants me to 21 wait, I will. But it relates to what Mr. Tigar was just 22 arguing. 23 THE COURT: Well, as long as you raised it we might as 24 well hear it so at least I can think about it. 25 MS. BAKER: For the recording of the telephone calls, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2779 46USSAT1 1 as your Honor knows from papers we have already submitted, the 2 FBI used systems that once programmed to monitor a particular 3 telephone line recorded all calls on that telephone line. And 4 so the way I expect this testimony to come from the witnesses 5 about that is that upon receipt of a court order a person with 6 the right skills and systems access, and so on, programs the 7 system to monitor the telephone numbers specified in the court 8 order for the time period specified in the court order and then 9 the system does its automatic recording. And so, again, we 10 submit that still those are two separate issues and we have not 11 disclosed anything that would require the court order to be 12 declassified and disclosed, but I did want to proffer that 13 testimony to your Honor. 14 THE COURT: All right. 15 MR. TIGAR: I don't know how the prosecutors could 16 know what I intend to do about matters that have not yet 17 occurred, but I will let that pass. Whether or not the issues 18 are separate, I hope that they will be. Whether they are or 19 not and whether I do get the right to keep moving for what I 20 dearly would like to see -- that order -- is going to depend on 21 what doors get opened. After all, I do disagree a little bit 22 with your Honor because under CIPA only the United States can 23 object on grounds of classification under the statute. Now, to 24 me that doesn't just give them a right to object under CIPA 25 Section 6, but I would say it gives them an obligation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2780 46USSAT1 1 Now, if that is all there is I withdraw my objection. 2 I am entitled to take advantage of doors opened by my adversary 3 and so whether they are opened or not, I don't know. Other 4 than that I can't say anything. 5 THE COURT: All right. 6 So far I haven't heard any disagreement to the basic 7 structure that I set out, which is a reasonable way to proceed 8 with this witness and it should be a reasonable way of 9 proceeding when we get to the more technical witnesses on 10 recording. And it does seem to me that the real objection is 11 bootstrapping on the basis of court order rather than the 12 laying out here is what happened and here is why this was 13 reliable, authentic, et cetera. 14 MR. TIGAR: Well, I am sorry to get up, your Honor, 15 but I respectfully suggest there is more than that. We would 16 not object to an instruction at the end, look, the court has 17 determined this is legal. Its weight, if any, is for the jury. 18 That basically is what that would say. But what happens here 19 is a court order, court order, court order gets mentioned and 20 for many jurors this is the only place they have been in. They 21 think a court is a place where one side gets to talk and 22 another side gets to talk. 23 The FISA court is not a court. It doesn't have any of 24 the Article III characteristics. It was a compromise made by 25 Congress for foreign intelligence. We have three United States SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2781 46USSAT1 1 citizens on trial here, your Honor, and the continued 2 invocation of some idea of a court is, I think, tactically -- 3 and I know what they are doing and I think it's wrong and I 4 suggest that what the Supreme Court said the other day may 5 cause us to count the days for some compromises like that with 6 Article III sufficient under the procedural hour as that 7 argument. But that, your Honor, is what lies at the bottom of 8 this. And I agreed to withdraw my objection but I am saying 9 that that I do think is also an issue that is going to come up 10 and if it does, then I will argue to you. 11 MS. BAKER: Your Honor, first of all, the FISA court 12 is comprised of Article III judges and, second of all, whatever 13 criticisms they might have of the FISA court your Honor, an 14 Article III judge, has refused the FISA court determinations 15 and pronounced them legally appropriate for purposes of this 16 case and the government respectfully submits that therefore 17 it's appropriate for the government when necessary to convey 18 what was done and why. It's not going to happen often. It's 19 not something we seek to elicit from every witness. It's being 20 elicited from this witness because she was involved to a degree 21 in the setting up of the technology for the conduct of the 22 surveillance of the prison visits. 23 Similarly, the witnesses regarding the recording of 24 the telephone calls, it's relevant to their testimony for the 25 reason that I proffered to your Honor a few minutes ago. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2782 46USSAT1 1 so in those limited circumstances the government respectfully 2 submits that the limited questions and answers we have 3 discussed should be appropriate. 4 THE COURT: All right. 5 There is a limited question and answer. There is a 6 limited question as to which the objection is withdrawn and 7 that limited question the witness can answer. If the same 8 question is needed for another surveillance, simply was there a 9 court order or did you have a court order or whatever the 10 question was for the existence of the surveillance, I assume 11 that there would be no objection to that question and that 12 answer. 13 The problem is going further you have brought to my 14 attention one additional issue that may come up with another 15 witness and I listened to any argument on that. It does seem 16 to me that there is a reasonable limit on there was a court 17 order and we conducted surveillance without going further. And 18 the surveillance was subject to an appropriate instruction that 19 all parties agree upon in my final instructions, and that 20 really should be it. 21 MS. BAKER: Your Honor, of course we will proceed that 22 way. I am not asking for anything further at this time except 23 I would qualify that by saying I would ask that if Mr. Tigar 24 comes to believe at some point that the line of questioning has 25 gone too far, we would ask that in the presence of the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2783 46USSAT1 1 that he simply object and not call for disclosure of the court 2 order in the presence of the jury as he did yesterday. 3 THE COURT: Yes, I agree with that. I paused on the 4 question whether I should tell the jury this morning that the 5 objection is withdrawn or whether I should tell the jury that 6 the objection is stricken. And the reason for that was knowing 7 that on reflection that the order was something that I had 8 previously passed on and that was classified, it raised at 9 least an issue in my mind, but I was prepared to say it's 10 sufficient that the objection be withdrawn. But I think that 11 that is a comment that shou be made before the jury. So, 12 please, an objection is sufficient. 13 MR. TIGAR: I will, of course, abide by that order. 14 A clarification. I thought I heard Mr. Baker say that 15 this witness that is now on the stand was responsible for 16 making the arrangements about the surveillance. I trust that 17 if that is so, that there will be no more questions that have 18 words like court order in them, she will just describe what she 19 did. 20 THE COURT: Mr. Baker. 21 MR. DEMBER: Your Honor, I am looking at yesterday's 22 transcript just to make sure whether she answered that question 23 or not. 24 MS. BAKER: Assuming that the question of whether 25 there was a court order was answered, we believe that that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2784 46USSAT1 1 would be sufficient. That is what we are trying to confirm. 2 MR. TIGAR: It's reproduced in Ms. Baker's letter. 3 MR. DEMBER: I am looking at the transcript. 4 MR. TIGAR: I would just check her letter. 5 THE COURT: It ends with the objection. 6 MS. BAKER: Right. The purpose of the last question, 7 which was: 8 "Q. And do you recall if the order indicated how the 9 monitoring could be done? Was it simply visual monitoring?" 10 The point of that question was we expect the witness 11 would say that what was authorized was video monitoring and 12 that would be the extent of the testimony that related to the 13 court order in any way and then the questions would move on to 14 what this witness knows about how that was actually set up or 15 carried out. 16 So we would ask that that last question be permitted 17 to be answered. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2785 46UMSAT2 1 THE COURT: Everything else would be without reference 2 to the court order. 3 MR. DEMBER: Correct, your Honor. 4 THE COURT: I will tell the witness that there was a 5 pending objection to a question. The objection is withdrawn. 6 The question can be replaced. 7 Take two minutes, talk to the witness, advise the 8 witness about the question and the answer. 9 MR. DEMBER: I will do that, your Honor. 10 (Recess) 11 THE COURT: I gave all of you a copy of the letter 12 that I plan to give to the juror, if that's satisfactory to 13 everyone. 14 MS. BAKER: It is to the government, your Honor. 15 MR. PAUL: Fine. 16 MR. RUHNKE: Yes. 17 THE COURT: I'll give that to Mr. Fletcher to give to 18 the juror after the lunch hour, and if the government could put 19 the witness back on the stand and we will call in the jury. 20 (Jury present) 21 THE COURT: Good morning, ladies and gentlemen. It is 22 good to see you all. 23 As I have explained to you before, sometimes there is 24 a delay in bringing you out because what I try to do is I try 25 to deal with legal issues before you come out into the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2786 46UMSAT2 1 box, and I deal with them at breaks and at lunch hours and at 2 the end of the day so that I try very hard while you're in the 3 jury box that you're not interrupted with legal conferences and 4 the like. And sometimes that takes a little longer than I 5 would like, but it is no one's fault. And, obviously, you 6 shouldn't draw any inferences or hold it against anyone. 7 That's all my doing, dealing with questions of law. And so I 8 very much appreciate your indulgence if there seems to be a 9 delay in bringing you out at any time. 10 Now, the witness is on the stand. 11 Mr. Fletcher. 12 THE DEPUTY CLERK: Ms. Christenson, you're reminded 13 you're still under oath. 14 THE WITNESS: Yes. 15 THE COURT: Where we were yesterday, ladies and 16 gentlemen, there was a question, there was an objection, the 17 objection is withdrawn, and so the question can be reposed and 18 answered. 19 Mr. Barkow, you may proceed. 20 KARA CHRISTENSON, resumed. 21 DIRECT EXAMINATION (cont'd) 22 BY MR. DEMBER: 23 Q. Ms. Christenson, yesterday we left off discussing an order 24 and the authorization of the FBI to monitor visits between 25 Mr. Abdel Rahman and his attorneys. Do you recall that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2787 46UMSAT2 Christenson - direct 1 A. Yes, I do. 2 Q. And did you see that order? 3 A. Yes, I did. 4 Q. And in what way was the FBI authorized to monitor those 5 conversations between Mr. Rahman and his lawyers? 6 A. Through visual and audio means. 7 Q. Now, at any point in time did the FBI agents come to your 8 offices after you received that order? 9 A. Yes. 10 Q. And can you tell us, just from the way the Federal Medical 11 Center at Rochester is set up, where your office is located in 12 relationship to other buildings at the facility? 13 A. When you come in the front entrance building of the prison, 14 the building that we are located in is the first one to your 15 right of that front entrance building. It would be the first 16 building you would encounter when you come into the 17 institution. Our office is in the basement of that building. 18 Q. How many buildings are there at the institution? 19 A. Approximately seven. 20 Q. And are your offices where the legal department is located? 21 A. Correct. 22 Q. And at some point did the FBI come to your offices with 23 equipment? 24 A. Yes. 25 Q. And did they install that equipment? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2788 46UMSAT2 Christenson - direct 1 A. They did. 2 Q. Where did they install that equipment? 3 A. Some equipment was in my office, some equipment was in the 4 conference room across the hallway. 5 Q. Was that the associate warden's conference room that you 6 referred to yesterday? 7 A. Yes. 8 Q. Where is that in relationship to your office? 9 A. Right across the hall. 10 Q. Did you see the kind of equipment that the FBI placed in 11 your office? 12 A. Yes. 13 Q. And in general terms, what kind of equipment was that? 14 A. It appeared to be a TV screen, monitoring screen, and a 15 headset. 16 Q. And did you see those agents install any equipment in the 17 associate warden's conference room? 18 A. Yes. 19 Q. And could you tell what kind of equipment that was, in 20 general terms? 21 A. I can't tell you specifically what it was. It appeared to 22 be monitoring equipment. 23 Q. And did you see where they placed that monitoring equipment 24 in the conference room? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2789 46UMSAT2 Christenson - direct 1 Q. Where did they place it? 2 A. In the ceiling. 3 Q. Now, did the FBI just come once to install such equipment, 4 or was it on more than one occasion? 5 A. It was on more than one occasion. 6 Q. And did they bring the same type of equipment each time? 7 A. Yes. 8 Q. And did they install that equipment in the same place as 9 you just described for us each time? 10 A. Yes. 11 Q. By the way, do you have any recollection as to the first 12 time that they came, as to when that was? 13 A. I don't specifically. 14 Q. Once that first time that occurred where the equipment was 15 installed, were all of Mr. Abdel Rahman's visits with his 16 attorneys in the associate warden's conference room? 17 A. Yes, they were. 18 MR. DEMBER: Your Honor, may I approach the witness? 19 THE COURT: Yes. 20 Q. Ms. Christenson, I have just placed before you, I believe 21 it is seven photographs which are marked for identification as 22 Government's Exhibits 360 through 366, is that correct? 23 A. Yes. 24 Q. First of all, are those photographs? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2790 46UMSAT2 Christenson - direct 1 Q. Do you recognize them? 2 A. I do. 3 Q. Do you know who took those photographs? 4 A. I do. 5 Q. Who took them? 6 A. I did. 7 Q. Do you remember when you took them? 8 A. I do. 9 Q. And when is that? 10 A. June 16. 11 Q. Of this year? 12 A. Of this year. 13 Q. And can you tell us in general terms what is depicted in 14 each of those photographs? 15 A. It is various views and angles of that associate warden's 16 conference room. 17 Q. Is that where the meetings between Mr. Abdel Rahman and his 18 attorneys occurred? 19 A. Yes. 20 Q. That were monitored? 21 A. Yes. 22 Q. Are these photographs fair and accurate representations of 23 how the room itself appeared -- withdrawn. Let me ask one 24 other question. 25 When Mr. Abdel Rahman had visits with his attorneys, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2791 46UMSAT2 Christenson - direct 1 was there any furniture added to the associate warden's 2 conference room for purposes of those visits? 3 A. Yes. 4 Q. And what piece of furniture was that? 5 A. A round table was brought in. 6 THE COURT: I'm sorry. 7 Could you repeat your answer and bring the microphone 8 towards you and make sure to enunciate so that everyone can 9 hear you. Thank you. 10 A. A round table was brought into the conference room. 11 THE COURT: A round table? 12 THE WITNESS: Yes, a round table. 13 Q. What was the purpose of bringing the round table into the 14 conference room? 15 A. I don't remember specifically what the purpose was. 16 Q. Do you remember where that round table was placed in the 17 conference room? 18 A. Yes. 19 Q. Where was it placed? 20 A. Right near one of the windows. 21 Q. How many windows are there leading into the conference 22 room? 23 A. One window by each entrance. There are two entrances into 24 that conference room. 25 Q. There are two windows? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2792 46UMSAT2 Christenson - direct 1 A. I believe so. 2 Q. And does that round table appear in any of the photographs 3 you have before you? 4 A. It does not. 5 Q. And other than the fact that the round table that you just 6 described for us does not appear in these photographs, do these 7 photographs fairly and accurately represent the way the room 8 appeared when the FBI installed the equipment in the room? 9 A. Yes. 10 MR. DEMBER: Your Honor, the government offers 11 Exhibits 360 through 366 in evidence. They have been provided 12 to defense counsel previously. 13 MR. TIGAR: May I inquire, your Honor? 14 THE COURT: Yes. 15 MR. TIGAR: Thank you. 16 VOIR DIRE EXAMINATION 17 BY MR. TIGAR: 18 Q. Ms. Christenson, a clarification. When the legal visits 19 took place, were the square or rectangular tables that are in 20 these pictures that you took moved out of the way? 21 A. Yes. They were pushed back. 22 Q. So that when we look at these pictures and if we want to 23 have a mental image of what it was like during the legal 24 visits, we would think of those tables being pushed over to one 25 side and that round table where you have told us it is, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2793 46UMSAT2 Christenson - direct 1 A. Correct. 2 MR. TIGAR: Thank you very much, your Honor. With 3 that understanding, we have no objection to the admission of 4 these photographs. 5 THE COURT: Government Exhibits 360 through 366 6 received in evidence. 7 (Government's Exhibits 360-366 received in evidence) 8 MR. DEMBER: Your Honor, may we display Exhibit 360, 9 please? 10 THE COURT: Yes. 11 MR. DEMBER: To everyone. 12 It does not appear to be on the big screen. 13 MS. BAKER: Your Honor, we may be having a technical 14 problem with the projector. 15 MR. DEMBER: I think it is sufficient, your Honor. I 16 think if the jury has it in front of them on their screens, we 17 can proceed. 18 THE COURT: All right. 19 Ladies and gentlemen, you will have to look at the 20 smaller screens for these photos. 21 BY MR. DEMBER: 22 Q. Ms. Christenson, let me first ask you, do you have that 23 exhibit in front of you on the screen? 24 A. Yes, I do. 25 Q. That appears to be a black and white version of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2794 46UMSAT2 Christenson - direct 1 photograph, is that correct? 2 A. That's correct. 3 Q. Are all the photographs which are Exhibits 360 to 366 in 4 color? 5 A. Yes, they are in color. 6 Q. Can you tell us what is depicted in this photograph? 7 A. It is the inside of the associate warden's conference room. 8 Q. And do you see in this particular photograph the location 9 where that round table was placed? 10 A. Yes. 11 Q. I am going to ask you, through the marvels of modern 12 technology, with your finger -- 13 THE COURT: Hold on one moment. The picture is now up 14 on the large screen also. 15 MR. DEMBER: Thank you, your Honor. 16 Q. If you would touch the lower left-hand corner of the 17 monitor. Could you draw with your finger the location of where 18 that round table was, using a circle to represent the table? 19 Was it that big, actually? 20 A. Not that big. 21 Q. I think on the right-hand side of the screen there is a 22 word erase. Why don't you erase that. To the best of your 23 ability, as accurately as you can try to draw essentially to 24 scale if you can or as close to scale the table. Is that where 25 it was? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2795 46UMSAT2 Christenson - direct 1 A. Right about that area. 2 Q. You see there is two long tables depicted in the 3 photograph? 4 A. Yes. 5 Q. And were those tables moved or pushed to the side out of 6 the way? 7 A. Yes, they were. 8 Q. And would you tell us, to your best estimate, the closest 9 edge of the round table, how far was that from the ledge on the 10 window that we are looking at in the photograph, would you say? 11 A. About a foot, 18 inches, maybe. 12 Q. And by the way, there is the window, obviously, there in 13 the photograph and next to it the door, correct? 14 A. Correct. 15 Q. If you look through the window, there appear to be offices 16 on the other side of the hallway, is that correct? 17 A. That's correct. 18 Q. And what's on the other side of that hallway, what offices? 19 A. The legal department offices. 20 Q. Now, just using this photograph for the moment, do you see 21 where -- withdrawn. 22 Is there shown in this photograph a location where you 23 saw the FBI agents installing equipment in the ceiling of the 24 conference room? 25 A. Draw a circle around the area? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2796 46UMSAT2 Christenson - direct 1 Q. Would you do that for us, please? 2 A. Yes. 3 MR. DEMBER: Can we have displayed for the jury and 4 for everybody, actually, Exhibit 361, please. 5 Your Honor, may we display 361? 6 THE COURT: Yes. 7 Q. By the way, Ms. Christenson, would you push that erase 8 button -- 9 THE COURT: If anyone wanted to try to make a copy or 10 photo of where the circles were, we could look at that. If I 11 don't hear an objection -- 12 MR. TIGAR: No, your Honor. I think we know the 13 technology can do it. I did have a question. The photographs 14 are in color, but they are being displayed in black and white. 15 Is that a technological problem? 16 MR. DEMBER: It appears to be, your Honor, yes. 17 Q. Could you push the erase button again so we could eliminate 18 those two circles. 19 Would you tell us, what is shown in this photograph? 20 A. It shows the associate warden's conference room from the 21 hallway looking in through the window. 22 Q. Was that the same window that was shown in the first 23 photograph? 24 A. Yes. 25 Q. That's just a photograph taken from the hallway itself? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2797 46UMSAT2 Christenson - direct 1 A. Correct. 2 MR. DEMBER: Can we display Exhibit 362 for the jury, 3 please? 4 THE COURT: All right. 5 Q. Is that another version of the photograph taken from that 6 same window from the hallway? 7 A. Yes, it is. 8 MR. DEMBER: May we display 363, your Honor? 9 THE COURT: Yes. 10 Q. Again, that's a photograph of the conference room, Ms. 11 Christenson? 12 A. Yes, it is. 13 Q. Now, the window that was shown in the first exhibit, 360, 14 which one of those two windows is shown in this photograph -- 15 where is that window shown in this photograph? 16 A. It is the window farthest to the right. Do you want me to 17 point? 18 Q. Why don't you point to it, first of all. 19 A. Right there. 20 Q. And could you again, using blue ink, I guess, this time, to 21 the best of your ability, show us the location of where that 22 table was placed. 23 A. Right in this area. 24 Q. Could you show us again where you saw the equipment placed 25 in the ceiling of that room? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2798 46UMSAT2 Christenson - direct 1 A. Right in that area. 2 MR. DEMBER: Unless anyone wants to -- 3 Q. Why don't you press the erase button there. 4 MR. DEMBER: May we display to the jury Exhibit 364, 5 your Honor? 6 THE COURT: Yes. 7 Q. That's essentially another version of the same shot, is 8 that correct? 9 A. That's correct. 10 MR. DEMBER: May we display Exhibit 365 to the jury, 11 your Honor? 12 THE COURT: Yes. 13 Q. And what's depicted in this photograph? 14 A. The ceiling of that conference room. 15 Q. Is that the section of the ceiling that you were circling 16 in the other two photographs? 17 A. Yes, it is. 18 MR. DEMBER: May we display Exhibit 366, your Honor? 19 THE COURT: Yes. 20 Q. That's just a long shot of the room again? 21 A. Correct. 22 Q. The full length? 23 A. Yes. 24 MR. DEMBER: We can take the photograph down, please. 25 Your Honor, may I approach the witness again? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2799 46UMSAT2 Christenson - direct 1 THE COURT: Yes. 2 Q. Ms. Christenson, I've just handed up to you documents which 3 have been marked for identification as Government Exhibits 319 4 through 329. 5 A. Yes. 6 Q. Are you familiar with those documents? 7 A. Yes, I am. 8 Q. And how do you recognize those documents? 9 A. They were drafted for the warden's signature out of the 10 legal department. 11 Q. And are those documents kept in the normal course of your 12 business at the Bureau of Prisons? 13 A. Yes, they are. 14 Q. As part of your responsibility to maintain those records? 15 A. Yes, it is. 16 MR. DEMBER: Your Honor, the government offers 17 Exhibits 319 through 329 into evidence. 18 MR. TIGAR: May I have just a moment, your Honor, to 19 flip through these? 20 THE COURT: Sure. 21 MR. TIGAR: Thank you. 22 No objection. 23 THE COURT: Government Exhibits 319 through 329 24 received in evidence. 25 (Government's Exhibits 319-329 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2800 46UMSAT2 Christenson - direct 1 Q. Ms. Christenson, would you tell us what these documents 2 are? 3 A. They are the notification of the SAM to Mr. Abdel Rahman. 4 Q. And did you have any responsibility in terms of preparing 5 these documents? 6 A. Yes. 7 Q. And what did you do with these documents? 8 A. I drafted them each time we received a copy of the 9 extension of the SAM. 10 Q. And where would you draft them from? 11 A. From my office. 12 Q. How would you know to draft them? 13 A. Pardon me? 14 Q. How would you know to draft them? 15 A. We would receive by fax a copy of the SAM extension from 16 our central office, typically. 