7 July 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 18 of the proceeding and Day 9 of the trial.

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

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

        2    ------------------------------x
        4               v.                           S1 02 Cr. 395 (JGK)
        5    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        6    and MOHAMMED YOUSRY,
        7                   Defendants.
        8    ------------------------------x
        9                                         New York, N.Y.
       10                                         July 7, 2004
       10                                         9:30 a.m.
       11    Before:
       12                          HON. JOHN G. KOELTL
       13                                            District Judge
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1                              APPEARANCES
        2    DAVID N. KELLEY
        2         United States Attorney for the
        3         Southern District of New York
        3    ROBIN BAKER
        4    ANTHONY BARKOW
        5    ANDREW DEMBER
        5         Assistant United States Attorneys
        6    KENNETH A. PAUL
        7    BARRY M. FALLICK
        7         Attorneys for Defendant Sattar
        8    MICHAEL TIGAR
        9         Attorneys for Defendant Stewart
       10    DAVID STERN
       11    DAVID A. RUHNKE
       11         Attorneys for Defendant Yousry
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1             (Trial resumed)
        2             (In open court; jury not present)
        3             THE COURT:  Good morning all.  Please be seated.
        4             Are we ready to call in the jury?
        5             MR. DEMBER:  Yes, we are, your Honor.  Shall I call
        6    the first witness and place him on the stand?
        7             THE COURT:  Yes, please.
        8             MR. RUHNKE:  Before the jury comes in, we received Mr.
        9    Barkow's letter.  I got it the first thing this morning.  I
       10    would like an opportunity to reply to it orally or in writing.
       11             THE COURT:  Absolutely.
       12             Which would you prefer?
       13             MR. RUHNKE:  Orally is fine, your Honor.
       14             THE COURT:  Okay.
       15             MR. FALLICK:  May I speak to Mr. Barkow before we
       16    bring the jury in for a moment?
       17             THE COURT:  Absolutely.
       18             All right.  Mr. Ruhnke stepped out?
       19             MR. STERN:  He did, Judge.  He had to get something.
       20    He will be back in a moment.
       21             THE COURT:  I will wait.
       22             MR. BARKOW:  Your Honor, while we are waiting for Mr.
       23    Ruhnke, can I confer again with Mr. Fallick?
       24             THE COURT:  Yes.
       25             All right, are we ready for the jury?
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1             MR. DEMBER:  Yes, your Honor.
        2             THE COURT:  Okay.
        3             Let's bring in the jury.
        4             (In open court-jury present)
        5             THE COURT:  Please be seated all.
        6             Good morning, ladies and gentlemen.
        7             Good to see you all.
        8             We are doing a little better on time, so I am glad
        9    that we didn't have to keep you waiting too long this morning
       10    and, as I say, it's good to see you.
       11             All right, the government may call its next witness.
       12             MR. DEMBER:  Your Honor, the government calls Patrick
       13    Killeen.
       14     PATRICK KILLEEN,
       15         called as a witness by the Government,
       16         having been duly sworn, testified as follows:
       18    BY MR. DEMBER:
       19    Q.  Mr. Killeen, let me just remind to you speak in a loud,
       20    clear voice and speak into the microphone in front of you so
       21    that everyone can hear your testimony.
       22             Mr. Killeen, by whom are you employed?
       23    A.  I am employed by North Hamptonshire Police.
       24    Q.  Where is North Hamptonshire?
       25    A.  It's in the midland area of England.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  That is in Great Britain?
        2    A.  In Great Britain, yes.
        3    Q.  What is your position with the North Hamptonshire Police
        4    Department?
        5    A.  I am a detective constable.
        6    Q.  And how long have you held that position?
        7    A.  For 24 years.
        8    Q.  By the way, where is North Hamptonshire in relationship to
        9    London, England?
       10    A.  It's about 70 miles.
       11    Q.  70 miles