17 Q. And where is that central office? 18 A. In Washington, D.C. 19 Q. Is that part of the Bureau of Prisons? 20 A. Yes. 21 Q. And when you drafted them what would you do with them once 22 you drafted them? 23 A. Pardon me? 24 Q. Withdrawn. 25 What would you do to draft them? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2801 46UMSAT2 Christenson - direct 1 A. I would pull up the file on my computer, insert the 2 appropriate information as far as the extension dates, and 3 route it to the warden for his signature or her signature. 4 Q. And these SAMs pertain to whom? 5 A. Mr. Abdel Rahman. 6 Q. And was Mr. Abdel Rahman advised of the SAMs? 7 A. Yes, he was. 8 Q. And do you know how he was advised of the SAMs? 9 A. Yes, I do. 10 Q. How was he advised of the SAMs? 11 A. They were read to him. 12 Q. Now, were they always read to him with a translator? 13 A. Not always. 14 Q. Was a translator used on occasion? 15 A. On occasion, yes. 16 Q. When it wasn't used with a translator, were they just read 17 to him in English? 18 A. Correct. 19 Q. What would determine whether or not a translator was used? 20 A. It was based on the availability of the translator. 21 Q. Did the Federal Medical Center at Rochester have any 22 translators on staff? 23 A. No. 24 Q. Did you have any Arabic-speaking correction officer or 25 guards on staff? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2802 46UMSAT2 Christenson - direct 1 A. No. 2 Q. Did you have any other members of your staff who spoke 3 Arabic? 4 A. One staff member who spoke very broken Arabic. 5 Q. Was that person fluent in Arabic? 6 A. Not at all. 7 Q. And did the facility have to rely upon outside persons to 8 help do the translations? 9 A. Yes, we did. 10 Q. Now, on occasion were the reading of the SAMs to Mr. Abdel 11 Rahman recorded in any fashion? 12 A. Yes, they were. 13 Q. How was that done? 14 A. Via a video recorder. 15 Q. Were they videotaped? 16 A. Yes, they were. 17 Q. Were they always videotaped? 18 A. Not always. 19 Q. Was there a requirement anywhere in the SAMs to videotape? 20 A. No. 21 Q. To your knowledge, were there any requirements in the 22 rules, regulations or law that required the facility to 23 videotape giving of the SAMs to Mr. Abdel Rahman? 24 A. Not to my knowledge. 25 MR. DEMBER: Your Honor, may we display Exhibit 321 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2803 46UMSAT2 Christenson - direct 1 for the jury? 2 THE COURT: Yes. 3 Q. Ms. Christenson, do you have a copy of that in front of 4 you? 5 A. Yes, I do. 6 Q. Is this a typical version of the SAMs that you would 7 prepare? 8 A. Yes, it is. 9 Q. And would you tell us the date on this particular version 10 of the SAMs? 11 A. It is dated April 7, 2000. 12 Q. And who is essentially issuing these SAMs in the video? 13 A. The warden of the facility, Constance Reese at the time. 14 Q. Would you turn to the back page, the last page. 15 MR. DEMBER: May we turn to the last page of the 16 document, please, which is the fourth page. 17 Q. Is there an indication on the final page of the document, 18 SAMs, as to whether or not this particular version was 19 translated for Mr. Abdel Rahman? 20 A. Yes, there is. 21 Q. And were they translated? 22 A. Yes, it was. 23 Q. Is this a typical version of the SAMs that were prepared 24 for him? 25 A. Yes, it is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2804 46UMSAT2 Christenson - direct 1 Q. By you? 2 A. Yes. 3 MR. DEMBER: Your Honor, may we display Exhibit 329 4 for the jury, please? 5 THE COURT: Yes. 6 Q. Do you have that in front of you, Ms. Christenson? 7 A. Yes, I do. 8 Q. Would you tell us the date on that version of the Special 9 Administrative Measures? 10 A. This is dated April 6, 2001. 11 Q. And who were they issued by? 12 A. The warden. 13 Q. The warden? 14 A. Yes. 15 Q. Was it Warden Reese also on that date? 16 A. Yes. 17 MR. DEMBER: Can we display the last page of this 18 exhibit, please. 19 Q. Is there any indication on the last page as to whether or 20 not the Special Administrative Measures were translated for 21 Mr. Abdel Rahman on that day? 22 A. Yes, there is. 23 Q. And was it? 24 A. Yes, it was. 25 MR. DEMBER: May I approach the witness, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2805 46UMSAT2 Christenson - direct 1 THE COURT: Yes. 2 Q. Ms. Christenson, I have placed before you an exhibit that 3 has been marked for identification as Government Exhibit 370. 4 Are you familiar with that exhibit? 5 A. Yes, I am. 6 Q. And how are you familiar with it? 7 A. It is a video recording of the reading of one of the SAM 8 extensions to Mr. Abdel Rahman. It is maintained in my office. 9 Q. Did you maintain the various videotapes that were made of 10 the SAMs being read to Abdel Rahman? 11 A. Yes. 12 Q. And is this a copy of one of those recordings? 13 A. Yes, it is. 14 Q. Who prepared the copy? 15 A. I did. 16 Q. And from your review of it, is it a fair and accurate 17 representation of the SAMs being given to Mr. Rahman on the 18 date, April 19, 2000? 19 A. Yes, it is. 20 MR. DEMBER: Your Honor. The government offers into 21 evidence Exhibit 370. 22 MR. TIGAR: No objection, your Honor. 23 THE COURT: Government Exhibit 370 received in 24 evidence. 25 (Government's Exhibit 370 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2806 46UMSAT2 Christenson - direct 1 Q. Ms. Christenson, I believe you told us that you have worked 2 at the Rochester facility for over 12 years, is that correct? 3 A. That's correct. 4 Q. And other than Mr. Abdel Rahman, has there ever been an 5 inmate at the Federal Medical Center at Rochester who was under 6 SAMs restrictions? 7 A. No, there was not. 8 Q. Is he the only one? 9 A. He is the only one. 10 MR. DEMBER: May I have a moment, your Honor? 11 THE COURT: Yes. 12 MR. DEMBER: Your Honor, I have no further questions 13 at this time. 14 THE COURT: Mr. Tigar, you may examine. 15 MR. TIGAR: Thank you, your Honor. 16 CROSS-EXAMINATION 17 BY MR. TIGAR: 18 Q. Ms. Christenson, what is your educational background? 19 A. I have an associate's degree in legal administrative work. 20 Q. And have you been a paralegal all your professional life? 21 A. I'm not a paralegal. I'm a legal instruments examiner. 22 Q. I'm sorry, a what? 23 A. A legal instruments examiner. 24 Q. Legal instruments examiner. 25 Would you tell me, please, what do you do as a legal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2807 46UMSAT2 Christenson - cross 1 instruments examiner there at the prison? Is it like a 2 paralegal, or what? 3 A. In some aspects. We do have paralegals in our office as 4 well. I assist in gathering documents, help prepare responses 5 to litigation, administrative tort claims, and FOIA requests by 6 inmates to the warden or our staff. 7 Q. Now, FOIA requests, that's the Freedom of Information Act, 8 right? 9 A. Correct. 10 Q. And can inmates write letters to the warden and ask that 11 certain records be produced to them? 12 A. That would not be a properly filed FOIA request. They 13 would have to send their FOIA requests to our central office in 14 Washington, D.C. 15 Q. And your central office is the Bureau of Prisons, right? 16 A. Correct. 17 Q. And during all the time we are talking about here, the head 18 of the Bureau of Prisons of was Kathleen Hawke or Kathleen 19 Hawke Sawyer, right? 20 A. Correct. 21 Q. Now, at your facility how many inmates do you have? 22 A. Approximately 800, 820. 23 Q. And are they housed in single cells or double cells? 24 A. There is various housing assignments. 25 Q. I want to ask you some questions to get an idea of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2808 46UMSAT2 Christenson - cross 1 conditions, the way that Sheikh Abdul Rahman was living in your 2 facility, all right? 3 A. Okay. 4 Q. He arrived there at about what date, did you say? 5 A. It was January or February of 1998. I don't remember the 6 specific date. 7 Q. And do you get a lot of people in your facility who have 8 been transferred in there from other federal medical facilities 9 for various reasons? 10 A. Yes. 11 Q. And do you have the idea that your place has better medical 12 care for some kinds of medical and mental conditions than other 13 facilities? 14 A. Not at all. 15 Q. Now, some of the people in your facility are there because 16 they have what we would call physical medical problems, right? 17 A. Sure. 18 Q. And others are there because they have what you would call 19 mental medical problems, right? 20 A. Sure. 21 Q. And, in fact, over the years you have been there you have 22 had quite a number of, shall we say, high-profile, well-known 23 inmates, correct? 24 A. We have had some, yes. 25 Q. If I were to come to your facility -- we have never met, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2809 46UMSAT2 Christenson - cross 1 have we? 2 A. No, we have not. 3 Q. Not that I remember. 4 But if I come to your facility, you are in Rochester, 5 Minnesota, correct? 6 A. Correct. 7 Q. Is that south of Minneapolis? 8 A. Yes, it is. 9 Q. If I were a lawyer coming to visit, I would park my car and 10 I would go through to the administrative desk, correct? 11 A. Correct. 12 Q. And I would fill out one of those forms like we saw 13 yesterday, that's a standard form that everybody has to fill 14 out if they want to get into a federal prison, correct? 15 A. Correct. 16 Q. And that form, this is one very much like is used in every 17 federal prison you have ever known about, right? 18 A. Yes. 19 Q. In addition to that, if I'm a lawyer and I want to see 20 somebody, there was another little slip of paper that a lawyer 21 has to fill out, say, if I'm going on a legal visit, correct? 22 A. Yes. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2810 46USSAT3 Christenson - cross 1 Q. Now, what is the purpose -- in your office, what is the 2 difference between a regular visit and a legal visit? 3 A. A regular visit would be with a family member or a friend 4 and a legal visit would be with an attorney or his designated 5 representative. 6 Q. Now, did Sheikh Abdel Rahman during the time you were there 7 have any visits from anybody other than lawyers and people that 8 were with them? 9 A. He had a visit from his family. 10 Q. Was that a contact visit? 11 A. I don't remember. 12 Q. When you say contact visit, in Bureau of Prisons' talk that 13 means that there is no glass separating the inmate from the 14 people, correct? 15 A. Right. 16 Q. Now, if I were the lawyer coming to visit, I wouldn't go 17 visit him in his cell, would I? 18 A. No, you would not. 19 Q. I would be in one of those rooms that we saw the pictures 20 of, correct? 21 A. Correct. 22 Q. Now, he was in a cell all by himself, right? 23 A. Yes. 24 Q. About how big was that cell that he was in? 25 A. I don't know what the room dimensions were. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2811 46USSAT3 Christenson - cross 1 Q. Well, let's -- 2 A. It was a fairly good size. 3 Q. Well, you have seen it, correct? 4 A. Yes. 5 Q. Okay. 6 And it had a bed in it? 7 A. Yes. 8 Q. A single bed? 9 A. Yes. 10 Q. Did it have a shower? Or did he have to leave to take a 11 shower? 12 A. There was no shower in there. 13 Q. There is a toilet? 14 A. Yes. 15 Q. Is the toilet in a separate room or not? 16 A. It's all in the same room. 17 Q. And was there a table and chair? 18 A. Yes. 19 Q. Now, did you ever observe him in his daily prayers? 20 A. No. 21 Q. But there was a log book kept, was there not? 22 A. Yes. 23 Q. And you said he is the only person there as to whom you 24 kept a log book? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2812 46USSAT3 Christenson - cross 1 Q. Now, who decided, if you know, that a log book would be 2 kept as to him and not as to anybody else? 3 A. I don't know who made the decision. 4 Q. And what were your instructions about what you did with 5 this log book? 6 A. The instructions were that anybody that entered his cell 7 for whatever reason needed to sign in and state the reason that 8 they were there. 9 Q. And then after the log book was filled up you would keep 10 it, correct? 11 A. Correct. 12 Q. Were you given any instructions about how long you should 13 keep it or why? 14 A. No. 15 Q. Now, in this cell -- if you were going to go see him if you 16 were a guard, you would first go into something called a sally 17 port? 18 A. Correct. 19 Q. And that is an area that is separate from the hallway or 20 whatever, but not yet in the cell, correct? 21 A. That is correct. 22 Q. Now, before you went into the sally port, if you were a 23 guard just passing by, could you look directly into the cell? 24 A. Yes, I believe you could. Yes, you could. 25 Q. And once you were inside you could also look directly in, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2813 46USSAT3 Christenson - cross 1 right? 2 A. Correct. 3 Q. As an inmate, you knew he was there for a life sentence, 4 correct? 5 A. Yes. 6 Q. And in terms of contact with the outside world, he had a 7 right -- all inmates there have a right to send letters to 8 certain people that are approved, correct? 9 A. Correct. 10 Q. Now, did he have a Braille writer? 11 A. I am not certain if he did or if he did not. 12 Q. He had diabetes, didn't he? 13 A. Yes. 14 Q. And you have read the log entries that show that because of 15 his diabetes he had problems with his extremities, correct? 16 A. Correct. 17 Q. His fingers and toes. 18 A. Right. 19 Q. Do you know whether or not that was causing him difficulty 20 in trying to read Braille? 21 A. I don't know for certain if it was or if it wasn't. 22 Q. Now, all the time you were there, did you ever have 23 experience with him writing anything in Arabic? 24 A. Personally, no. 25 Q. Or in English? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2814 46USSAT3 Christenson - cross 1 A. Not personally. 2 Q. So you are not aware of any time when he actually wrote 3 anything, correct? 4 A. Correct. 5 Q. And we have already established he was blind, right? 6 A. Right. 7 Q. Now, when he was in his cell, did he wear the dark glasses 8 that were on the picture that you were shown, or did he not 9 wear the dark glasses? 10 A. I don't think he did. 11 Q. You don't ever remember seeing him with the dark glasses? 12 A. I don't remember seeing them. 13 Q. So he would sit in his cell and, now, could he go out of 14 his cell to get his meals? 15 A. No. 16 Q. Oh, then his meals would be brought to him, right? 17 A. Correct. 18 Q. Now, his meals would be brought to him by a guard, right? 19 A. Yes. 20 Q. And did any of the guards who would bring him his meals 21 speak Arabic? 22 A. No. 23 Q. And so far as you observed his ability in English was very 24 limited, correct? 25 A. Broken English, correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2815 46USSAT3 Christenson - cross 1 Q. And when doctors would come to see him, do you know whether 2 or not any of them spoke Arabic? 3 A. To my knowledge, none of them spoke Arabic. 4 Q. In fact, you have told us that you had, what, one person on 5 your staff who spoke some broken Arabic, right? 6 A. Very limited, yes. 7 Q. Now, with particular attention to that SAM that has been 8 received in evidence as Government Exhibit 321, I am going to 9 display that for you with the court's permission. 10 THE COURT: Yes. 11 MR. TIGAR: Thank you, your Honor. 12 Q. Turn the lamp on and let it warm up, and I am going to show 13 you the last page. 14 Can you tell me please -- of course it starts at the 15 top where I have my finger and it says "refused to sign," 16 right? 17 A. That is what it says. 18 Q. Now, did you witness this event, the reading of the SAM? 19 A. Personally I did not witness it. 20 Q. We can take a look though at some of the signatures, right? 21 A. Correct. 22 Q. Did you ever see Omar Abdel Rahman sign his name to 23 anything? 24 A. Personally I did not. 25 Q. Did you know whether being blind he would sign his name SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2816 46USSAT3 Christenson - cross 1 like a sighted person would do? 2 A. I don't know if he would or not. 3 Q. So the first signature on here says "refused to sign" and 4 then there is this name on here. Do you recognize that? 5 A. I do recognize that signature. 6 Q. Who is that? 7 A. Her name is Mary Haughen. She would have been Mr. Abdel 8 Rahman's unit manager. 9 Q. And a unit manager is someone in the hierarchy of the guard 10 personnel, is that fair to say? 11 A. Yes. 12 Q. Now, I don't want to insult anybody's job, but they are the 13 ones in charge of the inmates on a day-to-day basis, right? 14 A. She is a manager, yes. 15 Q. Okay. Then it says translator and who is that? 16 A. I believe that was Abraham al-Gaddi. 17 Q. Abraham -- 18 A. Al-Gaddi. 19 Q. And who is Abraham al-Gaddi? 20 A. He was a translator that we contracted with to provide 21 translating services. 22 Q. And did he provide translating service only for Sheikh 23 Abdel Rahman or for everybody? For anybody else rather? 24 A. He would have provided it for anybody who needed it. 25 Q. What languages did you contract with him to talk in? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2817 46USSAT3 Christenson - cross 1 A. Arabic. 2 Q. And do you have on file at the office there any information 3 about his qualifications to perform his job? 4 A. I do not have the information, no. 5 Q. Does the Bureau of Prisons have a set of qualifications, 6 official set of qualifications for people it hires to be 7 translators? 8 A. I don't know. 9 Q. Well, in your -- I am not trying to put you on the spot. 10 Do you have other people in there that didn't speak English in 11 your facility? 12 A. Yes. 13 Q. And did you have some translators for them too? 14 A. Most of the 9 English speakers are Hispanic and we do have 15 Spanish-speaking staff so we are able to utilize them. 16 Q. But you don't have any personal knowledge of any set of 17 qualifications for the translators, correct? 18 A. I do not. 19 Q. And you were not present at this scene, correct? 20 A. Correct. 21 Q. Now, you also looked at a SAM from the period 2001 and 22 that, I think, was Government Exhibit 329. Do you remember 23 that? 24 A. Yes. 25 Q. Do you have it in front of you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2818 46USSAT3 Christenson - cross 1 A. Yes, I do. 2 Q. Let me put that on the machine here. 3 Now, this one says "Rahman refused to sign. He 4 continued to chant through the English and Arabic 5 translations." 6 Do you see that? 7 A. Yes, I do. 8 Q. Were you present when that was happening? 9 A. No, I was not. 10 Q. And in this one who was the translator? 11 A. I believe it was Abraham al-Gaddi again. 12 Q. There is no signature there, correct? Mr. al-Gaddi's 13 name -- do you see it on there? 14 A. I see the signature but I don't see a printed name. 15 Q. I see. Where it says witness, that is Mr. al-Gaddi's 16 signature? 17 A. Correct. 18 Q. He signed as a witness? 19 A. Yes. 20 Q. Now, I want to turn back to -- let me do the first page if 21 I can of 321 and put that back. You said that when a SAM would 22 come you would use a word processor to prepare the actual 23 document that we see here, correct? 24 A. Correct. 25 Q. And you see there are different typefaces here. Did you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2819 46USSAT3 Christenson - cross 1 have the "pursuant to" part that I am pointing to in your 2 computer already and then you would just add the other part if 3 there had been no changes from one SAM to the next? 4 A. Yes. 5 MR. TIGAR: May I have just a minute, your Honor. I 6 am going to get some more exhibits for the next part. 7 Q. I want to continue on now talking about these log books and 8 how Mr. Omar Abdel Rahman would spend his day, correct? 9 A. Okay. 10 Q. All right. 11 For instance, if I may display Government Exhibit 331. 12 THE COURT: Yes. 13 MR. TIGAR: Your Honor, a question to the court: 14 Should I ask the court's permission before displaying each 15 document by number or may I have permission to display them 16 giving the exhibit number in each occasion? 17 THE COURT: You can display them if they are in 18 evidence. 19 MR. TIGAR: Thank you, your Honor. 20 Q. Now, I am putting up here what you have already discussed 21 as Government Exhibit 331. That is a page from the log book, 22 correct? 23 A. Correct. 24 Q. And it shows here "meds given and supper meal," correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2820 46USSAT3 Christenson - cross 1 Q. That means that somebody would come in and give him his 2 supper, right? 3 A. Right. 4 Q. Now, down here it says "6/23/2000, Mr. R sitting close to 5 door eating an orange," right? 6 A. Right. 7 Q. Now, were people instructed to note just everything that 8 happened or did each guard describe what they would tell or put 9 on here and what not? 10 A. People were instructed to state the reason that they were 11 in there. 12 Q. And then the next item down says "PT using toilet." And I 13 don't understand the rest of that entry. Do you see that where 14 it says "PT using toilet?" There. 15 A. Okay. 16 Q. And can you read the rest of that entry? 17 A. Not very well. 18 Q. But there are a number of instances here where the guards 19 would observe the inmate using the toilet and then they would 20 write that down, correct? 21 A. Correct. 22 Q. Now, that toilet that is in there, is that one of those 23 ones without a seat? 24 A. I don't remember exactly what the toilet looked like. 25 Q. And if he was going to use the toilet, a guard looking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2821 46USSAT3 Christenson - cross 1 could observe that behavior, correct? 2 A. Yes. 3 Q. Now, the next one here is "breakfast delivered, accepted 4 only muffins and apple," correct? 5 A. Correct. 6 Q. And then the next one "off of tray," and then it says 7 "cream applied to both legs, no" something. Do you know what 8 that stands for? 9 A. I don't. 10 Q. And could you read the next one? Does that say "compliant 11 with medications and insulin?" 12 Is that the word compliant? 13 A. That says compliant and the next word is an abbreviation 14 for "with." 15 Q. Okay. And then "medications and insulin," right? 16 A. I can't see the bottom. 17 Q. I am sorry, I can but you can't. I apologize. 18 Can you see the next line now? 19 A. Yes. 20 Q. And that says "medications and insulin"? 21 A. Correct. 22 Q. Now, in sum, throughout his days people would watch 23 everything he was doing, correct? 24 A. Correct. 25 Q. They could if they wanted to. There wasn't a guard there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2822 46USSAT3 Christenson - cross 1 all the time, was there? 2 A. No. 3 Q. He was a federal prisoner and these observations were part 4 of the routine that was established, correct? 5 A. Correct. 6 Q. He was the only one about him that had a log book but other 7 prisoners would get observed as well, correct? 8 A. Yes. 9 Q. And if another prisoner -- for instance, you have -- for 10 example, you had a prisoner who had been a judge in New York 11 who was being treated in your facility, correct? Do you 12 remember that? 13 A. I don't remember specifically. 14 Q. Then just take any hypothetical person. I don't want to 15 get into names. But if any person you have there is getting 16 medical treatment, you do keep a record of their medical 17 treatment, right? 18 A. Certainly. 19 Q. You don't have the same degree of detail but you keep 20 records of that. 21 A. Correct. 22 Q. Now, in these instances, did you visit with Sheikh Abdel 23 Rahman yourself very often? 24 A. No. Personally, no. 25 Q. Did you talk to the guards about him? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2823 46USSAT3 Christenson - cross 1 A. I don't remember if I had specific conversations with them 2 or not. 3 Q. Did you look at the log books from time to time? 4 A. Yes. 5 Q. And when you looked at the log books you could pretty well 6 tell that his day was spent in isolation, correct? 7 A. He was in his cell but people would come in and visit with 8 him and check on him. 9 Q. Right. 10 And the people that came in, they didn't speak his 11 language, correct? 12 A. Correct. 13 Q. They were not people that shared his religion, correct? 14 A. As far as I know. 15 Q. He was blind, correct? 16 A. Yes. 17 Q. And did you get reports that he would react to noises that 18 were happening outside his cell that were strange or foreign or 19 upsetting to him? 20 A. Yes. 21 Q. And did he mention that? 22 A. Not to me specifically. 23 Q. But through your chain of command -- 24 A. He mentioned it to people. 25 Q. And did he sometimes claim that things had happened, people SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2824 46USSAT3 Christenson - cross 1 were putting things in his cell or doing things that hadn't 2 happened? 3 MR. DEMBER: Objection, your Honor. 4 THE COURT: Basis? 5 MR. DEMBER: Relevance, hearsay. 6 THE COURT: Mr. Tigar. 7 MR. TIGAR: The relevance, your Honor, are the 8 conditions -- 9 THE COURT: Hearsay. 10 MR. TIGAR: I will limit it to other employees of the 11 institution acting within the scope of their employment, your 12 Honor. 13 THE COURT: No -- 14 THE COURT: 801(d). 15 THE COURT: It's 10 after 11, ladies and gentlemen. 16 It's a convenient time for us to take our mid-morning break. 17 Please remember my continuing instructions not to talk 18 about the case and keep an open mind. 19 All rise please. And follow Mr. Fletcher into the 20 jury room. 21 (Jury left the courtroom) 22 THE COURT: The witness can step down. 23 Okay, first of all, I am not sure why there is really 24 an objection to a question which asks did he make complaints 25 about things that weren't true. That is simply an observation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2825 46USSAT3 Christenson - cross 1 I mean, the question was whether he complained about things 2 that were not true, and it seemed to be seeking to elicit an 3 answer that was yes. I don't know what the witness would 4 testify or not. I don't understand the basis as to why there 5 would be an objection to that before I reach the issues of 6 hearsay. It's not an issue with respect to relevance. It's 7 relevant. 8 MR. DEMBER: I am sorry, your Honor? 9 THE COURT: It's not an issue for me as to relevance. 10 It's relevant based upon the issues in the case what complaints 11 he was making or not making. The indictment itself discusses 12 the fact of reports on his prison conditions and whether those 13 prison conditions were correct or incorrect and so the subject 14 of whether he is making complaints which are untrue is 15 relevant, so it's not an issue with respect to relevance and so 16 the question in my mind is why there is even an objection 17 before I deal with the issues of hearsay. 18 MR. DEMBER: For one reason. First of all, your 19 Honor, because it is hearsay so there is an objection. Plus, I 20 don't know what comes afterwards. I don't want to not object 21 to a question which may be perceived as opening the door for 22 more inappropriate hearsay. While I don't necessarily disagree 23 with what your Honor is saying it's looking down the road to 24 the next question which would be inappropriate hearsay. It's 25 obviously double hearsay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2826 46USSAT3 Christenson - cross 1 What is alleged in the indictment though, your Honor, 2 doesn't originate with Abdel Rahman in terms of false claims 3 about his health. Those originate from a different source, not 4 from him. 5 THE COURT: Okay. 6 Mr. Tigar, hearsay? 7 MR. TIGAR: Yes, your Honor. We have two positions on 8 that and I didn't want to say a lot in front of the jury. I 9 don't like speaking objections and that is why we are here. 10 In the first place it's not hearsay because 801(d) 11 says statements which are not hearsay. 801(d)(2)(c) is a 12 statement by a person authorized by the party to make a 13 statement concerning the subject. I was asking her what 14 reports she had received from the people in the prison who are 15 in charge of this process. We have learned that this is a 16 person who coordinates the delivery of the SAMs -- 17 THE COURT: 801 -- 18 MR. TIGAR: I am sorry, your Honor, (d) also. Not 19 authorized. It's 801(d)(2)(d). I apologize, your Honor. 20 THE COURT: (d)(2)(d)? 21 MR. TIGAR: (d)(2)(d). 22 A second point, your Honor, is, look, the hearsay is 23 not claimed to be unreliable and Chambers against Mississippi 24 says, you know, basically somewhere beyond the rule book I get 25 to do this I think. That is my respectful submission. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2827 46USSAT3 Christenson - cross 1 THE COURT: Mr. Dember. 2 MR. DEMBER: Your Honor, what was reported to Ms. 3 Christenson is alleged to be a statement made by a correction 4 officer who heard a claim from Rahman. So there are two levels 5 of hearsay here and Mr. Tigar hasn't addressed the first. It's 6 double hearsay for that purpose. 7 THE COURT: You are welcome to check out on the 8 computer, but my recollection is that the Second Circuit says 9 in Yldiz that government agents are not agents for purposes of 10 hearsay; that the party opponent is the government and 11 government agents are not agents for purposes of the hearsay 12 rule, and so she is reporting on what someone else said and we 13 don't reach the next stage of Sheikh Abdel Rahman saying to the 14 guard who then says to the witness something. 15 MR. TIGAR: As to the Sheikh Abdel Rahman hearsay that 16 is not offered for the truth. The fact is he made a report as 17 to that. Then I won't any more insist on my view of the Second 18 Circuit and I will -- 19 THE COURT: Check it. 20 MR. TIGAR: I will check, your Honor, but, as I say, 21 we have been around this before on GAF and also on Salerno. 22 THE COURT: The Court of Appeals draws a distinction 23 between statements in court and does that in Yldiz itself, puts 24 to one side Salerno, GAF, and then talks about agents of the 25 government outside of court. So you are welcome to take ten SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2828 46USSAT3 Christenson - cross 1 minutes, check it out. 2 MR. TIGAR: I don't need ten minutes. I don't want 3 ten minutes. If that is the law of the case and this is not 4 that important for me because, as I say, the hearsay I would 5 think there can be no reasonable question of its reliability 6 and Chambers against Mississippi says that with respect to the 7 defense seeking to offer evidence in exercise of its rights, 8 then the court should receive it provided there is some showing 9 of reliability, and we remember the facts of Chambers. 10 THE COURT: In Chambers the hearsay was a level 11 beyond, and importance beyond this comment from the guard. So 12 if it's a matter of importance you are welcome to brief it. I 13 would even call the witness back. You all have access to the 14 case law. You are welcome to check it now. The witness may 15 even be here over lunch and you can check it further. But if 16 it's not a matter of that significance -- 17 MR. TIGAR: Your Honor sustained the objection to the 18 question? 19 THE COURT: Yes, for the reasons I said. But you are 20 welcome to continue to argue it and I welcome you to check it 21 out. 22 Okay. 23 MR. TIGAR: I will, your Honor, but I don't need to 24 get into an argument after the court has ruled. The court has 25 ruled; the court disagrees, fine. We will go forward. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2829 46USSAT3 Christenson - cross 1 The next question, then, is in her capacity as a 2 paralegal or as a documents person, did she ever receive and 3 store reports, and one of her jobs is receiving and storing 4 reports of inmate complaints. I can ask her that, can I not? 5 In her office does she have reports of inmate complaints? If I 6 went there could I find them? 7 THE COURT: That is fine. 8 MR. TIGAR: I don't want to get into another thing 9 that would take the jury out. 10 THE COURT: Okay. 11 MR. TIGAR: Because these things do exist and we will 12 prove them up in our case, your Honor. 13 THE COURT: Okay. 14 See you shortly. 15 (Recess) 16 (In open court; jury not present) 17 THE COURT: Please be seated. 18 Are we read ready to begin in the jury? 19 MR. TIGAR: One more question, your Honor. I would 20 like to ask the witness if complaints were reflected in the log 21 book, if she remembers any of the contents of those. That 22 would be simply more of the same that we have seen. 23 THE COURT: I have no problem with that. It's an 24 exhibit in evidence. 25 MR. TIGAR: Not in the portions admitted but in other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2830 46USSAT3 Christenson - cross 1 portions that we have seen that she remembered. 2 THE COURT: I have no problem with that. 3 MR. TIGAR: Mr. Dember is looking at a couple of 4 exhibits we intend to offer. I don't know if he intends to 5 offer or not. I just had them copied at the break. 6 MR. DEMBER: Your Honor, are you waiting for me to 7 respond to the reference -- 8 THE COURT: Yes. 9 MR. DEMBER: If the question is merely have you ever 10 seen complaints made or indicated in the log book that were 11 made which by Mr. Abdel Rahman -- 12 THE COURT: Right. 13 MR. DEMBER: I have no objection to that, your Honor. 14 With respect to the two exhibits Mr. Tigar wants to 15 offer up, they are essentially the same exhibit, I believe. We 16 do have objections to them. I don't know if your Honor has 17 been provided with a copy of those exhibits. They are LS14 and 18 LS15. 19 MR. TIGAR: May I approach, your Honor? I would be 20 happy to hand them up. 21 THE COURT: Sure. 22 MR. TIGAR: As the court can see, these were documents 23 originated by the witness. 24 MR. DEMBER: This is 3500 material for the witness, 25 your Honor, that were turned over. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2831 46USSAT3 Christenson - cross 1 Your Honor, in each of these exhibits, and they are 2 pretty much identical documents, the last page of each of the 3 proposed exhibit is a letter apparently dictated by Mr. Abdel 4 Rahman to his attorneys and the content is rank hearsay. So 5 for that reason alone we object to it. 6 MR. TIGAR: If your Honor please, shall I respond to 7 the hearsay objections on page 3? 8 THE COURT: I am reading. 9 MR. TIGAR: Thank you. 10 (Pause) 11 THE COURT: All right. 12 MR. TIGAR: May be be heard now, your Honor? 13 THE COURT: Yes. 14 MR. TIGAR: The first two pages we don't see an 15 objection to. This letter, this dictated letter, was during a 16 time when the government had a FISA court order to intercept -- 17 and they did intercept -- all attorney-client communications. 18 They intend to play many, many of those attorney-client 19 communications to this jury. When they do so, the fact that 20 this inmate wrote a letter in which he said, "gee, I have got 21 these problems, I would like you to deal with them," would, in 22 our respectful view, be admissible under Rule 106 if nothing 23 else. 24 The reason I am offering it now is that now we have 25 the witness here who can tell us what it is. If she goes away SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2832 46USSAT3 Christenson - cross 1 and I don't have a chance to put these in, I will at the time 2 they begin playing those conversations make my 106 objection, 3 ask that she be brought back, and all the rest of it. That is 4 Part 1. That is the efficiency argument. 5 The only hearsay matter that could possibly be 6 considered here as we wish we had the sheikh here to be cross 7 examined is prisoners are treated like monsters. A jury can 8 easily obey the instruction that they shouldn't take that as 9 the truth. They have had plenty of testimony from Mr. 10 Fitzgerald that the man exaggerates. 11 With with respect to the others I would like to ask 12 you I suggest that is only my opinion, I am appreciative. 13 These are statements of opinion, mental condition. They are 14 statements of intention. That is to say, they are classically 15 the kinds of things that were admissible before 803(1), (2) and 16 (3) were enacted, and thereafter. That is to say, they are 17 admissible irrespective of the declarant. 18 Apparently these are documents, which were made and 19 kept in the ordinary course of the business of this institution 20 at that time, and it was in the ordinary course of business 21 that they make and keep them. Alternatively, if the witness 22 felt that she had to send these on they are reports pursuant to 23 a duty imposed by law which are offerable at defendant's 24 request under 803(a). 25 THE COURT: Mr. Dember, is there an objection to pages SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2833 46USSAT3 Christenson - cross 1 1 and 2? 2 MR. DEMBER: No, your Honor. In fact, that is 3 consistent with the SAMs which are in evidence, your Honor. 4 Any mails going out, sent out by Mr. Abdel Rahman, had to be 5 reviewed, as there has been testified about, by officials 6 before it could be mailed. 7 MR. TIGAR: I can't hear you. 8 MR. DEMBER: I am saying we have no objection to pages 9 1 and 2. They are consistent with the SAMs regulations and 10 restrictions. 11 With respect to the third page, your Honor, the 106 12 argument fails. He is offering the entire document. 106 13 doesn't apply to other statements made at other times by other 14 parties or even by this defendant. It's a statement in and of 15 itself, so 106 is totally irrelevant. 16 To the extent that Mr. Tigar thinks he needs to recall 17 this witness in his case to prove something, he is welcome to 18 do that, your Honor. The efficiency argument doesn't work 19 because apparently or perhaps this document was sent to three 20 lawyers -- Mr. Clark, who Mr. Tigar represents, will be 21 testifying in this case, Mr. Jabara, Mr. Schilling, and Ms. 22 Stewart, who also Mr. Tigar represents, will be testifying in 23 this case. 24 To the extent it could be relevant, your Honor, it has 25 no relevance in terms of any state of mind of this witness. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2834 46USSAT3 Christenson - cross 1 has nothing to do with it. In terms of the regular course of 2 business, your Honor, I believe this witness will testify this 3 is probably the only time that she ever had to review an 4 outgoing piece of mail by Mr. Rahman. I believe she testified 5 earlier -- she is here, maybe you want her excused -- that she 6 doesn't recall any outgoing mail being reviewed of Mr. Rahman. 7 But it's not business records, your Honor, it's a personal 8 letter by Mr. Rahman with lots of hearsay, prejudicial hearsay 9 that he attempts to send to his lawyers. 10 THE COURT: All right. The witness doesn't have to be 11 examined with respect to the contents of the third page on both 12 documents. Pages 1 and 2 are admitted without objection and I 13 reserve on page 3. So page 3 shouldn't be admitted at this 14 time or displayed to the jury. 15 MR. TIGAR: I will simply lay the document in front of 16 the witness, your Honor. I will lay -- well, if there is no 17 objection to it being received in accordance with the court's 18 direction, I will leave it at that. I won't mention it, 19 publish it, do anything with it. We will move on to something 20 else. 21 THE COURT: All right. 22 MR. TIGAR: I don't want objection to that. 23 THE COURT: If pages 1 and 2 are admitted and if you 24 wanted to explore that with her you are welcome to do that and 25 it's only page 3 that I have reserved on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2835 46USSAT3 Christenson - cross 1 MR. TIGAR: Then I will explore pages 1 and 2. 2 Thank you, your Honor. 3 Now, to save time may I just put them in front of the 4 witness now and she can have them to save time? 5 THE COURT: You may approach. 6 MR. TIGAR: Thank you. 7 THE COURT: All right. 8 Anything else? 9 Let's bring back the jury. 10 (In open court; jury present) 11 THE COURT: Please be seated all. 12 The witness is on the stand. 13 Mr. Fletcher. 14 THE CLERK: Ms. Christenson, you are reminded you are 15 still under oath. 16 THE WITNESS: Yes. 17 THE COURT: All right, when we left there was an 18 objection and the objection is sustained. 19 Mr. Tigar, you may proceed. 20 MR. TIGAR: Thank you, your Honor. 21 Q. Ms. Christenson, we were talking about the conditions. The 22 door to Sheikh Abdel Rahman's cell, was that an iron door with 23 a window or what did the front of it look like, the front of 24 the cell? 25 A. The front of his cell, it was just a big door. Yes, it did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2836 46USSAT3 Christenson - cross 1 have a window on it. 2 Q. And were there bars? Was there any other way to look out 3 other than with that window? 4 A. There was a smaller window that was in one of the sides 5 that faced into the hallway of that particular unit. 6 Q. Of course, he being blind would not be looking out but, I 7 mean, the guard that was in there would, right? 8 A. Correct. 9 Q. Did he have a radio, do you know? 10 A. I don't know if he had one. 11 Q. Do you know whether or not -- did he leave his cell for 12 religious services? 13 A. For a period of time. 14 Q. And then that didn't happen anymore after a time, correct? 15 A. Correct. 16 Q. And that was because there was some dispute about what had 17 happened to the service or do you know why it stopped? 18 A. I know that there was some problems. What the problems 19 were specifically, I don't. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2837 46UMSAT4 Christenson - cross 1 Q. You don't have any personal knowledge of that? 2 A. Right. 3 Q. But at some point it stopped? 4 A. Right. 5 Q. Now, did he have religious visitation from outside, that 6 is, did a Muslim chaplain type person come to visit him? 7 A. Not to my knowledge. 8 Q. Now, do you have a practice at your prison where chaplains 9 from outside can visit inmates of particular faiths? 10 A. Yes. 11 Q. To your knowledge, that didn't happen to him, correct? 12 A. To my knowledge, that's correct. 13 Q. Do you have any personal knowledge as to whether he ever 14 requested a Bible in Arabic? 15 A. I don't know. 16 Q. And do you have any personal knowledge of how telephone 17 calls to his wife were handled? 18 A. Yes. 19 Q. And how often was he permitted to call his wife? 20 A. There was once a month. 21 Q. For how long a time? 22 A. 15 minutes. 23 Q. In that 15 minutes that he could call his wife once a 24 month, someone who spoke Arabic would be there, is that right? 25 Would there be someone who spoke Arabic in your end involved in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2838 46UMSAT4 Christenson - cross 1 the call? 2 A. Personally or physically, no. 3 Q. Nonphysically. 4 A. We had a tape recording prepared by our translator that was 5 played at the beginning of each telephone call. 6 Q. Now, do your telephones at the prison have signs on them, 7 the phones that inmates use, saying, this telephone will be 8 monitored? 9 A. Yes. 10 Q. But they are in English, right? 11 A. In English and in Spanish, I believe. 12 Q. And, of course, a blind person couldn't read those, right? 13 A. Correct. 14 Q. But you would have those tape recorded? 15 A. Yes. 16 Q. Did the prison have a practice of recording the actual 17 telephone call between the prisoner and the prisoner's wife? 18 A. Yes. 19 Q. Did you have a practice of sending those tapes to the 20 lawyers for the prison? 21 A. To our agency attorney? 22 Q. No. To his lawyer, to Ramsey Clark and Ms. Stewart. 23 A. No. 24 Q. Those are your records, right? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2839 46UMSAT4 Christenson - cross 1 Q. For your purposes? 2 A. Correct. 3 Q. And to your knowledge, none of his lawyers ever received a 4 copy of any of those recordings of the calls with his wife, is 5 that right? 6 A. To the best of my knowledge, that's correct. 7 Q. Now, when we were looking at some of those photographs of 8 the room, I just want to ask about one of them. 9 I'm placing up here and I am going to zoom so we can 10 see the whole thing. 11 THE COURT: Could you identify the exhibit? 12 MR. TIGAR: I'm sorry? 13 THE COURT: Identify the exhibit. 14 MR. TIGAR: I'm sorry, your Honor. This is Government 15 363. There it comes, Government 363 in evidence. 16 Q. At the bottom, that's the date you took the picture? 17 A. Correct. 18 Q. Does your camera have one of those little deals that prints 19 it out? 20 A. The date? 21 Q. Yes, the date. 22 A. Yes. 23 Q. You notice that there are Venetian blinds at the top of 24 these windows where I'm putting my finger, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2840 46UMSAT4 Christenson - cross 1 Q. When the legal visits would take place in this room, were 2 the blinds open or closed? 3 A. Open. 4 Q. Was that a requirement of the prison, that the blinds be 5 open? 6 A. Yes. 7 Q. Now, on the opposite side you have an office that 8 physically looks something like this that has windows and so 9 on? 10 A. Yes. 11 Q. Do you keep your blinds open or closed? 12 A. I do both. It depends on the day. 13 Q. Sometimes in your work you have jobs you're working on that 14 other people aren't supposed to look at, right? 15 A. Yes. 16 Q. And you take care to make sure that if it is none of their 17 business they don't look at it, right? 18 A. Correct. 19 Q. And sometimes to do that you close the blinds, correct? 20 A. True. 21 Q. And sometimes you put your legal files in folders or 22 drawers where other people can't get at them, right? 23 A. True. 24 Q. That's one of the things that you're instructed to do as 25 part of your job, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2841 46UMSAT4 Christenson - cross 1 A. Yes. 2 Q. Now, I wanted to look at some of these log sheets to just 3 take a few minutes and get an idea about the daily life of the 4 prison so we can have a picture. 5 MR. TIGAR: May I have a moment, your Honor? 6 THE COURT: Yes. 7 Q. I am going to place on the overhead what's been received in 8 evidence as Government Exhibit 333, and I am going to direct 9 your attention to this entry that says 1830 to 1900, all right? 10 A. Okay. 11 Q. And that appears to be from July 31, 2000, correct? 12 A. Correct. 13 Q. And it says: Inmate something. Can you read that? 14 A. No, not very well. 15 Q. And then the next sentence says: Room cleaned? 16 A. Yes. 17 Q. And then it says: Removed paper from inside of door that 18 was covering voice box. 19 Was there a voice box in his cell? 20 A. It is in the door. 21 Q. And what's it for? What does it do? 22 A. It just allows people to communicate easier so they can 23 actually hear through the door. 24 Q. So the door is metal and is it like one of those things 25 where you go to the movies and you buy a ticket and you say, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2842 46UMSAT4 Christenson - cross 1 want two tickets to the show? What is it like? 2 A. If you would look at it, it looks like little holes. 3 Q. Just a hole? 4 A. Yes. 5 Q. And then it says: He had used chocolate to stick it up. 6 Is that what it says? 7 A. Yes. 8 Q. Is this a report that the inmate had taken some chocolate 9 and stuck something to his door? 10 A. It appears to be. 11 Q. Now, here is one, jumping to Exhibit 334, it says: 12 Prisoner wandering back and forth chanting, correct? 13 A. Yes. 14 Q. And then later on down here we get: Lotion to feet, put 15 out garbage, correct? 16 A. Yes. 17 Q. And then later on Rahman is praying, stated everything is 18 okay, right? 19 A. Right. 20 Q. Here is the second page of Government Exhibit 339, and 21 that's from October 31, 2000, correct? Inmate Rahman refused 22 his food tray. I requested that he take down the cardboard off 23 his cell window, and he yelled no, correct? 24 THE COURT: I'm sorry. 25 Q. Is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2843 46UMSAT4 Christenson - cross 1 THE COURT: One moment. Your question talked about 2 October 31. 3 MR. TIGAR: Yes. I'm sorry. Thank you. 4 Q. Is that October 21 or 31? 5 A. I believe it is October 21. 6 Q. Thank you. 7 Did I read the rest of it correctly? 8 A. Yes. 9 Q. Now, is it part of your responsibility to keep track of 10 disciplinary matters concerning inmates? 11 A. My responsibility, no. 12 Q. Do you have any responsibility for logging or keeping track 13 of the results of disciplinary actions with respect to inmates? 14 A. I do not. 15 Q. Do the logbooks that you have -- I'm not talking about the 16 pages you brought -- did they keep track of requests to see the 17 warden? 18 A. They may. I don't know for certain. 19 Q. If the warden visited the inmate, would that visit be in 20 the logbook? 21 A. Yes. 22 Q. Because that's a part of the procedure, correct? 23 A. Correct. 24 Q. But none of the sheets that you brought with it show us 25 those visits, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2844 46UMSAT4 Christenson - cross 1 A. I don't know if they do or not. 2 Q. You don't remember. The point is, other than the one log 3 sheets that were lost in that fire, the one that got water 4 damaged, somebody could go there and look and see if there are 5 any warden visits in there, right? 6 A. The log sheets that were lost in the fire were visitor 7 logs. 8 Q. So the logbooks about the cell, you got all of those, 9 right? 10 A. Correct. 11 Q. But if there were any warden visits, then in the ordinary 12 course of a business day they would be in those log sheets, 13 correct? 14 A. Right. 15 Q. I wanted to ask you, finally, final one of these. I'm 16 placing up Government 353 on the projector. I'm looking at the 17 entry of 1/4/02. Can you tell us what that says? 18 A. 1/4/02 says: Patient CS163, patient accepted bagel, I 19 believe, and milk. Ted's -- I can't read the last word. 20 Q. Ted's off? 21 A. Ted's off maybe. Garbage emptied. VSS, insulin and PO 22 medication given. Patient cooperative. 23 Q. Does it say: Will call? 24 A. Will call plumber for stool. 25 Q. Do you have any idea what that means? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2845 46UMSAT4 Christenson - cross 1 A. I have no idea. 2 Q. Do you know who made the entry? 3 A. I don't know whose signature that is. 4 Q. Then just two questions about the SAM. The first, 5 Government 321, you showed us -- we looked at that and that is 6 the signature of the translator, is that correct, that I'm 7 pointing to? 8 A. Correct. 9 Q. Ms. Christenson, do you have in front of you what's been 10 marked as LS-14 and LS-15? 11 A. Yes. 12 Q. And looking, please, only at pages 1 and 2 of those, page 1 13 of each, are those memoranda that you prepared? 14 A. They are fax cover sheets, yes. 15 Q. And looking at sage 2 of e-mail, did you participate in the 16 preparation of those letters? 17 A. These letters were prepared by Mary Benning, who was the 18 attorney advisor at the institution at the time. 19 Q. She was your colleague? 20 A. She was my supervisor. 21 Q. And you recognize your signature? 22 A. Yes, I do. 23 MR. TIGAR: Your Honor, I offer LS-14 and LS-15 on the 24 understanding that only pages 1 and 2 of each would be received 25 at this time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2846 46UMSAT4 Christenson - cross 1 MR. DEMBER: No objection, your Honor. 2 THE COURT: No objection. Pages 1 and 2 of LS-14 and 3 LS-15 received in evidence. 4 (Defendant's Exhibits LS-14 and LS-15 received in 5 evidence) 6 Q. I am going to put up LS-15 first and zoom out -- that's a 7 fax cover sheet to Pat Fitzgerald, correct? 8 A. Correct. 9 Q. And you knew that Mr. Fitzgerald was an Assistant United 10 States Attorney in New York, right? 11 A. Right. 12 Q. Had you spoken to him or did you know him from before this? 13 A. I didn't know Mr. Fitzgerald prior to Mr. Abdel Rahman 14 coming to FMC Rochester. 15 Q. Once Mr. Abdel Rahman got there back in 1998, you got to 16 know Mr. Fitzgerald? 17 A. Over the telephone. 18 Q. You never met him in person? 19 A. I have never met him personally. 20 Q. Is it fair to say that your conversations with him were 21 about his concerns related to Omar Abdel Rahman? 22 A. Note. 23 Q. And they were professional deals that you had with him, you 24 in your capacity working with legal documents and he as a 25 person who had worked on the Rahman case, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2847 46UMSAT4 Christenson - cross 1 A. Correct. 2 Q. Now, in this letter you're saying -- could you just read 3 what you wrote to Mr. Fitzgerald? 4 A. Mr. Fitzgerald, enclosed is a copy of the letter inmate 5 Rahman recently dictated to his attorneys. This is being 6 provided to you for your review prior to sending it to Rahman's 7 attorneys. If you have any objections to forwarding this 8 letter to Rahman's attorneys, please notify us. 9 Thank you for taking the time to review the attached. 10 I understand you are in trial and the demands on your time are 11 great. If we can assist you in any way, please contact us. 12 Kara. 13 Q. Did you ever hear back from Mr. Fitzgerald? 14 A. I personally did not. 15 Q. And I am going now to put up LS-14 in evidence. And this 16 is the same text, but addressed to a man named David Kelley, 17 correct? 18 A. Correct. 19 Q. And did you ever hear back from him? 20 A. I personally did not. 21 Q. Do you know, looking at page 2 of LS-14, this is a letter 22 to Mr. Ramsey Clark, correct? 23 A. Yes. 24 Q. Now, what is your understanding about this letter? Was 25 this letter going to be SAMs or not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2848 46UMSAT4 Christenson - cross 1 A. This letter signed by Mary Benning? 2 MR. DEMBER: Objection, your Honor, relevance. 3 THE COURT: Overruled. 4 Q. Yes, this letter. 5 A. I don't know if it was going to be signed or not. 6 Q. Did you understand that the purpose of your fax was to find 7 out whether or not to send this letter? 8 A. Yes. 9 Q. Did you have anything further to do in your official 10 capacity with what's reflected in the exhibits that you have 11 just looked at? 12 A. I put them on the fax machine. 13 Q. So the answer -- you did not, right? 14 A. I did not. 15 MR. TIGAR: May I have just a moment, please, your 16 Honor? 17 THE COURT: Sure. 18 MR. TIGAR: Just a couple more. 19 Q. The usual Sheikh Abdel Rahman was the only person you had 20 in your facility at that time that was subject to these Special 21 Administrative Measures, correct? 22 A. Correct. 23 Q. So the usual way that lawyer -- if another one of your 24 inmates wanted to send a letter to the lawyer, how would they 25 do it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2849 46UMSAT4 Christenson - cross 1 A. They would put that particular piece of correspondence in a 2 mailbox on the unit that's marked legal mail. 3 Q. Would it then go to the lawyers without being subjected to 4 review by others? 5 A. They are looked for contraband only and then yes. 6 Q. So only for contraband, not for content? 7 A. Exactly. 8 Q. This transaction in your experience was unusual in the 9 sense that you all were looking at content, correct? 10 A. We were following the rules of the SAM. 11 Q. Now, you were looking at content according to the rules of 12 the SAM? 13 A. Correct. 14 Q. Did you have any other prison inmate in your facility at 15 that time who were blind? 16 A. I don't remember if we did or not. 17 Q. And so did you have a practice or procedure with respect to 18 blind inmates about how they could dictate letters and how they 19 would be assisted? Was there any procedure that you knew about 20 that? 21 A. I don't know. 22 MR. TIGAR: Thank you, Ms. Christenson. No further 23 questions. 24 MR. RUHNKE: May I, your Honor? 25 THE COURT: Yes. Mr. Ruhnke, you may examine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2850 46UMSAT4 Christenson - cross 1 MR. RUHNKE: Thank you. 2 May I speak with the government a moment, your Honor? 3 THE COURT: Sure. 4 CROSS-EXAMINATION 5 BY MR. RUHNKE: 6 Q. Ms. Christenson, good morning. 7 A. Good morning. 8 Q. Good afternoon, actually. 9 You have been at the medical center for approximately 10 how many years, 12? 11 A. Correct. 12 Q. You know there is another Federal Medical Center in 13 Springfield Missouri, correct? 14 A. Yes. 15 Q. And you knew that Abdel Rahman had been transferred from 16 Springfield to Rochester, is that correct? 17 A. Correct. 18 Q. And had you been in contact with a man named Dennis Bitz at 19 Springfield? 20 A. Regarding Mr. Abdel Rahman? 21 Q. Yes. 22 A. Me, personally, no. 23 Q. Do you know that Mr. Bitz is an attorney at the 24 Springfield, Missouri facility? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2851 46UMSAT4 Christenson - cross 1 Q. Did there come a time when he received a subpoena for 2 documents relating to Abdel Rahman? 3 A. Yes. 4 Q. Is it true that while he was at your institution Sheikh 5 Rahman had approximately 14 attorney visits? 6 A. I don't remember what the specific number was. 7 MR. RUHNKE: May I approach the witness and show her a 8 document? 9 THE COURT: Yes. 10 Q. I am going to show you a document that's marked 3510B for 11 identification. And would you just look at the document for me 12 and see if you recognize it? 13 A. Yes. 14 Q. Now, is that, in fact, a document that you had prepared? 15 A. Correct. 16 Q. Looking at the document, does that refresh your 17 recollection that Mr. Rahman had received approximately 14 18 attorney visits while at Rochester? 19 A. That's what it says, yes. 20 Q. And does that sound approximately correct? 21 A. Yes. 22 Q. And those included attorney Ramsey Clark, correct? 23 A. Correct. 24 Q. Attorney Lynne Stewart, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2852 46UMSAT4 Christenson - cross 1 Q. Attorney Abdeen Jabara, correct? 2 A. Correct. 3 Q. And FBI approved interpreter Mohammed Yousry, correct? 4 A. Correct. 5 Q. I am going to turn your attention to something else. I am 6 going to put on the screen a document that I have marked 363A, 7 which is a version of the document you have seen before. And 8 I've drawn on there, in an attempt to figure out where the 9 round table was, a depiction of the round table. 10 Do you see that on the document? 11 A. Yes, I do. 12 Q. And not commenting on the artwork, is that about where the 13 table was? 14 A. Yes. 15 Q. And I think you said that the edge of the circumference of 16 the table was about 12 inches from that glass window? 17 A. Correct. 18 Q. Is that a single-pane glass window? 19 A. Yes. 20 Q. Is your office right across from there? 21 A. Yes. 22 Q. Did you ever see one of these visits while they were going 23 on? 24 A. Yes. 25 Q. And you would see the attorney, Sheikh Rahman, and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2853 46UMSAT4 Christenson - cross 1 interpreter, Mr. Yousry, correct? 2 A. Correct. 3 Q. Although you have told us you don't recognize Mr. Yousry? 4 A. Correct. 5 Q. I'll show you another photograph, 366A. 6 THE COURT: Did you want to offer 363A? 7 MR. RUHNKE: I'll offer 363A. 8 THE COURT: As a demonstrative? 9 MR. RUHNKE: Yes, your Honor. 10 MR. DEMBER: No objection, your Honor. 11 THE COURT: Ladies and gentlemen, 363A is received in 12 evidence as a demonstrative exhibit to help you understand the 13 testimony of the witness in explaining what is depicted in the 14 photo. It obviously has some hand drawing on the photo. 15 That's why it is not simply the photograph. It is a 16 demonstrative exhibit to help you understand the witness's 17 testimony. 18 (Government's Exhibit 363A received in evidence) 19 MR. RUHNKE: Your Honor, I should have asked for 20 permission before I displayed that, but the government has no 21 objection to either exhibit. 22 I would like to display 366A, if the government hasn't 23 no objection. 24 MR. DEMBER: No objection, your Honor. 25 Q. Looking at 366A, again, one of the photographs that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2854 46UMSAT4 Christenson - cross 1 took two weeks ago or so, and it shows what you refer to as the 2 AW's conference room, correct? 3 A. Correct. 4 Q. Again, the table was approximately -- the round table was 5 approximately in that position? 6 A. Approximately, yes. 7 Q. These visits -- 8 MR. RUHNKE: And we will offer 366A, your Honor. 9 THE COURT: No objection. Government Exhibit 366A 10 also received as a demonstrative exhibit. 11 (Government's Exhibit 366A received in evidence) 12 Q. These visits, as you can tell from looking at your record, 13 are often quite lengthy, correct? 14 A. Yes. 15 Q. Several hours, three, four, sometimes five hours long? 16 A. Correct. 17 Q. And if one of the attorneys, for example, had to use the 18 bathroom while they were there, was there a bathroom facility 19 if you walked out the door and walked left down that corridor 20 in the photograph and then sort of left again? Is that where 21 the bathroom was located? 22 A. Yes. 23 Q. If you walked out of that door and walked to the right, was 24 there kind of a staff room with vending machines in that area? 25 A. If you walked out the door and went to the right and then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2855 46UMSAT4 Christenson - cross 1 took a quick left, yes. 2 Q. And the attorneys were permitted to go to the vending 3 machines and buy water or drinks or food that was sold there, 4 correct? 5 A. Yes. 6 Q. And to give anything they could purchase there to the 7 inmate if the inmate wanted it. That was permission to you, 8 correct? 9 A. I believe so. 10 MR. TIGAR: Thank you. I have no more questions. 11 MR. PAUL: We have no questions of this witness. 12 MR. DEMBER: Just a few, your Honor. 13 THE COURT: Yes. 14 Mr. Dember, you may examine. 15 REDIRECT EXAMINATION 16 BY MR. DEMBER: 17 Q. Ms. Christenson, do you know during the time that Mr. Abdel 18 Rahman was at the facility in Rochester whether you had other 19 Arabic-speaking inmates at the facility? 20 A. I don't know if for sure if we did or did not. 21 Q. Now, I believe you were asked about Mr. Abdel Rahman's 22 cell, is that correct? 23 A. Yes. 24 Q. And he was in his cell alone, he had no other person in the 25 cell with him? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2856 46UMSAT4 Christenson - redirect 1 A. Correct. 2 Q. Were there other inmates at the institution who had 3 individual cells as well? 4 A. Yes. 5 Q. And were there cells similar to Mr. Abdel Rahman's to the 6 extent that they also had toilets in them? 7 A. Yes. 8 Q. And were those toilets visible to the guards or correction 9 officers who would monitor the hallways and cells themselves? 10 A. Yes. 11 Q. And was the reason for that security reasons? 12 A. Yes, it is. 13 Q. Ms. Christenson, I am going to show you -- I am going to 14 play with you, with your Honor's permission, Exhibit 366A. 15 THE COURT: All right. 16 Q. Do you see that? 17 A. Yes. 18 Q. On the big screen? 19 A. Yes. 20 Q. And do you see where the table is drawn in? 21 A. Yes. 22 Q. Now, was the table as it was placed, as you remember, was 23 it precisely in that position, or was it more underneath that 24 vent and sprinkler head, sort of in the middle of the 25 photograph on the ceiling? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2857 46UMSAT4 Christenson - redirect 1 A. It was not precisely in that position, a little bit more 2 towards the middle. 3 Q. Towards the middle of what? 4 A. Of the picture. Closer to underneath the vent in the 5 sprinkler hood. 6 Q. By the way, was the table itself -- where was it in 7 relation to the big window in the right-hand side on 366A? 8 A. It was in front of me. 9 Q. If one was looking through the window, could one see the 10 entire table, look at the entire table? 11 A. Yes. 12 Q. Now, I believe it was pointed out that both the windows in 13 the conference room which are, again, depicted on Exhibit 366A, 14 have blinds for each window? 15 A. Yes. 16 Q. I believe you testified on cross-examination that the 17 blinds to the window that were in front of the table, those 18 blinds were pulled? 19 A. Correct. 20 Q. You were present during at least some of those visits, 21 correct? 22 A. Yes. 23 Q. What were the reason that the blinds were pulled? 24 A. So the correction staff could visually monitor those visits 25 for security visits. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2858 46UMSAT4 Christenson - redirect 1 Q. They would monitor those from a hallway? 2 A. Yes. 3 Q. During Mr. Abdel Rahman's visits with his attorney, was 4 anyone else in the conference room besides Mr. Abdel Rahman, 5 his attorney, and Mr. Yousry? 6 A. No. 7 Q. By the way, did other inmates get the opportunity to meet 8 with their attorneys in the associate warden's conference room? 9 A. Not generally. 10 Q. Is there a separate location where other inmates would meet 11 with their attorneys? 12 A. Yes. We have a visiting room and within that visiting room 13 there is a room for attorney-client visits. 14 Q. What was the reason why Mr. Abdel Rahman got to meet with 15 his attorneys in that room? 16 A. The SAM require that he not be around other inmates. 17 MR. DEMBER: May I have a moment, your Honor? 18 THE COURT: Yes. 19 Q. Ms. Christenson, did any of the prison guards who monitored 20 those meetings speak Arabic? 21 A. No. 22 Q. Did you have any guards in the facility who spoke Arabic? 23 A. No. 24 MR. DEMBER: Thank you. I have nothing further, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2859 46UMSAT4 Christenson - redirect 1 MR. TIGAR: One question. 2 THE COURT: All right. Limited to redirect. 3 RECROSS EXAMINATION 4 BY MR. TIGAR: 5 Q. You said that there was nobody in that room except for 6 Sheikh Abdel Rahman, his lawyers and the translator. On May 7 the 19th and 20th of 2000, there was also a video monitor that 8 could observe the lawyer-client meeting, correct? 9 A. Correct. 10 Q. That was in your office? 11 A. The monitor was, yes. 12 Q. Did you watch the lawyer-client meeting in your office? 13 A. I did not. I had my own work to do. 14 Q. Did you see the other people watching it? 15 A. I saw an FBI agent. 16 MR. TIGAR: Thank you. 17 MR. RUHNKE: Just one, your Honor. 18 THE COURT: All right. Limited to redirect. 19 RECROSS EXAMINATION 20 BY MR. RUHNKE: 21 Q. To your knowledge, of the 14 visits that took place at 22 Rochester, how many were actually monitored by the FBI? 23 A. I don't know. I don't know the specific number. 24 Q. And the monitoring began approximately when? 25 A. I don't remember the date when it started. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2860 46UMSAT4 Christenson - recross 1 MR. RUHNKE: Thank you very much. 2 THE WITNESS: You're welcome. 3 MR. DEMBER: Nothing further, your Honor. 4 THE COURT: The witness is excused. You may step 5 down. 6 (Witness excused) 7 THE COURT: The government can call its next witness. 8 MR. BARKOW: Your Honor, the government calls Nanette 9 Schumaker. 10 Your Honor, may we have a minute to set up some 11 exhibits that I need to set up at the end of the government 12 table? 13 THE COURT: Yes, your Honor. 14 MR. DEMBER: Your Honor, may I step out of the 15 courtroom for just a moment? I'm not asking for any delay. 16 May I step out for a moment? 17 THE COURT: All right. 18 MR. BARKOW: It is going to take a minute. I don't 19 think we need a break. 20 THE COURT: Take a moment before we swear the witness. 21 MR. BARKOW: I think I'm set up, your Honor. 22 THE COURT: Mr. Fletcher. 23 NANETTE H. SCHUMAKER, 24 called as a witness by the Government, 25 having been duly sworn, testified as follows: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2861 46UMSAT4 Christenson - recross 1 THE COURT: Mr. Barkow, you may examine. 2 MR. BARKOW: Thank you, your Honor. 3 DIRECT EXAMINATION 4 BY MR. BARKOW: 5 Q. Good afternoon. 6 A. Good afternoon. 7 Q. Where do you work? 8 A. I work for the Federal Bureau of Investigation. 9 Q. And what is your position there? 10 A. I'm a supervisory special agent. 11 Q. What does that mean? 12 A. That means I have been promoted within the management 13 system. I work at FBI headquarters in Washington, D.C. 14 Q. Agent Schumaker, how long have you been with the FBI? 15 A. 12 years. 16 Q. What year did you start? 17 A. I started in 1992. 18 Q. And where geographically did you start working for the FBI? 19 A. My first office was in Fort Smith, Arkansas, assigned to 20 the Little Rock division. 21 Q. Did you eventually move to the New York field office? 22 A. Yes. In 1997, I transferred to the New York division. 23 Q. And you said previously that you now work in the D.C. 24 headquarters, is that right? 25 A. Correct. I work in FBI headquarters. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2862 46UMSAT4 Schumaker - direct 1 Q. When did you move down there? 2 A. I moved there in December of 2002. 3 Q. And in your current position what do you do, briefly? 4 A. Briefly, I manage a program for all 56 field offices within 5 human intelligence, which is basically citizens that secretly 6 provide information to the FBI. My program specializes in 7 matters of national security. 8 Q. When you were in New York in the New York field office, 9 what was your position and what were your responsibilities 10 there? 11 A. I was a field agent assigned to the joint terrorism task 12 force, and my investigations specialized in Hamas. 13 Q. Did you have other responsibilities aside from your 14 position on that joint terrorism task force? 15 A. Yes. I was also assigned to the evidence response team. 16 Q. What's an evidence response team? 17 A. It is a team of individuals within the FBI that are trained 18 to conduct searches and process crime scenes. 19 Q. What's the difference between conducting a search and 20 processing a crime scene? 21 A. Typically, a crime scene would be something like a 22 kidnapping or a bank robbery that comes up spur of the moment, 23 last minute, and the team is organized to handle that. 24 A search warrant is typically of a residence or 25 business, and it is conducted generally ahead of time. We know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2863 46UMSAT4 Schumaker - direct 1 a week or two before. 2 Q. And when you say processing, I think you used that word for 3 a scene. What does that mean? 4 A. Process the scene would be to oversee the scene, look at 5 it, and collect matters that could be potentially evidence in a 6 court of law. 7 Q. And what was your position or rank or title or what have 8 you in connection with the evidence response team 9 responsibilities you have? 10 A. At that time the New York office had three evidence 11 response teams, and I was an assistant team leader for one of 12 the teams. 13 Q. And what did that mean? 14 A. That meant that in the absence of a team leader or if one 15 particular search had more than one location, I would handle 16 the team. I would be the team leader for that search. 17 Q. Just to be clear, was your work on the evidence response 18 team in addition to and separate and apart from your work on 19 the joint terrorism task force? 20 A. Yes, it was. I actually volunteered to become a member of 21 the evidence response team. 22 Q. During your time with the FBI, have you participated in 23 searches of crime scenes and search warrants? 24 A. Yes, I have. 25 Q. And approximately how many? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2864 46UMSAT4 Schumaker - direct 1 A. Approximately 100 searches. 2 Q. Now, I'd like to direct your attention specifically to 3 April 9 of 2002. Did you conduct a search or searches on that 4 day? 5 A. Yes, sir, I did. 6 Q. Where was that? 7 A. That would be at 249 Hooker Place in Staten Island. 8 Q. And what location or locations did you participate in the 9 search of at that address? 10 A. At that address the apartment we were searching was 11 apartment 2E and an attached garage. 12 Q. And before you went to conduct that search, did you or some 13 member of your team obtain a search warrant? 14 A. Yes. A search warrant was obtained for apartment 2E prior 15 to the search, as well as the attached garage. 16 Q. And ultimately did you or some member of the team obtain an 17 additional search warrant for some other specific item or 18 items? 19 A. Yes. During the search some items were seized which were 20 locked and caused later to be a search warrant obtained for two 21 briefcases, subsequent to our search. 22 Q. Were all of these search warrants signed by a magistrate 23 judge? 24 A. Yes, sir. 25 Q. In what court? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2865 46UMSAT4 Schumaker - direct 1 A. The Southern District of New York. 2 Q. Now, turning to the actual search, approximately when did 3 the search of these premises and these items start and when did 4 it end on that day? 5 A. The search started at approximately 12:30 p.m., and ended 6 some time between 6 and 7 p.m. 7 Q. Who participated in that search? 8 A. That would be myself, Special Agents Kathy Diskin, Darrin 9 Turpin, Anthony Curry, William Glass, and Eileen McCluskey. 10 Q. Aside from your involvement in this search that I'm about 11 to ask you more questions about, have you had any connection at 12 all to this case? 13 A. No, sir. 14 MR. BARKOW: May I approach, your Honor? 15 THE COURT: Yes. 16 Q. Agent Schumaker, I've placed before you what I've marked 17 for identification and provided previously to defense counsel 18 as Government Exhibit 3542E. Could you take a look at that? 19 A. Yes. 20 Q. Do you recognize what that is? 21 A. Yes, sir, I do. 22 Q. What is it? 23 A. This is a rough draft sketch of apartment 2E at 249 Hooker 24 Place. 25 Q. Who prepared that rough draft sketch? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2866 46UMSAT4 Schumaker - direct 1 A. That would have been prepared by Special Agent Kathy Diskin 2 at my request. 3 Q. During that search did you yourself observe or see all 4 parts of that apartment? 5 A. Yes. The apartment was not that big. At one time or 6 another I was in every room of that apartment. 7 Q. Agent Schumaker, does Agent Diskin's sketch, Exhibit 3542E, 8 roughly and fairly and accurately depict the size and location 9 of the rooms in that apartment? 10 A. Yes, it does. It is not necessarily drawn to scale, but it 11 does represent the rooms as they appear. 12 MR. BARKOW: Your Honor, at this point I offer 13 Government Exhibit 3542E. 14 MR. FALLICK: No objection. 15 THE COURT: Government Exhibit 3542E received in 16 evidence. 17 (Government's Exhibit 3542E received in evidence) 18 MR. BARKOW: May we publish it to the jury? 19 THE COURT: Yes. 20 Q. Agent Schumaker, directing your attention to the exhibit 21 before you, can you please describe the layout of the 22 apartment, using this exhibit as a reference point? 23 A. Yes, sir. The main entrance to the apartment was on Hooker 24 Place right here on the street. As you walked out the flight 25 of stairs -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2867 46UMSAT4 Schumaker - direct 1 Q. If I can just interrupt for a second. If you touch the 2 screen you can make marks on the screen, so as you speak, you 3 can make marks and indicate what you're talking about. 4 Please continue. 5 A. I made an indication right there where the square is of 6 where the apartment door is, right at the top of the stairs. 7 As you enter in right immediately in front of you was the 8 bathroom. You walk over to the kitchen and there was a small 9 entranceway, kind of like a storage room where they had some 10 filing cabinets and that type thing. There was then a doorway 11 into the main living area that had like a table, dining room 12 table, a sofa, and then there is a small computer area you can 13 see marked E just off the living room. And you walked back to 14 bedroom F, which is right off the living area, and then there 15 are two bedrooms in the back, G and H. H appeared to be the 16 master bedroom, and G was, it looked like maybe a kid's 17 bedroom. 18 Q. Where in relation to this apartment in reference to the 19 street was the garage that you searched? 20 A. The garage, if you come back down, straight down the stairs 21 to Hooker Place and made an immediate right, the garage was 22 right here on the corner of Hooker Place and this side street. 23 Q. About how far was the garage from the stairway to the 24 apartment? 25 A. Approximately 10 to 20 feet. Not very far. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2868 46UMSAT4 Schumaker - direct 1 MR. BARKOW: May I approach, your Honor? 2 THE COURT: Yes. 3 Q. Agent Diskin, I have placed before you what I have marked 4 for identification and previously produced to defense counsel 5 as Government Exhibits 2082A through 2082EE. Could you take a 6 look through those and let me know when you're done? 7 A. Sure. Schumaker, by the way. 8 Q. What did I say? 9 A. Diskin. 10 Q. Sorry. 11 A. That's okay. 12 Q. Agent Schumaker, can you look at those and let me know when 13 you're done. 14 A. Sure. I do recognize these photographs. I just want to 15 make sure that everyone in here is one that I recognize. Okay. 16 Q. Agent Schumaker, do you recognize all of the items I have 17 placed before you, Government Exhibits 2082A through 2082EE? 18 A. Yes. 19 Q. What are they? 20 A. These are photographs that would have been taken at the 21 time of the search at apartment 2E and the garage. 22 Q. You have reviewed these now and previous to your testimony? 23 A. Yes, I have. 24 Q. Do these photos fairly and accurately depict what the 25 apartment and the garage looked like and how they appeared at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2869 46UMSAT4 Schumaker - direct 1 the time and date of the search? 2 A. Yes, sir, they do. 3 MR. BARKOW: Your Honor, I offer into evidence 4 Government Exhibits 2082A through 2082EE. 5 MR. FALLICK: No objection. 6 THE COURT: Government Exhibits 2082A through 2082EE 7 received in evidence. 8 (Government's Exhibits 2082A-2082EE received in 9 evidence) 10 MR. BARKOW: Your Honor, may we publish them to the 11 jury by putting them on the screen and cycling through them. 12 It takes a few seconds for the exhibits to appear on the 13 screen, just at whatever pace we can do it. 14 THE COURT: That's fine. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2870 46USSAT5 Schumaker - direct 1 Q. Agent Schumaker, as they go through can you describe what 2 you see and what is showing? 3 A. Yes, sir, this first photograph would be the door from the 4 entrance of hooker place. 5 Q. That is 2082A? 6 A. Correct. 2082A. 7 Q. This is 2082B. 8 A. 2082B, it's hard to tell but it's actually looking at the 9 bottom of the steps up towards the apartment right at the 10 entranceway. 11 Q. And now 2082C. 12 A. This photograph would be the entrance door to the 13 apartment. 14 Q. 2082D. 15 A. 2082D would have been the marking from the evidence 16 response team of when we made photographs we marked each room 17 and labeled them accordingly. So this reflects room A. 18 Q. And that corresponds to the sketch by Agent Diskin? 19 A. It corresponds to the sketch, yes, sir. 20 Q. And 2082E? 21 A. 2082E is a photograph of the bathroom, which is the first 22 room just to the left of the main entrance. 23 Q. 2082F. 24 A. 2082F is, again, the bathroom. 25 Q. 2082G. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2871 46USSAT5 Schumaker - direct 1 A. This photograph would have been the entrance to room B, 2 which based on the sketch would be the kitchen. 3 Q. 2082H. 4 A. 2082H would be another photograph of the corner of the 5 kitchen, one corner of it. 6 Q. 2082I. 7 A. Again, this would be room B, the kitchen. 8 Q. 2082J. 9 A. 2082J is looking from the room D, the living room, into the 10 kitchen, room B. 11 Q. 2082K. 12 A. 2082K, you can see the fax machine up there on the wall 13 which I believe is still in room A or, I am sorry, room B, the 14 kitchen. It's the window. 15 Q. 2082L. 16 A. This is looking from the kitchen into that back storage 17 area, room C. You can see the filing cabinet there in the 18 corner. 19 Q. 2082M. 20 A. This is a closer up view of room C, the back storage area. 21 Q. 2082N. 22 A. 2082N would be room D, the living room, the entranceway. 23 Q. 2082-O. 24 A. 2082-O is the dining set in room D, the living room. 25 Q. 2082P. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2872 46USSAT5 Schumaker - direct 1 A. This would be the sofa obviously in the living room, room 2 D, and you can see to the entranceway is the other bedroom, 3 room G. 4 Q. 2082Q. 5 A. The same view of the sofa in the living room, room D. 6 Q. 2082R. 7 A. 2082R is the small computer room off to the side of the 8 living room, room E. 9 Q. 2082S. 10 A. 2082S is the entranceway to room F, one of the side 11 bedrooms. 12 Q. 2082T. 13 A. 2082T would be the entranceway to room H, which I believe 14 was the master bedroom. 15 Q. 2082U. 16 A. 2082U I believe was the bed in the master bedroom, room H. 17 Q. 2082V. 18 A. 2082V, victor, is again kind of a close-up of the dresser 19 in room H. 20 Q. 2082W. 21 A. 2082W is a close-up of room G, one of the bedrooms. 22 Q. 2082X. 23 A. This would depict the bunk beds within the bedroom, room G. 24 Q. 2082Y. 25 A. This is kind of a computer area, bookshelves in I believe SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2873 46USSAT5 Schumaker - direct 1 room G. 2 Q. 2082Z. 3 A. This would be -- it's common when we take photographs to do 4 a cover sheet that shows who is taking the photographs, the 5 date and the place, and the file number. 6 Q. 2082AA? 7 A. 2082AA would be the garage on Hooker Place. 8 Q. And 2082BB. 9 A. This would be another photograph depicting the garage. 10 Q. 2082CC. 11 A. Again, 2082CC would be a photograph of the garage. 12 Q. And 2082DD. 13 A. This photograph would also depict some of the boxes and the 14 things in the garage. 15 Q. And, finally, 2082EE. 16 A. This last photograph is also depicting the garage as we 17 found it. 18 Q. We can take that down. 19 Agent Schumaker, what was your role personally in 20 connection with the search on that day? 21 A. My role, in addition to actually participating in the 22 search, was to organize it, to assign responsibilities, to 23 prepare all the administrative paperwork and at the end of the 24 search to make sure that we had all the items of evidence as we 25 had marked them and everything was secure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2874 46USSAT5 Schumaker - direct 1 Q. So were you the team leader that day at the search? 2 A. Yes, I was. 3 Q. And can you describe to us generally how the search was 4 conducted? 5 A. Generally once the apartment was secured we entered in and 6 I asked Kathy Diskin to start preparing the sketch and I asked 7 Bill Glass to start doing the entry photographs. At that point 8 we looked at each room, determined how much was there, and then 9 I asked all the agents to start conducting the search and I 10 started preparing my paperwork. 11 Q. And from what locations in the apartment in the garage were 12 items actually seized from? 13 A. I believe just about every room with the exception of maybe 14 the kitchen. Most of the rooms had something. 15 Q. And after the items were seized, what did the agent who 16 seized the item or picked it up, what did they do with it? 17 A. Well, one of two things. Either they would have brought it 18 to me -- if I was in another room they would have brought it to 19 me and said I got this in a room at this location, or they 20 would have asked for me to come over and show me what they had 21 and where it was found so that I could make a record of it. 22 Q. And just in general terms, how is it determined what should 23 or shouldn't be seized? 24 A. It's based on the search warrant, how the search warrant is 25 written up as to what items would be seized. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2875 46USSAT5 Schumaker - direct 1 Q. Now, in the course of this search was everything in the 2 house or in the apartment, in the garage, seized? 3 A. No, sir. 4 Q. And the items that were seized when they were brought to 5 you, were they placed in boxes or bags? 6 A. Yes. Depending on the size, we either put it in a box or 7 in a plastic or paper bag. 8 Q. Did you assign numbers in some sort of numbering system to 9 those boxes or bags? 10 A. Yes, I did. 11 Q. How many items, that is, how many boxes or bags, were there 12 from the apartment? 13 A. From the apartment I believe we seized 22 items. 14 Q. And by item, does that mean just one piece of paper or 15 could that be a pile of things or what do you mean by item? 16 A. It could be a pile of things. For instance, it could be 17 just miscellaneous papers that we did not necessarily go 18 through every stack so we would put it in a box and that would 19 be one item. But it was taken by an agent from a particular 20 location. 21 Q. And how many items or item numbers do you use to assign to 22 things seized from the garage? 23 A. From the garage we used 13 item numbers. 24 Q. And these bags or boxes, were they sealed at some point? 25 A. Yes, at the very end of the search we go back through to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2876 46USSAT5 Schumaker - direct 1 make sure that we have accounted for everything and every box 2 or bag is sealed with evidence tape. 3 Q. And after the items or the boxes or bags are sealed, what 4 was done with them? 5 A. After everything was sealed, then I handed over chain of 6 custody to Special Agent John Dugan. 7 Q. What did he do with them? 8 A. He transported them back to the New York field office. 9 Q. And what happened to them when they were brought back to 10 the field office? 11 A. I was told that they were put into a locked room by Agent 12 Dugan. 13 Q. Into what room? 14 A. Into a locked room. 15 Q. And the item numbers that you assigned, the 22 item numbers 16 from the apartment and the 13 items from the garage, is it your 17 understanding that later there was a letter added to those item 18 numbers? 19 A. Yes. 20 Q. Can you explain? 21 A. Yes, sir. After the search the agents and detectives 22 assigned to the squad had to differentiate the apartment from 23 the garage so every item seized from the apartment would have 24 the letter H in front of my item number. So it could be H1 or 25 H2 and the garage would have G1 or G2 depending on where it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2877 46USSAT5 Schumaker - direct 1 found. 2 MR. BARKOW: Your Honor, given the time I am going to 3 move to new area and I am not sure if the court wants to break 4 now or if I should continue and break in the middle of that 5 area. 6 THE COURT: All right. 7 Why don't you move on to a new area. 8 Ladies and gentlemen, what I try to do is to 9 coordinate the luncheon break with when your lunch arrives, so 10 why don't you move on to another area. 11 MR. BARKOW: Thank you, your Honor. 12 Q. Agent Schumaker, you mentioned previously that you were 13 responsible for doing administrative paperwork. 14 A. Correct. 15 Q. What was the nature of this paperwork? 16 A. The nature of the paperwork is an administrative work sheet 17 which documents the location, the time we started and who 18 participated, as well as an evidence recovery log. 19 Q. What is an evidence recovery log? 20 A. The evidence recovery log, that is where I log in the item 21 number, the place it was seized from, who seized it, whether it 22 was photographed and what was taken. 23 Q. And you may have said this but was it also recorded where 24 the item was found? 25 A. Yes. What room and specifically where in that room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2878 46USSAT5 Schumaker - direct 1 Q. And when, at what time in relation to the search, was this 2 paperwork generated? 3 A. I do it throughout the search. So as an item is found and 4 I am notified of it, I immediately give it an item number and I 5 document it, so it's throughout the search. 6 Q. And why do you create this paperwork? Specifically why do 7 you create the recovery log? 8 A. So that there is a record of where every piece of item of 9 evidence was found and so I can use it to help my memory later 10 on. 11 Q. As you sit here right now, do you remember the details of 12 where each and every item in this search was found? 13 A. No, sir, not without looking at that recovery log. 14 Q. Well, at the time that you recorded the information did you 15 record it on the log? 16 A. Yes. 17 Q. And was it accurate and complete to the best of your 18 ability at the time you recorded it into your log? 19 A. Yes, sir, it was. 20 MR. BARKOW: Your Honor, I would ask that we put 21 before the witness for purposes of recollection recorded 22 Exhibit 3542E. 23 THE COURT: All right. Not 3542E. 24 3542D. 25 THE COURT: Only before the witness and counsel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2879 46USSAT5 Schumaker - direct 1 MR. BARKOW: Yes. 2 Q. Now, Agent Schumaker, as to the items that were seized in 3 this search, are you able to recognize the items because you 4 know what the items look like or for some other reason? 5 Are you able to say whether they came from the search 6 because you can look at each individual item and say this was 7 taken or is there some other way that you are able to know 8 where it came from? 9 A. No, I wouldn't be able to recognize every single item 10 because I obviously didn't seize every single item, so I have 11 to refer to my log and how it's packaged as to where it was 12 found and who seized it. 13 MR. BARKOW: May I approach, your Honor? 14 THE COURT: Yes. 15 Q. Agent Schumaker, I am putting in front of you in separate 16 redweld folders what I have marked for identification and 17 previously provided to counsel as Government Exhibits 2000, 18 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2010 -- that is 2010S 19 actually -- 2011, 2012, 2013, 2014, 2001, and 2015A through F. 20 A. Okay. 21 Q. Have you got those? 22 A. Yes. 23 Q. Okay. 24 Taking a look at those exhibits and in particular to 25 the redweld folders, can you tell me what I have just placed in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2880 46USSAT5 Schumaker - direct 1 front of you? 2 A. Yes, these would be items that were seized based on the 3 numbers on the redweld folders start with G and they would be 4 items G2, 3, et cetera. These would be items that were seized 5 from the garage. 6 Q. And how are you able to know that? 7 A. Based on the G signifying the garage and the item number 2 8 I can determine from my log that these were taken from the 9 garage. 10 Q. Okay. 11 And can you tell with respect to all of the items that 12 I have placed before you which member of your search team 13 seized these particular items as marked on the redweld? 14 A. Yes, I can. Give me just one minute please. 15 All the items here were seized by Agent Kathy Diskin. 16 Q. Now, taking them actually collectively, they were all 17 seized from the garage, correct? 18 A. Correct, from the garage by Kathy Diskin. 19 MR. BARKOW: May I approach, your Honor? 20 THE COURT: Yes. 21 Q. I am going to trade with you, if I can. I will take these, 22 and I will put in front of you what I have marked for 23 identification and shown to counsel previously as Government 24 Exhibits 2009 and 2009A and ask you to take a look at those. 25 A. Yes, sir. The letter and number on the outside of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2881 46USSAT5 Schumaker - direct 1 redweld would be G12 and based on my records G12 would be 2 seized by Agent Darrin Turpin in the garage. 3 MR. BARKOW: May I approach, your Honor? 4 THE COURT: Yes. 5 MR. BARKOW: Actually may I ask that we place before 6 the witness 3542C and, again, this is just before the witness 7 for recollection recorded. 8 THE COURT: All right. 9 Q. Now I am placing before you what I have marked for 10 identification and previously provided to counsel as Government 11 Exhibits 2016 and 2017. Can you take a look at those? 12 Do you recognize what those are? 13 A. The outside of the redweld is marked H6, which means it 14 would have been seized from the house and item 6 is 15 miscellaneous documents that were seized by Kathy Diskin in the 16 house. 17 Q. And from where? 18 A. From room E, which would be the computer room. 19 MR. BARKOW: May I approach, your Honor? 20 THE COURT: Yes. 21 Q. I am going to take back from you 2016 and 2017 and place 22 before you what I marked for identification and previously 23 provided Government Exhibits 2018, 2019, 2020, 2021, 2022, 24 2023, 2024, 2025, 2026, and 2027. 25 THE COURT: And whenever there is a convenient time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2882 46USSAT5 Schumaker - direct 1 Q. Looking at these items, the exhibits I placed before you, 2 do you recognize what these are, where they were found, and who 3 found them? 4 A. Based on the marker on the red envelope, which would be H7, 5 that signifies that they were seized in the house by Kathy 6 Diskin in room E, which was the computer room, and my record 7 reflects they are just miscellaneous papers, magazines that 8 were seized. 9 MR. BARKOW: Your Honor, this is a convenient breaking 10 point. I think I heard the court ask about that. 11 THE COURT: Okay. 12 Ladies and gentlemen, we will break for lunch. 13 Please remember my continuing instructions not to talk 14 about the case, and keep an open mind. 15 All rise please. Please follow Mr. Fletcher to the 16 jury room. 17 Be back at 2 o'clock. 18 (Jury left the courtroom) 19 THE COURT: All right, the witness may step down. 20 MR. BARKOW: Can I retrieve that exhibit so I can keep 21 them organized? 22 THE COURT: Yes. 23 Please be seated all. 24 We were going to go over document issues this morning. 25 We didn't have a chance to do that and I also got the letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2883 46USSAT5 Schumaker - direct 1 fairly late last night. I would prefer not to do that now but 2 if you are going to offer any exhibits today offer only 3 exhibits that are not objected to. 4 MR. BARKOW: Okay. That is fine, your Honor. 5 THE COURT: Okay. 6 Be back at a quarter of 2. 7 (Luncheon recess) 8 (Continued on next page) 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 2884 46UMSAT6 Schumaker - direct 1 AFTERNOON SESSION 2 2:10 p.m. 3 (In open court; jury not present) 4 THE COURT: Mr. Fletcher is going to give the original 5 and one copy of that letter to the juror. 6 MR. RUHNKE: Your Honor, I didn't hear you at all. 7 THE COURT: Mr. Fletcher is going to give the original 8 and a copy of that letter to the juror that I had given her 9 this morning. 10 MR. RUHNKE: Thank you. 11 THE COURT: Just let me know if you can't hear me. 12 Let's bring in the jury. 13 The juror passed along her thanks for the note. 14 (Jury present) 15 THE COURT: Good afternoon, ladies and gentlemen. 16 The witness is on the stand. Mr. Barkow, you may 17 proceed. 18 Mr. Fletcher first. 19 THE DEPUTY CLERK: Agent Schumaker, you are reminded 20 you're still under oath. 21 THE WITNESS: Yes, sir. 22 MR. BARKOW: May I approach, your Honor? 23 THE COURT: Yes. 24 BY MR. BARKOW: 25 Q. Agent Schumaker, I've placed before you what's already been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2885 46UMSAT6 Schumaker - direct 1 admitted into evidence Government Exhibit 2082C. 2 MR. BARKOW: And I would ask that we be allowed to 3 publish that to the jury, your Honor, for a moment. 4 THE COURT: All right. 5 MR. BARKOW: If we could zoom in on the top part of 6 the door. 7 Q. This is the front door to the apartment, is that correct? 8 A. That's correct. 9 Q. Can you read what it says on the plate on the front door of 10 the apartment? 11 A. Yes, sir. The plate says: Welcome to the Sattars. There 12 is a little thing hanging down that says welcome. 13 MR. BARKOW: We can take that down. Thank you. 14 May I approach for a second, your Honor? 15 THE COURT: Yes. 16 Q. Agent Schumaker, I am placing before you a Redweld that I 17 showed you this morning or earlier before lunch that contains 18 Government Exhibits 2008, 2011, 2012, 2013, 2014. And I think 19 I misspoke this morning. It contains 2010, not 2010S. I just 20 want you to take a look at that. 21 MR. BARKOW: And if we can place before the witness 22 only Exhibit 3542D. 23 THE COURT: The witness and counsel. 24 MR. BARKOW: The witness and counsel. I'm sorry. 25 3542C. I'm sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2886 46UMSAT6 Schumaker - direct 1 A. I think you're correct -- 2 THE COURT: Hold on. 3 A. With D. 4 Q. With D. I'm sorry. 5 A. Yes. 6 Q. And previously you testified about where these items came 7 from and I just want to be clear. With respect to 2010 also, 8 can you tell us where that was found and who recovered it? 9 A. Yes. Item -- Exhibit 2010 is in this Redweld which is 10 marked G7, which would be the garage item No. 7, which was 11 seized by agent Kathy Diskin. 12 MR. BARKOW: May I approach, your Honor? 13 THE COURT: Yes. 14 Q. Now, to continue on, Agent Schumaker, I'm placing you 15 before you containing what I've marked for identification and 16 shown to counsel Government Exhibits 2028, 2029, 2031 and 2032. 17 Could you take a look at these. 18 A. Yes. 19 Q. Do you recognize these and know what they are? 20 A. These are items that would have been seized from the house. 21 MR. BARKOW: Could we put before the witness and 22 counsel only 3542C, please. 23 THE COURT: All right. 24 A. According to my log, item 9 was seized from the file 25 cabinet in room C by myself. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2887 46UMSAT6 Schumaker - direct 1 Q. So the items in this Redweld were seized by you? 2 A. Correct, yes. 3 MR. BARKOW: May I approach, your Honor? 4 THE COURT: Yes. 5 Q. Now, I'm placing before you what I've marked for 6 identification and previously shown to counsel, Government 7 Exhibits 2034, 2035, 2036, 2037, 2038, 2044, and 2045. 8 Do you recognize those items or know what they are? 9 A. These are documents that were seized from the house under 10 the bed in room H. I believe were in a locked briefcase by 11 special agent Darrin Turpin. 12 Q. You have said that they were seized from a locked 13 briefcase? 14 A. Yes. The briefcase was actually seized during the search 15 and it was subsequently opened pursuant to a search warrant. 16 MR. BARKOW: May I approach, your Honor? 17 THE COURT: Yes. 18 Q. This is the search warrant that you testified about 19 previously for the briefcases? 20 A. Yes. The one I mentioned this morning. 21 MR. BARKOW: May I approach, your Honor? 22 THE COURT: Yes. 23 Q. Now, I'm showing you what I have marked for identification, 24 previously produced to counsel, Government Exhibit 2039 for 25 identification. Could you take a look at that and tell us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2888 46UMSAT6 Schumaker - direct 1 whether you know what that is? 2 A. Exhibit 2039 is in a Redweld marked H11, which means it 3 would have been seized from the house. It was also in a brown 4 briefcase which was located under the bed in room H by Special 5 Agent Darrin Turpin. That was also locked at the time of our 6 search and it was opened later under a search warrant. 7 Q. And which room is room H? 8 A. Room H would have been, I believe, the master bedroom in 9 the far back right corner. 10 MR. BARKOW: May I approach, your Honor? 11 THE COURT: Yes. 12 Q. I'm placing before you what I have marked for 13 identification, previously produced to counsel, Government 14 Exhibit 2040. Could you take a look at that? 15 A. Yes. This is an audio cassette tape with non-English 16 writing on it. The Redweld is marked H12. That was seized in 17 the house under the bed in room H by Special Agent Darrin 18 Turpin. 19 MR. BARKOW: May I approach, your Honor? 20 THE COURT: Yes. 21 Q. Now I'm showing you what I have marked for identification, 22 previously produced to counsel, Government Exhibits 2041, 2042, 23 2046A through 2046E, 2048, 2049, 2075, 2077, and 2080. Can you 24 look through these items and tell us if you know what they are 25 and tell us where they came from? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2889 46UMSAT6 Schumaker - direct 1 A. This Redweld marked H11 was seized from the house. There 2 are some miscellaneous documents, including videotapes and 3 audio cassette tapes, seized, according to my log, in room H in 4 the closet by Special Agent Darrin Turpin. 5 Q. And you said that the Redweld bears what item number? 6 A. The Redweld bears item No. H13. 7 MR. BARKOW: May I approach, your Honor? 8 THE COURT: Yes. 9 You had begun saying, I thought, that the Redweld was 10 H11 and then you said it was H13. Was H11 -- 11 THE WITNESS: We already did H11, your Honor. H13 was 12 the one we just did. 13 Q. Now I'm placing you before you what I have marked for 14 identification previously produced, Government Exhibit 2081. 15 Do you recognize it and do you know where it was found? 16 A. Yes. The Redweld is marked H17, which means it was seized 17 from the house. They appear to be business cards. They were 18 seized in room H on the dresser drawer by myself, Agent 19 Schumaker. 20 Q. Agent Schumaker, I have a few other items, but before I go 21 any further, I want to ask you a question or two about your 22 paperwork. You have reviewed your paperwork before you came in 23 here to testify today, is that right? 24 A. Yes, that's correct. 25 Q. And did you happen to notice, upon reviewing your paperwork SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2890 46UMSAT6 Schumaker - direct 1 in anticipation of your testimony, whether there were any typos 2 in it? 3 A. Yes, I did. 4 Q. Can you explain? 5 A. Yes. It is common after the search that I would 6 memorialize the search on an FD302. I discovered that in 7 typing it I actually put down the date that I typed it versus 8 the date that it was -- the search was conducted. 9 Q. What's a 302? 10 A. A 302 is a document that we use to memorialize either an 11 interview or a search, something like that. 12 Q. Basically, a report? 13 A. It is a report, yes, that I generated. 14 Q. What was the date of the search? 15 A. The date of the search was April 9. 16 MR. BARKOW: May I approach, your Honor? 17 THE COURT: Yes. 18 Q. I'm placing before you what I have marked for 19 identification, and previously produced to counsel, Government 20 Exhibits 2050A through 2050L, 2052 through 2059, 2060A and 21 2060B, 2061 through 2069, and 2071. 22 A. Yes. The Redweld is marked H18, so it was seized from the 23 house, on the top of the dresser in room H, the master bedroom, 24 by investigative specialist Bill Glass, and the Redweld 25 contains some photographs, miscellaneous documents, and one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2891 46UMSAT6 Schumaker - direct 1 appears to be a video cassette tape. 2 MR. BARKOW: May I approach, your Honor? 3 THE COURT: Yes. 4 Q. I'm placing you before you what I have marked for 5 identification as Government Exhibit 2070. Would you take a 6 look at that and tell us, if you know, what that is, and from 7 where it was recovered? 8 A. Yes. According to the Redweld, it is marked H19, item 19. 9 It is a miscellaneous audiotape that was seized in the bottom 10 shelf of room C by myself. 11 MR. BARKOW: May I approach, your Honor? 12 THE COURT: Yes. 13 Q. I'm placing before you what I have marked for 14 identification as Government Exhibit 2072, previously provided 15 to counsel. Can you take a look at that and tell us if you 16 recognize it and where it was found? 17 A. Yes. According to the Redweld, it is marked H20. Item 20 18 are miscellaneous papers that I also seized from the bottom 19 shelf of room C, which would have been the back storage area. 20 MR. BARKOW: May I approach, your Honor? 21 THE COURT: Yes. 22 Q. Finally, Agent Schumaker, I'm placing before you what I 23 have marked for identification, and previously provided to 24 counsel, Government Exhibit 2073. Can you take a look at that 25 and tell us whether you recognize it and know where it was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2892 46UMSAT6 Schumaker - direct 1 found? 2 A. Yes. The Redweld is marked H21. It is a document 3 containing it that was seized by myself again in room B in the 4 house. 5 Q. You can just leave that in front of you for now. 6 Agent Schumaker, during this search, you've testified 7 that various documents were seized. Were some of these 8 documents incomplete or torn or what have you when they were 9 actually found? 10 A. It is possible because say when I went through the file 11 cabinet drawers, if I took a stack out and I flipped through 12 it, there could have been a document that maybe was partially 13 torn or was missing within the stack. I just took the whole 14 stack. 15 Q. Basically, you took it as you found it? 16 A. I took it as I found it. Sometimes they were rubber-banded 17 together. 18 MR. BARKOW: Your Honor, at this point, I'd like to 19 offer into evidence and read Government Exhibit 2085, which is 20 a stipulation between the parties. 21 MR. TIGAR: May I speak briefly with Mr. Barkow? 22 THE COURT: Certainly. 23 MR. TIGAR: Thank you, your Honor. I just cleared up 24 a little difficulty here and we are fine. 25 THE COURT: No problem. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2893 46UMSAT6 Schumaker - direct 1 Government Exhibit 2085 is the stipulation? 2 MR. BARKOW: Yes, your Honor. 3 THE COURT: You can read the stipulation. 4 MR. BARKOW: May I put it on the screen as I do so, 5 your Honor? 6 THE COURT: All right. 7 No objection to the stipulation in evidence? 8 MR. TIGAR: No, your Honor. It is signed by all of 9 us. 10 THE COURT: Government Exhibit 2085 received in 11 evidence. 12 (Government's Exhibit 2085 received in evidence) 13 MR. BARKOW: The parties hereby stipulate and agree 14 that the following people would testify as follows if called as 15 witnesses at this trial: 16 1. Special agent Kathy Diskin of the Federal Bureau 17 of Investigation, or the FBI, would testify that on April 9, 18 2002, she participated in a search of defendant Sattar's 19 apartment at 249 Hooker Place, Apartment 2E, Staten Island, New 20 York. Special Agent Diskin would further testify that she drew 21 a rough sketch of the layout of Sattar's apartment, but that 22 the sketch does not accurately or exactly depict sizes or 23 distances. Special Agent Diskin would further testify that 24 Government Exhibit 3542E is a true and accurate copy of her 25 original rough sketch, and that Government Exhibit 3542E fairly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2894 46UMSAT6 Schumaker - direct 1 and accurately depicts, in rough sense, the physical layout of 2 Sattar's apartment. Special Agent Diskin would further testify 3 that, during the search, she seized Government Exhibits 2000, 4 2001, 2002, 2003, 2004, 2005, 2006, 2007, 2008, 2009, 2010, 5 2011, 2012, 2013, 2014, 2015A, 2015B, 2015C, 2015D, 2015E, and 6 2015F from the garage, and Government Exhibits 2016, 2017, 7 2018, 2019, 2020, 2021, 2022, 2023, 2024, 2025, 2026, 2027, 8 20383, and 2083A from room E of the apartment, and gave all 9 items to Special Agent Nanette H. Schumaker of the FBI, team 10 leader of the search team. 11 2. Special Agent Darrin Turpin of the FBI would 12 testify that, on April 9, 2002, he participated in the search 13 of defendant Sattar's apartment at 249 Hooker Place, Apartment 14 2E, Staten Island, New York. Special Agent Turpin would 15 further testify that, during the search, he seized Government 16 Exhibits 2034, 2035, 2036, 2037, 2038, 2044, and 2045 from 17 inside of a black briefcase underneath the bed in room H of the 18 apartment; Government Exhibit 2039 from inside of a brown 19 briefcase underneath the bed in room H of the apartment; 20 Government Exhibit 2040 from underneath the bed in room H of 21 the apartment; Government Exhibits 2041, 2042, 2045, 2046A, 22 2046B, 2046C, 2046D, 2046E, 2048, 2049, 2075, 2077, 2078, 2079, 23 and 2080 from the closet in room H of the apartment; and 24 Government Exhibit 2047 from a VCR attached to a video camera 25 in room D of the apartment, and gave all items to Special Agent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2895 46UMSAT6 Schumaker - direct 1 Nanette H. Schumaker of the FBI, the team leader of the search 2 team. 3 3. Investigative Specialist William Glass of the FBI 4 would testify that, on April 9, 2002, he participated in the 5 search of defendant Sattar's apartment at 249 Hooker Place, 6 Apartment 2E, Staten Island, New York. Investigative 7 Specialist Glass would further testify that, during the search, 8 he seized Government Exhibits 2050A, 2050B, 2050C, 2050D, 9 2050E, 2050F, 2050G, 2050H, 2050I, 2050J, 2050K, 2050L, 2052, 10 2053, 2054, 2055, 2056, 2057, 2058, 2059, 2060A, 2060B, 2061, 11 2062, 2063, 2064, 2065, 2066, 2067, 2068, 2069, and 2071 from 12 the top of a dresser in room H of the apartment, and gave them 13 to Special Agent Nanette H. Schumaker of the FBI, the team 14 leader of the search team. 15 4. Special agent John Dugan of the FBI would testify 16 that, on April 9, 2002, he was present during the search of 17 defendant Sattar's apartment at 249 Hooker Place, apartment 2E, 18 Staten Island, New York. Special agent would further testify 19 that, after the search concluded, Special Agent Nanette H. 20 Schumaker transferred to him custody of Government Exhibits 21 2000 through 2014, 2015A through 2015F, 2016 through 2032, 2034 22 through 2042, 2044, 2045, 2046A through 2046E, 2047 through 23 2049, 2050A through 2050L, 2051 through 2059, 2060A, 2060B, 24 2061 through 2073, and 2075 through 2081 ("The seized 25 Government Exhibits"). Special Agent Dugan would further -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2896 46UMSAT6 Schumaker - direct 1 Government Exhibits to the FBI's field office at 26 Federal 2 Plaza -- I'm sorry. I think that's the way it reads, your 3 Honor -- to the FBI's New York field office at 26 Federal Plaza 4 New York, New York. Special Agent Dugan would further testify 5 that when he arrived at 26 Federal Plaza, he transferred 6 custody of the seized government exhibits to Special Agent 7 Philip Swabsin of the FBI and Detective Louis Napoli of the New 8 York Police Department, who has been deputized as a federal 9 agent and who works with the FBI. Special Agent Dugan would 10 further testify that when he transferred custody of the seized 11 government exhibits to Special Agent Swabsin and Detective 12 Napoli, all of the seized government exhibits were in taped and 13 sealed bags and boxes. 14 5. Special Agent Philip Swabsin and Detective Louis 15 Napoli would testify that, on April 9, 2002, at the FBI's New 16 York field office at 26 Federal Plaza, New York, New York, 17 Special Agent John Dugan transferred custody to them of the 18 seized government exhibits. Special Agent Swabsin and 19 Detective Napoli would testify that, when they received the 20 seized government exhibits from Special Agent Dugan, all of the 21 seized government exhibits were in taped and sealed bags or 22 boxes. Special Agent Swabsin and Detective Napoli would 23 further testify that they immediately placed the seized 24 government exhibits in a secure, locked evidence-storage room 25 for secure storage. Special Agent Swabsin and Detective Napoli SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2897 46UMSAT6 Schumaker - direct 1 would further testify that the seized government exhibits did 2 not leave the secure custody and control of the FBI after April 3 9, 2002. Special Agent Swabsin and Detective Napoli would 4 further testify that they, along with special agent Steven 5 Sorrels of the FBI, took the seized government exhibits from 6 the bags and boxes in which they had been stored on April 9, 7 2002, and brought them to this courtroom for the purposes of 8 this trial. 9 It is agreed to and stipulated and signed by the 10 parties and attorneys, dated June 28, 2004. 11 At this time, your Honor, I would like to offer into 12 evidence some of these exhibits, these particular exhibits: 13 Exhibit 2000, 2009, 2009A, 2032, 2036, 2047S, 2049S, 2050A 14 through 2050L, 2053, 2056, 2058, 2061, 2062, 2063, 2069, 2072, 15 and 2081. 16 MR. FALLICK: No objection. 17 THE COURT: No objections. The exhibits just listed 18 are received in evidence. 19 (Government's Exhibits 2000, 2009, 2009A, 2032, 2036, 20 2047S, 2049S received in evidence) 21 (Government's Exhibits 2050A through 2050L, 2053, 22 2056, 2058 received in evidence) 23 (Government's Exhibits 2061, 2062, 2063, 2069, 2072, 24 and 2081 received in evidence) 25 MR. BARKOW: We have nothing further at this point, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2898 46UMSAT6 Schumaker - direct 1 your Honor. 2 MR. FALLICK: May I inquire, your Honor? 3 THE COURT: Yes, Mr. Fallick may inquire. 4 CROSS-EXAMINATION 5 BY MR. FALLICK: 6 Q. Agent Schumaker, prior to conducting your search at 249 7 Hooker Place on April 9, did you know that you were going to 8 Mr. Sattar's apartment? 9 A. Yes, sir. 10 Q. You only learned of the identity of the apartment when you 11 were there? 12 A. No. I knew -- I knew beforehand that I was going to 13 Mr. Sattar's residence. 14 Q. At what time did the search of the apartment begin? 15 A. Approximately 12:30. 16 Q. And what time did the search of the apartment finish? 17 A. I believe, according to my report, the apartment stopped at 18 approximately 4:30, 5:00, something like that. 19 Q. And how many agents participated in the search of the 20 apartment? 21 A. Well, every agent that I listed earlier in my testimony 22 participated. 23 Q. That would be including yourself, six of you? 24 A. Well, it would be myself, Kathy -- 25 Q. Seven of you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2899 46UMSAT6 Schumaker - cross 1 A. It would be six of us. 2 Q. Was anyone home in the apartment when the search began? 3 A. No, sir. 4 Q. During the search of the apartment, did anyone return home? 5 A. Any of the residents? 6 Q. Anyone who lived in that apartment. 7 A. No, sir. 8 Q. Was the building in which the apartment was located a 9 two-story building? 10 A. I do not recall. I know that the apartment was on the 11 second floor. I don't recall if there was anything above that. 12 Q. Was it a walk-up apartment? 13 A. Yes. 14 Q. Were there any other apartments on the floor? 15 A. On the second floor, I honestly do not recall if there was 16 another door at the top there. 17 Q. Did the apartment have three bedrooms? 18 A. Yes. 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2900 46USSAT7 Schumaker - cross 1 Q. Could you tell if one or two of the bedrooms were 2 children's rooms? 3 A. Yes. 4 Q. When you first arrived at the apartment and went inside, 5 did you notice that the apartment was cluttered? 6 A. Cluttered? Define cluttered. 7 Q. Well, was there clothes around the apartment? 8 A. Yes, there were. 9 Q. Were there papers, loose papers around the apartment? 10 A. There were some loose papers. I don't know if I would call 11 it excessively cluttered but there were loose papers around, 12 yes. 13 Q. Did the search team look at each room of the apartment? 14 A. Yes. 15 Q. Did they look in every closet? 16 A. I don't know. I was not with each individual as they 17 searched, but I know our teams are thorough. 18 Q. Well, if your team is very thorough, would they have looked 19 in each closet? 20 A. Again, I can't say I was with every person but in order to 21 do a thorough search normally we would look in the closet. 22 Q. Would they look in every cabinet? 23 A. Typically in a normal search they would. Again, I was not 24 with every individual as they conducted their search. 25 Q. I understand that. In a normal search would they look in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2901 46USSAT7 Schumaker - cross 1 every drawer? 2 A. Typically, yes. 3 Q. Would they look under every bed? 4 A. Typically, yes. 5 Q. Now, during the course of the search of this apartment, did 6 the team seize papers, and I mean by papers newspapers, 7 magazines, documents in virtually every room in the apartment? 8 A. I would have to refer to my log, sir, to know if they did 9 in every room. I don't know they seized anything in the 10 bathroom. 11 Q. I asked in virtually every room. 12 A. In virtually every room, I believe. 13 Q. And did they seize papers from dressers and cabinets and 14 closets and shelves? 15 A. Yes. 16 Q. And did they seize papers from briefcases and jackets? 17 A. Yes. 18 Q. Did they seize each piece of paper that they found? 19 A. Again, I wasn't with them. I don't know that every piece 20 of paper that they look at they necessarily took custody of or 21 else the inventory sheet would have been considerably larger 22 than 22 items. But I was not with them as they conducted every 23 piece of search to know whether they seized everything they 24 looked at. 25 Q. Do you know if any members of your team left any pieces of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2902 46USSAT7 Schumaker - cross 1 paper behind in the apartment? 2 A. It's possible. 3 Q. Would you have made a list of the papers that you left 4 behind? 5 A. No. 6 Q. Were many newspaper articles seized by members of your 7 team? 8 A. Based on looking at the exhibits this morning, I believe 9 there were, yes. 10 Q. And did you have an opportunity when he showed you the 11 newspaper articles to notice what newspapers they came from? 12 A. No, sir, I do not recall that. 13 Q. Did you notice that many of the papers that were seized 14 were dated sometime in the mid-1990s? 15 A. No, sir, I didn't look at every piece of paper that was 16 seized, no, sir. 17 Q. Were there audio tapes and videotapes in the apartment? 18 A. Yes. 19 Q. Were they in boxes or scattered about? 20 A. Sir, I can't answer that question again because I didn't 21 search every single room. You would have to ask the agent that 22 actually seized them. I know that some were located on 23 bookshelves, that type of thing. 24 Q. Do you know if your team seized every audio and videotape 25 that was in the apartment? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2903 46USSAT7 Schumaker - cross 1 A. No, sir, I do not know that. 2 Q. Were there bookcases in the apartment? 3 A. Yes, there were. 4 Q. Were there bookcases in the living room? 5 A. Yes. 6 Q. Were there bookcases in the computer room? 7 A. Yes. 8 Q. And were there bookcases in one of the children's rooms? 9 A. Yes. 10 Q. Could you estimate how many books there were in the 11 apartment? 12 A. No, sir, I am sorry, I wouldn't be able to do that. 13 Q. Did you have an opportunity to notice what type of books 14 were in the bookcases? 15 A. Other than it looked like the kid's bedroom, which I recall 16 being some school books. Again, I didn't look at every book on 17 the shelf because I didn't search every room. 18 Q. Do you know how many books your team seized? 19 A. No, sir, the exact number, no, sir, I do not. 20 Q. Do you know, did they seize every book in Mr. Sattar's 21 apartment? 22 A. No, sir. 23 Q. And do you know what books were left behind in the 24 apartment? 25 A. No, I do not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2904 46USSAT7 Schumaker - cross 1 Q. Did anyone make a list of those books? 2 A. That is not customary to make a list of what we left, no, 3 sir. 4 Q. Did you take a photograph of the bookcases? 5 A. Yes, we did. 6 Q. And do those photographs show the titles of the books in 7 the apartment? 8 A. No, sir, I don't believe that the photograph is close 9 enough to be able to tell the title of all the books. It just 10 shows the bookshelves as they existed. 11 Q. Were these documents and the papers that your team seized 12 from the apartment, were they in the redwelds that we have in 13 court here today? 14 A. No, sir. 15 Q. Were there loose papers in the apartment? 16 A. There were loose papers. There were some papers that were 17 in a filing cabinet. Again, I don't know how every single 18 piece of paper were found. Things in the garage were in boxes 19 or Styrofoam containers, something like that. 20 Q. Do you know if the papers that you seized were organized in 21 any way prior to your seizing them? 22 A. Organized in any way? Not that I am aware of. 23 Q. When did the search of the garage begin? 24 A. The search of the garage started towards the end of the 25 search of the apartment. As we were winding up the apartment, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2905 46USSAT7 Schumaker - cross 1 then they started searching the garage. 2 Q. And was that 4:30, 5 o'clock? 3 A. 4:30, 5 o'clock approximately. 4 Q. What time did the search of the garage conclude? 5 A. I believe approximately 7 p.m., give or take. 6 Q. From the garage did your team take tapes, videotapes and 7 audio tapes? 8 A. I believe so, yes, sir. 9 Q. Did they take each video and audio tape that was in the 10 garage? 11 A. That I do not know. I did not search the garage so I am 12 not sure what they took versus what they left behind. 13 Q. Did they take books from the garage? 14 A. I cannot recall that. I didn't look inside every box. 15 Q. Did they take documents, documents from the garage, meaning 16 papers, newspapers, magazine articles? 17 A. Based on my review of the items in the redwelds this 18 morning I would say, yes, they did. 19 Q. In your review of the redwelds this morning, did you notice 20 that your team seized transcripts of a trial? 21 A. I didn't look at the items in the redwelds that closely 22 this morning, but I do recall some court documents being 23 seized. 24 Q. And do you know if those court documents came from the 25 trial of Sheikh Rahman? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2906 46USSAT7 Schumaker - cross 1 A. I believe so, yes. 2 Q. Did you know or do you know that at Sheikh Rahman's trial 3 Mr. Sattar was a paralegal for him? 4 A. I know that subsequent to the search. I don't recall if I 5 knew that at the time but it's very possible that I did. 6 Q. During the course of your search -- during the course of 7 your team's search, did they also seize time records of 8 Mr. Sattar for his work during Sheikh Abdel Rahman's trial? 9 A. I do not know, sir. Again, I have not reviewed every 10 single document that came out of that search. 11 MR. FALLICK: May I have one moment, your Honor? 12 THE COURT: Yes. 13 (Pause) 14 Q. Ms. Schumaker, you were present during the entire search of 15 the apartment? 16 A. Yes. 17 Q. And you were present during the entire search of the 18 garage? 19 A. Yes, I was present at the location. I may have been in the 20 apartment when the garage search started. 21 Q. And did each of the agents who seized an item come and show 22 it to you? 23 A. As I testified this morning, they either brought it to me 24 and told me where they found it or they called me over to the 25 room and told me where they found it, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2907 46USSAT7 Schumaker - cross 1 Q. But you didn't examine whatever they seized? 2 A. Did I examine it at the time, not necessarily because if it 3 was a stack of documents I would not have examined each 4 document, no, sir. 5 MR. FALLICK: Thank you. 6 I have no further questions, your Honor. 7 THE COURT: All right. 8 Mr. Barkow. 9 MR. BARKOW: Your Honor, may I confer with Mr. Fallick 10 for one second, and I just have a few questions. 11 THE COURT: Sure. 12 REDIRECT EXAMINATION 13 BY MR. BARKOW: 14 Q. Ms. Schumaker, just a few questions. 15 Mr. Fallick asked you about items that were not seized 16 during this search. 17 A. Yes. 18 Q. What happened to those items? 19 A. They were left in the house. 20 Q. And when you and your team left the apartment, did you 21 prohibit anyone else from taking them or touching them or do 22 anything with respect to them other than just leave them there? 23 A. No. Whatever we don't seize we leave behind in the manner 24 in which we found it. So anybody else could have come in 25 behind us, anybody in the residence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2908 46USSAT7 Schumaker - redirect 1 MR. BARKOW: May I have just a moment, your Honor? 2 THE COURT: Yes. 3 Nothing further, your Honor. 4 MR. FALLICK: One question, your Honor. 5 THE COURT: Yes. 6 RECROSS EXAMINATION 7 BY MR. FALLICK: 8 Q. Ms. Schumaker, upon concluding the search and leaving the 9 apartment, do you take photographs of the apartment to show the 10 condition it was in and what was left behind? 11 A. Yes, sir, we do. 12 Q. And do those photographs show, for instance, the books or 13 documents that were left behind? 14 A. It's possible. Depending on the angle of the photograph, 15 it's possible it would have shown the bookshelf. I don't know 16 if you compared the two photos you could tell what was taken or 17 what was left. 18 Q. Would it show the tapes that were left behind? 19 A. I would have to see the photos. Again, we just do it to 20 show the condition of the room. 21 MR. FALLICK: I have no further questions, your Honor. 22 Thank you. 23 THE COURT: All right. Nothing further, all right. 24 The witness is excused. You may step down. 25 (Witness excused) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2909 46USSAT7 1 MS. BAKER: Your Honor, at this time the government 2 asks permission to read to the jury and to display on the 3 screen while reading Government Exhibit 200T, which was 4 previously received in evidence. 5 THE COURT: All right. 6 (At this point, Government Exhibit 200T in evidence 7 was read to the jury by Ms. Baker) 8 MR. TIGAR: Excuse me, your Honor, may the jury be 9 reminded this is a translation of something delivered in 10 Arabic. I forgot to ask when the reading first began. 11 THE COURT: All right. That is fine. 12 I wasn't sure if it would be useful to introduce it 13 with the stipulation to remind people which of the exhibits and 14 when this comes because this didn't come from the exhibits just 15 received in evidence. 16 MS. BAKER: Yes, your Honor, if I might have a moment 17 to find that stipulation. 18 THE COURT: Sure. 19 MS. BAKER: May we switch instead to displaying 20 Government Exhibit 213 which is in evidence, your Honor? 21 THE COURT: Yes. 22 MS. BAKER: And this is the stipulation. 23 Your Honor, may I refer just specifically to this 24 particular exhibit number as it's referenced in the 25 stipulation? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2910 46USSAT7 1 THE COURT: Yes. 2 This is a good time, ladies and gentlemen, because we 3 are seeing two separate forms of technology, the camera that is 4 being used that is right next to the podium that you have seen 5 various lawyers use it, you can put a document on and 6 effectively projects that image of the document that is placed 7 on the screen to all of the screens in the courtroom. There is 8 another system which actually calls up documents which are in 9 the system and those get put up also. You can tell the 10 difference between the two by physically watching documents 11 turned if they are on the screen and placed on the camera as 12 opposed to called up from the system. 13 Okay. 14 MS. BAKER: Your Honor, if I might read from the 15 second page of the stipulation, Government Exhibit 213. 16 The transcript marked as Government Exhibit 200T is a 17 true and accurate translation from Arabic into English of a 18 videotape of a speech delivered by Omar Abdel Rahman. That 19 videotape, which was seized pursuant to a court-authorized 20 search warrant at the residence of Nabil el-Masry, was received 21 in evidence as Abdel Rahman's trial in 1995, and Lynne Stewart 22 was present at the time it was received in evidence. The 23 transcript marked as Government Exhibit 200T was prepared by a 24 qualified, expert Arabic-to-English translator employed by the 25 Federal Bureau of Investigation. This transcript was also SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2911 46USSAT7 1 received in evidence at Abdel Rahman's trial in 1995, and Lynne 2 Stewart was present at the time it was received in evidence. 3 All voice attributions and Government Exhibit 200T -- 4 and now I am turning to the third page of the stipulation, and, 5 your Honor, if I might omit the remaining exhibit numbers for 6 the moment -- that is, all identifications on the transcript of 7 who is speaking at any particular time, truly and accurately 8 identify the speakers on the corresponding tapes. 9 After Government Exhibit 200T, and others, were 10 admitted into evidence during Abdel Rahman's trial, they were 11 read aloud to the jury in that case. Defendant Lynne Stewart 12 was present during the reading of each of these transcripts. 13 Agreed to and stipulated by all of the parties. 14 And then it's signed by counsel for each party. 15 THE COURT: All right. 16 MS. BAKER: Your Honor, if I might, in turning back to 17 Government Exhibit 200T, if I might begin again with Sheikh 18 Omar's words, the portion headed with the Roman numeral II on 19 the first page of Government Exhibit 200T. 20 THE COURT: All right. 21 (Reading continued) 22 MS. BAKER: Your Honor, if I can just have a minute to 23 get some water. 24 THE COURT: We usually take a break in the afternoon, 25 so why don't we take about 7 minutes and pick up again. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2912 46USSAT7 1 Ladies and gentlemen, please remember my continuing 2 instructions not to talk about the case. Keep an open mind. 3 All rise please. 4 Please follow Mr. Fletcher into the jury room. 5 (Jury left the courtroom) 6 THE COURT: All right, see you shortly. 7 (Recess) 8 (Continued on next page) 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 2913 46UMSAT8 1 (In open court; jury not present) 2 MS. BAKER: Your Honor, before we bring the jury back 3 in, one scheduling question and one logistical question. The 4 scheduling question is, the government does not intend to call 5 another witness today. We intend to fill the remainder of the 6 day with reading some of the exhibits already in evidence. So 7 I didn't know whether your Honor wanted to make a final 8 decision about tomorrow or advise the jury about that. 9 The logistical question is, we may switch after this 10 exhibit to reading one of the other 200 series exhibits, which 11 is a transcript of a recorded call, so it involves multiple 12 parties. Does your Honor have a preference as to physically 13 where we situate ourselves to do that? 14 THE COURT: I thought you were going to work that out. 15 It would be someone from the podium or someone on the witness 16 stand. 17 MR. MORVILLO: The calls only have two parties from 18 each -- my understanding is, the calls have only two parties 19 from them, at least two people talking at any one time 20 conversing. The phone is handed back and forth. We could turn 21 this podium to face the court and have two people standing at 22 the podium if the Court would like, or we could put someone in 23 the witness box. 24 THE COURT: I would think you would have someone in 25 the witness box and talk back and forth the same way as you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2914 46UMSAT8 1 would as though you were doing question and answer. 2 MR. MORVILLO: That's fine with the government, your 3 Honor. 4 THE COURT: I said that if we were in the middle of a 5 witness we would go over until tomorrow, but otherwise not, and 6 so we won't sit tomorrow morning. We won't sit tomorrow and 7 that's what I told the jury. 8 I'll talk to you all at the end of the day about 9 whether we should be here in the absence of the jury, but at 10 least we can send the jury home. I am not saying we have to do 11 that, Mr. Ruhnke. 12 MR. RUHNKE: I was kind of squirming. 13 THE COURT: Bring in the jury. 14 Mr. Fletcher is going to give the jury more writing 15 pads. 16 (Jury present) 17 THE COURT: Ms. Baker, you may proceed. 18 MS. BAKER: Thank you, your Honor. I'm resuming with 19 page 4 of Government Exhibit 200T. 20 (At this point, Government Exhibit 200T in evidence 21 continues to be read to the jury by Ms. Baker) 22 MR. DEMBER: Your Honor, at this time we would like to 23 read from Exhibits 208T and 209T. May I read the relevant 24 sections of the stipulation? 25 THE COURT: Stipulation is what exhibit? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2915 46UMSAT8 1 MR. DEMBER: Government Exhibit 213. 2 Stipulation reads as follows: The parties hereby 3 stipulate and agree that the audio and videotapes marked as 4 Government Exhibits 208 and 209 are tapes containing 5 intercepted telephone conversations between Abdel Rahman and 6 other persons. Each of these tapes was received in evidence at 7 Abdel Rahman's trial in 1995, and Lynne Stewart was present at 8 the time each was received in evidence. 9 Government Exhibits 208 and 209 were intercepted 10 telephone conversations between Abdel Rahman and other persons 11 obtained pursuant to a court-authorized wiretap. 12 The transcripts marked as Government Exhibits 208T and 13 209T are true and accurate translations from Arabic into 14 English of the tapes marked as Government Exhibits 208 and 209 15 respectively. Government Exhibits 208T and 209T were prepared 16 by qualified expert Arabic to English translators employed by 17 the Federal Bureau of Investigation. Each of these transcripts 18 was received in evidence at Abdel Rahman's trial in 1995 and 19 Lynne Stewart was present at the time each was received in 20 evidence. All voice attributions on Government Exhibits 208T 21 and 209T, that is, all identifications on the transcripts of 22 who is speaking at any particular time, truly and accurately 23 identify the speakers on the corresponding tapes. 24 After Government Exhibits 208T and 209T were admitted 25 into evidence during Abdel Rahman's trial, they were read aloud SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2916 46UMSAT8 1 to the jury in that case. Defendant Lynne Stewart was present 2 during the reading of each of these transcripts. 3 Your Honor, with your permission, we would like to 4 read Government Exhibit 208T. Mr. Morvillo will read the part 5 of Omar Abdel Rahman and Mr. Barkow will read the other parts 6 of an individual named Muhammad and two unidentified males. 7 May we do that? 8 THE COURT: All right. 9 MR. STERN: Before the reading begins, may I talk to 10 Mr. Dember for one second? 11 THE COURT: Yes, sure. 12 MR. DEMBER: Your Honor, Mr. Stern asked me, and we 13 agree, that the Muhammad identified in Government Exhibit 208T 14 is not the defendant Mohammed Yousry, and we acknowledge that. 15 THE COURT: Okay. 16 MR. BARKOW: May I approach, your Honor, and be in the 17 witness box? 18 THE COURT: Yes. 19 MR. MORVILLO: Your Honor, may we display Government 20 Exhibit 208T. 21 (At this point, Government Exhibit 208T in evidence is 22 read to the jury by Mr. Morvillo and Mr. Barkow) 23 MR. MORVILLO: Your Honor, at this time we would like 24 to read to the jury and publish to the jury Government Exhibit 25 209T. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2917 46UMSAT8 1 THE COURT: All right. 2 MS. BAKER: Your Honor if I might take Mr. Barkow's 3 place in the witness stand, but I would like to confer with Mr. 4 Morvillo first, please. 5 THE COURT: All right. 6 (At this point, Exhibit 209T in evidence is read to 7 the jury by Mr. Morvillo and Ms. Baker). 8 MR. DEMBER: Your Honor, we would next ask to be able 9 to read Exhibit 202T, which is a speech by Omar Abdel Rahman. 10 It is a lengthy speech, your Honor, about eight pages, which 11 will probably take us past the 4:30 mark. 12 THE COURT: It is 4:16. We can break. 13 Ladies and gentlemen, I told you that we would not sit 14 for very long tomorrow and wouldn't sit unless the schedule of 15 the witnesses was such that we would go over because we would 16 only be sitting for a short time tomorrow. And it is the 17 beginning of a long weekend for you and so we won't sit 18 tomorrow. Of course, Monday is a holiday. We will resume on 19 Tuesday. 20 It is very important that you follow all of my 21 instructions. Please remember, don't talk about the case at 22 all. Remember don't look at, listen to, read anything to do 23 with the case. If you should see something inadvertently, 24 simply turn away. 25 Always remember to keep an open mind until you have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2918 46UMSAT8 1 heard all of the evidence, I have instructed you on the law, 2 and you have gone to the jury room to begin your deliberations. 3 Fairness and justice requires that you do that. 4 Have a very good weekend. I look forward to seeing 5 you next week. 6 All rise, please, and follow Mr. Fletcher to the jury 7 room. 8 (Jury not present) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2919 46USSAT9 1 THE COURT: Please be seated all. 2 A couple of items. One is I don't think I received a 3 defense response to the government's motion in limine with 4 respect to the examination of the witness with respect to the 5 vote taking system. 6 MR. TIGAR: If your Honor has not received it, then 7 there are people who work for me who have some explaining to 8 do. 9 THE COURT: When was it? 10 MR. TIGAR: Late yesterday is my understanding it was 11 filed. The government is nodding that they were served with 12 it. 13 MR. MORVILLO: We received it. 14 THE COURT: Was it faxed to me or delivered to me? 15 MR. TIGAR: We believe a courtesy copy was left for 16 your Honor, but there is another copy in the building. We will 17 make sure -- 18 THE COURT: Just fax it to me. 19 MR. TIGAR: That it gets faxed. We did do it. I 20 remember signing it yesterday at about 5 o'clock. 21 THE COURT: That is fine. 22 I think some people had trouble with my fax number for 23 some reason. I don't know if there was something wrong with my 24 machine or people had the wrong number. I don't know. And the 25 government received it. Is the government going to reply to it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2920 46USSAT9 1 or not? I haven't read it so I am not asking for a reply. 2 MS. BAKER: Your Honor, my request would be that we 3 address it orally to the extent that it needs to be addressed 4 further. The response doesn't cite a lot of law and it's the 5 kind of thing that is perhaps better dealt with orally because 6 it will depend on the court's understanding of what has been 7 said so far. 8 THE COURT: My understanding of -- 9 MS. BAKER: It's difficult for me to know how your 10 Honor will understand or interpret the opposition and so I 11 would prefer to be guided by your Honor's questions in some 12 sort of oral argument. 13 THE COURT: Okay. 14 When is that witness supposed to testify? 15 MS. BAKER: Tuesday. 16 MR. TIGAR: Your Honor, it had been my suggestion, I 17 am willing to come in tomorrow. We would waive Ms. Stewart's 18 presence if that is all right with the court and however many 19 government lawyers there are. 20 My concern, your Honor, is that I have an urgent 21 engagement next January for my retirement party. I would like 22 this trial to be over by that time and quite seriously, your 23 Honor, I think that it's not fair to the jury that they don't 24 work a full day when they come in. So I am willing to come in 25 tomorrow and spend whatever time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2921 46USSAT9 1 I know that is intruding on the court's schedule but 2 for any of these matters we will do that and we can work it out 3 among ourselves if all defense counsel don't feel they need to 4 be here or all the government counsel, but I am at your Honor's 5 disposition about it. 6 THE COURT: I appreciate that. A couple of moments. 7 I am perfectly happy, as I suggested earlier, to meet 8 with you tomorrow. And I do respect the jurors' time and would 9 like them to have a full day without interruption and so I will 10 read those papers and talk to you about that tomorrow. I don't 11 see another way if the witness is going to be here on Tuesday. 12 MS. BAKER: Your Honor, I agree. And we are perfectly 13 willing to be here tomorrow at whatever time the court directs. 14 THE COURT: 9:30. 15 MR. TIGAR: May I have a moment, your Honor? 16 THE COURT: Or 10 o'clock. 17 MR. TIGAR: It would be to discuss with Mr. Sattar's 18 counsel about whether he would wish to be present or not. 19 THE COURT: Oh, sure. 20 MR. PAUL: We do intend to be here and my client 21 wishes to be present. 22 MR. TIGAR: While they are discussing, your Honor, I 23 raised with Mr. Barkow, with respect to the Sattar search 24 exhibits, I overlooked one that is in that category of lawyer 25 argument to the jury, that is 2001, and I don't know why I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2922 46USSAT9 1 missed it but the pages they want to show to the jury are pages 2 done in the opening statement so it falls in that same category 3 that we were going to discuss. And Mr. Barkow said he didn't 4 have the evidence and I told Mr. Barkow we would have it. 5 Again if the Sattar exhibit matter could usefully be addressed 6 tomorrow, we will be prepared on that too. 7 THE COURT: All right. 8 We can certainly start to discuss the Sattar search 9 materials. Do I have all of the Sattar search material, 10 including the material that the parties agreed to admit as well 11 as the exhibits that are at issue? 12 MR. BARKOW: Yes, your Honor, with just a few 13 exceptions. The last three that are listed in my letter of 14 last night, which are not completed yet for the court's review, 15 two of them need to be translated. The translations are not 16 complete. And another is a videotape that we are endeavoring 17 to redact so that we can give the court the full tape and also 18 what we propose to play from it. That is just not done yet. 19 And then there is one other exhibit, and I think this is the 20 only other one that the court doesn't have yet, which is 21 extremely voluminous and in order to save the court time I 22 think Mr. Tigar at least objects to this, and in order to save 23 the court time, I was going to pare that one down more so the 24 court can review less of it, and given the other materials to 25 review, and we don't need to get to that one now, so I think I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2923 46USSAT9 1 will provide that to the court at a later time. But it's very, 2 very long. 3 THE COURT: That is a compendium of newspaper 4 articles? 5 MR. BARKOW: That one is the government's brief to the 6 Second Circuit in the Abdel Rahman case. The compendium of 7 newspaper articles we reached an agreement among the parties, 8 so that that is Exhibit 2010. I am not sure if we produced 9 that to the court before but today we reached an agreement that 10 we are going to substitute a stipulation for that exhibit. 11 THE COURT: All right. 12 The redwelds include just the disputed documents, not 13 the ones that you have stipulated to admit. 14 MR. BARKOW: I think, your Honor, they include the 15 ones that we -- well, if I can just have a minute. That is 16 correct, your Honor, we submitted the ones that there were 17 disputes over at the time that I submitted the letter a few 18 days ago. So we did not submit ones that were agreed upon as 19 of that date. 20 THE COURT: In beginning to go over those exhibits, it 21 didn't appear to me that I had 20035 and with respect to 2008, 22 it didn't appear to me that I could tell from your Xerox of 23 2008 what that really was. 24 MR. BARKOW: May I have one moment to confer with our 25 paralegal so I can get that one ready one moment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2924 46USSAT9 1 Your Honor, 2008 is a book. We can give the court the 2 original. The original book is in Arabic. However, the 3 translation that we submitted, 2008T, which was actually he 4 inadvertently not submitted the the first time and attached to 5 a subsequent fax -- we can give the court another one -- is 6 just a translation of the cover which is the only part of the 7 book that we would like to have published to the jury as 8 translated. 9 So with respect to 2008T there should be a one-page 10 translation of the cover. 11 With respect to 20035, that might have just been an 12 inadvertent omission and I have a copy here if I can pass it up 13 to the court. 14 THE COURT: All right. 15 MR. BARKOW: I have another copy of 2008T, your Honor, 16 if the court would like that. 17 THE COURT: All right. 18 MR. TIGAR: While they are looking, your Honor, we 19 have located an extra copy of that response to the motion in 20 limine and the cover letter that went with it. May I hand that 21 up to your Honor's law clerk? 22 THE COURT: Sure. 23 MR. TIGAR: With Mr. Morvillo's kindness. 24 THE COURT: All right. 25 Let me raise a question with respect -- or at least an SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2925 46USSAT9 1 observation with respect to 2070, which was the first. 2 The objection, as I read it, is an objection, and you 3 can correct me if I am wrong, it's objections on behalf of miss 4 Stewart and Mr. Yousry and the objections as finally submitted 5 are relevance and 403. 6 Preliminarily it would appear to me that it's relevant 7 for many of the same reasons that other speeches of Sheikh 8 Rahman were relevant to, among other reasons, his state of mind 9 as a co-conspirator in Counts 1 and 2, his understanding of 10 jihad as a means of his release from custody, and it also 11 plainly goes to the state of mind of Mr. Sattar who had the 12 exhibit, and there is no viable 403 objection because the 13 relevance is not outweighed by any danger of unfair prejudice. 14 Now, the government in discussing 2070 discusses 2057 15 at the same time. Now, 2057, the objection to 2057 is, in 16 addition to relevance, it's an objection with respect to 17 hearsay and I didn't see a response in the government's letter 18 or in the government's argument with respect to hearsay. 19 MR. BARKOW: Your Honor, 2057 is also a statement by 20 Abdel Rahman and it is a statement of a co-conspirator 21 therefore and, therefore, is nonhearsay under 801(d)(2)(e). 22 THE COURT: I thought that is what you might have been 23 intending but the problem with that is that -- or at least the 24 issue with respect to that is that you have given me a long 25 paragraph explaining that you can date this as after January of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2926 46USSAT9 1 '96, right? 2 MR. BARKOW: Right. 3 THE COURT: And to be admissible against a hearsay 4 objection as a statement by a co-conspirator as nonhearsay, the 5 statement has to be made in the course of and in furtherance of 6 the conspiracy of which both the declarant and the objector 7 were members, during and in the course of and in furtherance of 8 the conspiracy, and the first conspiracy alleged in the 9 indictment is in April of 1997. There is a header which the 10 defendant points out with respect to CNN, which is in 1998, and 11 I don't know whether this is independently able to be placed as 12 during and in furtherance of the conspiracy, but that is why I 13 read the letter and I was -- and it says with a flourish that 14 it can be placed after January '96. Now, there are other 15 arguments which are sometimes made but I wanted to find out 16 exactly what the position was. 17 MR. BARKOW: Well, your Honor, with respect to the 18 statements in furtherance of a conspiracy, I don't have the 19 case names at my fingertips, but it's my understanding that the 20 case law is that the conspiracy that is being furthered by the 21 statement need not be co-terminous with the conspiracy charged 22 in the indictment and -- 23 THE COURT: That is what I was sort of obliquely 24 referring to as there are other arguments which are made. 25 MR. BARKOW: And that is the argument we are making SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2927 46USSAT9 1 here, and it relates back into the similar argument, but this 2 one I think is squarely supported by case law, to the idea of 3 the conspiracy-in-fact argument that I voiced before to your 4 Honor. In this context though we do -- I don't know the names 5 of the cases, but there is case law that supports the notion 6 that a statement by a co-conspirator can be made in furtherance 7 of a conspiracy even if that conspiracy is not exactly the same 8 in terms of the dates as that charged in the indictment. And 9 so it's our theory that once Abdel Rahman was imprisoned the 10 conspiracy was in existence in fact to commit acts of violence 11 in order to free him and this statement urging his followers to 12 commit such acts in order to secure his release, change his 13 conditions, what have you, constitute statements in furtherance 14 of the conspiracy in that sense, regardless of the fact that it 15 isn't overlapping with the charging dates of the indictment. 16 THE COURT: Well, you should send me a letter on that 17 tonight, first. And, second, if that is the theory, then of 18 course it would also have to meet all of the other standards 19 under Bourjaily for a statement during in and furtherance of 20 that conspiracy and as long as the issue is out there it 21 would -- I would also have to tell the jury, if that is the 22 theory of admissibility, that the statement is taken subject to 23 connection and that what that means is the jury can consider 24 the statement unless at some time I direct them not to consider 25 the statement. So that it satisfies the procedures in Geaney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2928 46USSAT9 1 and Tracy. 2 MR. RUHNKE: Your Honor, just one comment on the 3 foundation aspects of 801(d)(2)(e) evidence is also the issue 4 of membership and it is our position that there are not facts 5 sufficient from which one can infer or a jury can infer or find 6 that Mr. Yousry was a member of any conspiracy back whenever 7 this statement was made. The indictment doesn't do it. The 8 indictment is just the allegation. 9 THE COURT: Oh, but isn't it also the case that if a 10 person joins a conspiracy that the person is charged even with 11 the statements that were made prior to the time that the person 12 joined the conspiracy? 13 MR. RUHNKE: Yes, but he -- 14 THE COURT: And the issue with respect to whether a 15 person was a member of the conspiracy would be one of those 16 issues that would be subject to the instruction to the jury 17 that I am taking this subject to connection. 18 MR. RUHNKE: Yes, I agree. Ultimately your Honor has 19 to make the the finding. 20 THE COURT: Yes, I have to make the finding at the 21 conclusion of the evidence under Geaney. 22 MR. RUHNKE: The point being that all of this is 23 subject to connection and subject to being stricken if at the 24 end of the government's case the Bourjaily foundational 25 requirements have not been met as to Mr. Yousry or as to if I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2929 46USSAT9 1 one else. I don't want to go by the question of membership as 2 well. 3 THE COURT: No, I -- 4 MR. RUHNKE: We seem to be on the same page on that. 5 THE COURT: Yes, I understand that if there is any 6 statement that is taken subject to connection because there is 7 a hearsay objection and I am taking it because it's an alleged 8 co-conspirator statement that it would be taken both subject to 9 connection and I would tell the jury that subject to connection 10 means that they can consider it unless I tell them it's 11 stricken. 12 Over and above the issue of taken subject to 13 connection, there would be a nonhearsay basis for taking that 14 statement against Mr. Sattar for Mr. Sattar's state of mind 15 having that statement. So at the very least the instruction 16 would probably should be, though I am certainly prepared to 17 listen to counsel, that the statement is taken for purposes of 18 the affect that it had on Mr. Sattar's state of mind and with 19 respect to the other defendants it's taken subject to 20 connection, which means that they can consider it unless at 21 some point I tell them not to consider it. 22 MR. RUHNKE: Yes, your Honor. While we are on that 23 topic of state of mind and subject to connection, we have had 24 discussions with the government about the 403 aspect or the 25 aspect of 403 that has to do with jury confusion of the issues SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2930 46USSAT9 1 and we are getting to an agreement where the government is 2 going to, by the time this goes to the jury, identify by 3 sticker, by cover sheet, by some mechanism the purposes for 4 which documents were admitted when there are limited purposes 5 and defendants against whom the documents were admitted when 6 they were admitted as to all defendants, as to Sattar only, as 7 to Sattar and Stewart only. I don't know if there are only 8 Yousry documents only that are down the pike, but we are 9 working on a mechanism and we will let you know when we get it 10 worked out to try to solve that problem so the jury can at 11 least pick up an exhibit and say, oh, I can't consider this 12 against Yousry. 13 THE COURT: That is fine. That would be good. 14 You know, you would expect that this is a case where 15 given the fact that there are only three defendants, that this 16 is not nearly as complicated as some of the other cases where 17 there were far more defendants and the jury would have to keep 18 far more discrete offers but I agree with you that that is a 19 very good suggestion. 20 MR. RUHNKE: In other cases generally you have an 21 overarching conspiracy that gets everybody into it, and here we 22 have separate conspiracies charged running in the same 23 indictment, some of which involve only a single defendant. 24 THE COURT: Yes, but there is one overarching 25 conspiracy, Count 1. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2931 46USSAT9 1 MR. RUHNKE: I agree, but when you have a conspiracy, 2 for example, as the Count 2 conspiracy where the only defendant 3 on trial who is involved in the Count 2 conspiracy is 4 Mr. Sattar and many documents relate only to that conspiracy, 5 we are trying to make it less confusing. 6 THE COURT: I think that is a very good idea. I 7 thought that we really only finished, although we are at the 8 second week we had a problem of a juror not being here, the 9 first week was taken up with not only finishing jury selection 10 but opening statements, so that we have had about one week of 11 testimony, and I think that is an awful lot that has gone on in 12 the course of that week, so I am not -- I hope that things are 13 moving expeditiously and that the estimates that this will take 14 as long as it was thought might not be true. 15 MR. TIGAR: Your Honor, I do have, did have, and would 16 have an argument about 2057 and 2070. I would like to reserve 17 it until we see the government's letter. I think that is more 18 efficient. 19 THE COURT: Fine. 20 MR. TIGAR: I would point out, so that maybe they can 21 respond to it, that in their various papers, which I had 22 understood the court to treat as a bill of particulars, the 23 papers and argument, they have identified different 24 conspiracies over different periods with different participants 25 and to the extent that they are going to come up with a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2932 46USSAT9 1 conspiracy theory to get this document in, if indeed this is a 2 different or new or a change, then we would have to address the 3 question whether the criminal Rule 7 requirements about 4 amending a bill would apply. 5 The other thing that would apply is if this conspiracy 6 is thought to be a crime, wrong or act charged now against Ms. 7 Stewart although uncharged in the indictment, then the 8 government would have to answer why we haven't had a 404(b) 9 notice about it. And that is in addition to the evidentiary 10 issues and lord knows I do have something to say and I will 11 just wait until tomorrow. 12 One more thing. I do intend to send your Honor a 13 letter about the Yldiz case. Not to argue about a ruling 14 already made but in anticipation that we may be back over this 15 ground again, I will try to do that within the next day or so. 16 I intend by that no disrespect, but it is something I would 17 like to do. 18 THE COURT: Okay. And the government can also 19 respond. 20 I have two observations with respect to the newspaper 21 articles which are government exhibits 2004, 5, 6 and 7, and 22 these are offered only against Mr. Sattar, so they would be 23 subject to two limiting instructions. One, they are considered 24 only against Mr. Sattar, and, 2, they are newspaper articles so 25 they would be subject to the limiting instruction that Mr. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2933 46USSAT9 1 Fallick asked me to give, which was similar to a limiting 2 instruction that I have given before with respect to newspaper 3 articles. So they are subject to 2 limiting instructions. My 4 first question is really for the defense, which is those who 5 object to the newspaper articles, is there any case where the 6 courts have said that being subject to those -- to limiting 7 instructions like that, that the jury couldn't follow such 8 limiting instructions? It appears to me that there are lots of 9 cases where the kinds of limiting instructions and the kinds of 10 evidence that the jury is being asked to subject to limiting 11 instructions are on their face far more difficult, and 12 Richardson does go through a lot of those cases, and Sovairo 13 also talks about the fact that even inconsistent defenses are 14 not a basis for severance. 15 Is there any kind of a similar case? 16 MR. TIGAR: I will relook overnight. 17 I have two brief observations, however, about your 18 Honor's point. Sovairo and the Court of Appeals' decisions 19 hold that a decision denying severance is almost never 20 reversed. They also say that limiting instructions are almost 21 always going to be all right as not to cause reversal. You 22 know, the appellate law on Rule 14, your Honor, is rather like 23 Jonathan Swift's argument about precedence, and I respectfully 24 suggests that it really represents a kind of outer limit and 25 not a counsel to the court about how the court -- I mean, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2934 46USSAT9 1 everybody inside this bar has tried a lot of lawsuits and we 2 understand about jurors. In the present climate the question 3 about limiting instructions, given the problems about sort of 4 guilt-by-association feelings in society at large, I 5 respectfully suggest to wade here and we can talk about it more 6 but I want to put out that idea. 7 And the second one is, your Honor, I have most of my 8 life been a defense lawyer. I have been a member of the 9 prosecution team in two major terrorism cases in two countries. 10 We never thought that the fact that a militant person who 11 collects newspaper articles should by dint -- that that said 12 anything about it and it is the minimal relevance of the fact 13 that Mr. Sattar collects newspaper articles about a case in 14 which he was a paralegal that also weighs here, your Honor, and 15 it concerns me. It's guilt by newspaper subscription, and 16 although I know that there are cases, and if you read the Smith 17 act cases in 3 67 U.S. beginning at page 203, I think, we know 18 how those cases went but it's that concern, your Honor, that 19 undergirds a great deal of what we are doing here. 20 I am not going to make a stump speech about it, your 21 Honor, but it bothers me and it has bothered me from the 22 beginning and I am sure it will come up again. 23 THE COURT: Well, that was going to be the question to 24 the government actually, which was you have gone apparently 25 some ways toward reaching some accomodation with respect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2935 46USSAT9 1 newspaper articles and the real question that I have for the 2 government with respect to newspaper articles is there are 3 levels of knowledge and notice and the fact that the parties 4 are attempting to cut back on here is the complete does ear of 5 all of the newspaper articles that were found in this person's 6 possession in view of the different things that are included in 7 newspaper articles. The question is what is the specific 8 notice that goes to state of mind for which the newspaper 9 articles are being offered and can the newspaper articles 10 reasonably be redacted, for example. One of the issues is one 11 of the defendants who plainly was present at the last trial 12 obtains direct knowledge of some of this. Another defendant, 13 such as Mr. Sattar gets it indirectly but still gets notice. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2936 46UMSAT10 1 THE COURT: But notice of what? How important is that 2 notice to the state of mind at issue in the case And these 3 other newspaper articles being compared to what, if anything, 4 should be done about these newspaper articles. 5 And the other question, of course, is whether there is 6 anything about the newspaper articles that interferes at all 7 with the sort of careful stipulation that had been arrived at 8 by the parties and my limiting instruction with respect to the 9 prior conviction. 10 I do begin with the proposition that there are 11 purposes of the newspaper articles and that there are two 12 limiting instructions that would be given and juries are 13 expected to follow limiting instructions and there are much 14 harder limiting instructions to be followed than any of these 15 instructions. But I'm also attentive to the issue of not 16 relying excessively on notice from newspaper articles. 17 I realize that the newspaper articles are supplemented 18 by other things. In fact, Mr. Sattar is quoted in the 19 newspaper articles himself. Of course, I don't know whether 20 any of those quotations are accurate or not accurate. 21 Newspaper articles are hearsay. But those are at least the 22 issues in my mind to be addressed. 23 MR. BARKOW: Your Honor, I'll try to address as many 24 of them as I can. 25 First of all, this is not at all -- we are not at all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2937 46UMSAT10 1 trying to establish guilt by a newspaper subscription. We are 2 trying to establish what the Court recognized in its comments, 3 that is, knowledge by Mr. Sattar of what happened in Sheikh 4 Abdel Rahman's trial. It is quite different to establish 5 against Ms. Stewart, who is clearly and obviously there, than 6 it is against Mr. Sattar, who had a different connection to the 7 trial and the result; and, therefore, with respect to these 8 articles that we are focusing on, the purpose for it is to show 9 that Mr. Sattar knew what happened at that trial and was aware 10 of it and aware of what happened. 11 It is not guilt by association. It is just a means of 12 gaining knowledge. And it is, for example, one of the ways 13 that I know most of the things that I know about what's 14 happening in the world because I read the newspaper. And 15 although the newspaper can be wrong and that argument is 16 available to Mr. Sattar, it is a means of imparting knowledge 17 and it is one of the ways in which Mr. Sattar knew what 18 happened. 19 I have to say I don't -- Mr. Sattar, as the Court 20 knows, is not objecting to these exhibits and so these are 21 offered because they are a means and one of the ways we could 22 establish his knowledge of what happened to the Court, And that 23 has nothing to do with Ms. Stewart. 24 We agree with respect to Exhibit 2010, which was 25 another pile of newspapers, because those exhibits are totally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2938 46UMSAT10 1 different than these. These exhibits, the 2004, 2005, 2006, 2 relate to Sheikh Abdel Rahman's trial and we want to use them 3 to show that Mr. Sattar knows what happened there and what the 4 result was. Exhibit 2010 are a pile of articles that related 5 to the first World Trade Center bombing in 1993. And the 6 reason that we agreed and have agreed with respect to that set 7 of articles to take it and substitute a stipulation is because 8 the content of those articles beyond the fact of collection and 9 the subject matter is not -- we are not trying to establish the 10 content of the articles that was known to him. That is an 11 example of the fact that Mr. Sattar had a clippings file of 12 that event which shows an interest in that event. 13 Some of the articles have notations in handwriting. 14 They are cut from the newspaper, which shows that his attention 15 was focused on them enough to cut them out, And it is an 16 interest. We can use that to argue that he has an interest in 17 and a curiosity in an event that predated his work as a 18 paralegal. And just like some other person who might collect 19 stamps, that collection would show they have an interest in 20 stamps; this shows he has an interest in that. And the 21 argument is available that he might have collected it for some 22 other reason. That's a different purpose and that's why we 23 agreed to a stipulation with that, than the 2004, 2005, 2006 24 exhibits where we are actually trying to show that he knows 25 what is said in the articles. He knows what was reported and, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2939 46UMSAT10 1 therefore, he has knowledge of that, And the stipulation that 2 we agreed to about the conviction and was agreed to so that 3 those facts can be established for the truth of the matters 4 asserted, that Abdel Rahman was in fact convicted, was in fact 5 sentenced, and was in fact convicted of particular offenses and 6 dates and that sort of thing. 7 This evidence is offered to show Mr. Sattar's 8 knowledge. And the fact of the conviction is not necessarily 9 known to Mr. Sattar. And what happened at the trial is not 10 necessarily known to Mr. Sattar. And what Abdel Rahman was 11 convicted of is not necessarily known to Mr. Sattar, just by 12 virtue of the fact that the conviction occurred. 13 THE COURT: I bet that you could get a stipulation on 14 that without much effort. I don't know. I don't require 15 parties to stipulate. 16 MR. BARKOW: I am not sure, your Honor, what we would 17 stipulate to. I don't imagine there would be a stipulation to 18 this, that Mr. Sattar knew that Abdel Rahman was convicted of 19 seditious conspiracy for leading a bombing and assassination 20 campaign and solicitation and conspiracy to kill President 21 Mubarak and solicitation to attack a military installation and 22 bombing conspiracy for providing advice on targets. 23 Then the allegation is that Mr. Sattar took the lead 24 or participated with others in taking the lead to disseminate 25 Abdel Rahman's directive to commit acts of violence. I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2940 46UMSAT10 1 think -- maybe I'm wrong -- that there would be a stipulation 2 that Mr. Sattar did that knowing that it might be effective, 3 that it might actually cause something to happen because those 4 are the kinds of things that Mr. Sattar knew Abdel Rahman was 5 purported to be involved in. 6 That's one point. Another point is the mere fact that 7 Sattar chose to keep these articles is probative. He didn't 8 keep every article from 1995. Some of these articles were 9 found together, And that is a significant fact. The particular 10 type of clippings file is probative of an interest in a 11 particular area, And it may have different explanations. It 12 may have innocent explanations. But that seems to be an issue 13 that goes to weight and it is for the jury to decide what the 14 explanation is, if there is one, for the possession of that 15 collection. 16 And so I guess the point is, we view the stipulation 17 that we entered into and -- with respect to the conviction 18 itself and also the stipulation that we have agreed to with 19 respect to Exhibit 2010, the 1993 World Trade Center bombing 20 articles, as being very different because they all raise 21 different issues and we want to use them for different 22 purposes. 23 And because, as the Court recognized at the beginning 24 of its comments that Zafiro and Richardson and the cases 25 establish that juries can keep things straight and use them for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2941 46UMSAT10 1 appropriate purposes. And if the person against who these are 2 being offered does not object, I don't feel a desire to engage 3 in a discussion with Mr. Tigar for a stipulation as to an 4 exhibit that isn't even offered against his client and that the 5 jury is presumed not to use against his client because to the 6 government he doesn't really have an issue here with these 7 exhibits because the jury is going to be presumed to apply them 8 and use them against a defendant who doesn't object. 9 MR. TIGAR: Your Honor, very briefly, remember, there 10 was a screen, couple of screens ago -- and I don't know if your 11 Honor saw it -- that has the name Hosni Mubarak. It was from 12 the Times article. When I negotiated that stipulation with 13 Mr. Barkow -- I am sure he will confirm this -- originally he 14 wanted the Hosni Mubarak language in there. For obvious 15 reasons, I told him that was a nonstarter. We just never were 16 going to agree to that. And the reason was that it was just 17 too close to what was being talked about in this indictment. 18 And that screen is what got me started on the spillover aspect 19 of this. I am not going to argue about limiting instructions 20 or this and that. I am saying that was my intent when I 21 entered the stipulation. 22 THE COURT: Mr. Fallick. 23 MR. FALLICK: Your Honor, mindful of your Honor's 24 observations about the newspaper articles and the concerns of 25 our fellow counsel, I think we might be able to work out a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2942 46UMSAT10 1 stipulation with the government as we did certain other 2 articles. Certainly, we can try to do that. 3 MR. RUHNKE: Your Honor, just to weigh in for the 4 third defendant, yes, it is not being offered against us and 5 our issue and the 403 issue is that the risk that the jury 6 would not follow the limiting instruction we think because of 7 the nature of these materials is simply too great for 8 Mr. Yousry to risk. 9 MR. BARKOW: Your Honor, we will talk with Mr. Sattar 10 because those discussions have in the past proven fruitful. 11 But with respect to the stipulation -- and I will confirm that 12 in my discussion with Mr. Tigar. He said that the inclusion of 13 Hosni Mubarak for the truth of the matter asserted was a 14 nonstarter for him and we agreed to take it out for the truth 15 of the matter asserted. That is true. That is what we 16 discussed. 17 But I think he, too, would agree that in the same 18 conversation he said to me -- and I'm essentially quoting 19 because I remember this -- he said: You guys are going to get 20 all the rest of this in anyway in other ways. So he knew when 21 we entered into this stipulation that this issue was going to 22 come up. We did not and he at least would agree that it was 23 explicit that we did not enter into this stipulation with any 24 expectation that it would tie our hands later in terms of other 25 evidence because Mr. Tigar knew we had this evidence. I'm not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2943 46UMSAT10 1 saying he agreed that we would admit it, but he knew it was out 2 there and he knew that that stipulation discussion was confined 3 to evidence offered for the truth, for the truth of the matter 4 asserted, and this is different. And this evidence is not 5 offered against Ms. Stewart. 6 THE COURT: I plainly am not going to get in the 7 middle of negotiations among the parties. There is an offer to 8 attempt to work out some stipulation. There are levels to be 9 considered. There really are. And the notes about the 10 government would be able to get this information in any way 11 could be read either as the importance and admissibility of 12 underlying evidence at the first trial for a variety of 13 reasons, from notice to the defendants, to the other ways in 14 which that evidence is relevant, which is a different question 15 from the effect of the jury verdict in the first trial, which 16 raises different issues. And it is why I gave such a careful 17 instruction with respect to the conviction in the first case. 18 That's separate from all of the evidence and the ways 19 in which that evidence is admissible. Admittedly, that's a 20 separate issue from notice to the -- to each of the parties 21 about what happened in the first trial. All I'm saying is that 22 it is very important to keep the issues carefully defined. 23 MR. BARKOW: We agree, your Honor. That's why we 24 don't see them as related, because that evidence was discussed 25 and agreed upon, presented in its context, and at least with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2944 46UMSAT10 1 respect to me -- and I was quite certain when it was happening 2 with respect to Mr. Tigar, with whom I discussed it, it was a 3 carved-out issue when we were talking about that. We don't 4 think that we should be -- I don't know -- because we have been 5 reasonable and willing to discuss things and take out certain 6 things in certain contexts why we need to basically take all of 7 our evidence and replace it with stipulations. There is a 8 difference when a person has a clippings file on something and 9 shows a level of curiosity and interest and knowledge of an 10 incident which is different than a stipulation signed by 11 parties. It is a different piece of evidence. It has got 12 different weight. 13 And it shows -- it has Old Chief factors to show that 14 that kind of evidence is more persuasive. And that's why we 15 want to use it subject to a limiting instruction and with 16 respect to the offer of the truth of the matter asserted for 17 Abdel Rahman's convictions, recognizing that that is different 18 because the truth of the matter asserted, that Abdel Rahman was 19 guilty of trying to kill Hosni Mubarak, or whatever exactly the 20 phrase was, when it is offered for the truth of the matter 21 asserted is more powerful. 22 It can't be cabined because there are no limits and we 23 can argue whatever we want from it. But when evidence is 24 admitted for the sole purpose of knowledge against a particular 25 defendant, we are very limited in how we can use it in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2945 46UMSAT10 1 argument. We can't imply or suggest that it is usable against 2 anyone else. The Court will instruct the jury that it can't be 3 usable against anyone else for any other purpose. But the 4 evidentiary richness of the exhibit is just different when it 5 is a pile of newspaper articles clearly meticulously kept and 6 clipped that show that someone paid special attention to these 7 facts. That's just a big difference in terms of its probative 8 value and the moral effect it may have on the jury in reaching 9 its decision. And that's why we don't -- we are not very 10 interested in stipulating on this exhibit. We will talk to 11 Mr. Sattar, but we just -- we don't feel as though we should 12 need to stipulate because of objections that are being voiced 13 by defendants who we all will presume the evidence will not be 14 used against at all, much less improperly. 15 MR. RUHNKE: Your Honor, I don't know who the Supreme 16 Court justice was who said something to the effect that the 17 idea of juries -- the idea of juries following limiting 18 instructions, all practicing lawyers know to be other fiction. 19 We indulge the presumption and we indulge -- and the cases say 20 so -- there are rare cases such as Bruton which say that the 21 risk that the jury not be able to follow limiting instruction 22 under certain circumstances are too great to risk. 23 What I would suggest very practically at this juncture 24 is that we allow the parties the opportunity to discuss these 25 issues further. We actually made some headway in resolving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2946 46UMSAT10 1 these, that we not push people up against their final position 2 by argument which has a way of freezing people in their 3 positions. 4 THE COURT: Very reasonable. I attempted to set out 5 the consideration on both sides. I fully appreciate the law 6 with respect to Richardson and Zafiro, and I raised issues on 7 the other side, and I think the parties can properly discuss 8 them, and I agree with you. 9 MR. RUHNKE: I don't see the urgency to resolve all of 10 the Sattar issues as distinct from the tape issues where the 11 witness is coming on on Tuesday right now. There is lots of 12 evidence that's in evidence that can be presented to the jury. 13 I think the discussions might be proper among everybody. I 14 offer that to the government to see if the government agrees, 15 to see if we can try to resolve them all by tomorrow. 16 THE COURT: Again, I'm happy to put some -- I don't 17 want to hold the parties up unnecessarily. I think it is a 18 good idea for you to talk. 19 MR. BARKOW: Your Honor, we will talk, but this, as 20 the Court, I think, can probably discern, as between the 21 government and Ms. Stewart, there is a fundamental disagreement 22 here as to whether juries follow their instructions. And 23 because we think they do in virtually all circumstances and 24 they think that they don't, I don't think we are going to reach 25 an agreement that satisfies them as to the evidence that's not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2947 46UMSAT10 1 offered against them, but we will try. 2 MR. TIGAR: Your Honor, my faith about whether juries 3 follow instructions is somehow unrelated to my understanding of 4 what the law is that presumes that they do and, therefore, I 5 think Mr. Barkow has reason for more hope than he now expresses 6 about the prospects of agreement. 7 THE COURT: I'll certainly deal with the issue of the 8 witness who has to testify on Tuesday and I'll get the 9 government letter on the issue with respect to 2057. And I'll 10 listen to the parties for anything they want to tell me. I am 11 not sure how many of the Sattar documents I am going to have to 12 get into tomorrow to resolve. I did want to at least set out 13 some of the issues for you. 14 MS. BAKER: Your Honor, what was your final 15 announcement about what time tomorrow morning? 16 THE COURT: I think 10:00 will be fine. 17 (Adjourned to Thursday, July 1, 2004, at 10:00 a.m.) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2948 1 INDEX OF EXAMINATION 2 Examination of: Page 3 KARA CHRISTENSON 4 Direct By Mr. Dember . . . . . . . . . . . . 2786 5 Cross By Mr. Tigar . . . . . . . . . . . . . 2806 6 Cross By Mr. Ruhnke . . . . . . . . . . . . 2850 7 Redirect By Mr. Dember . . . . . . . . . . . 2855 8 Recross By Mr. Tigar . . . . . . . . . . . . 2859 9 Recross By Mr. Ruhnke . . . . . . . . . . . 2859 10 NANETTE H. SCHUMAKER 11 Direct By Mr. Barkow . . . . . . . . . . . . 2861 12 Cross By Mr. Fallick . . . . . . . . . . . . 2898 13 Redirect By Mr. Barkow . . . . . . . . . . . 2907 14 Recross By Mr. Fallick . . . . . . . . . . . 2908 15 GOVERNMENT EXHIBITS 16 Exhibit No. Received 17 360-366 . . . . . . . . . . . . . . . . . 2793 18 319-329 . . . . . . . . . . . . . . . . . 2799 19 370 . . . . . . . . . . . . . . . . . . . 2805 20 363A . . . . . . . . . . . . . . . . . . 2853 21 366A . . . . . . . . . . . . . . . . . . 2854 22 3542E . . . . . . . . . . . . . . . . . . 2866 23 2082A-2082EE . . . . . . . . . . . . . . 2869 24 2085 . . . . . . . . . . . . . . . . . . 2893 25 2000, 2009, 2009A, 2032, 2036, 2047S, 2049S 897 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 2949 1 2050A through 2050L, 2053, 2056, 2058 . . 2897 2 2061, 2062, 2063, 2069, 2072, and 2081 . 2897 3 DEFENDANT EXHIBITS 4 Exhibit No. Received 5 LS-14 and LS-15 . . . . . . . . . . . . . 2846 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
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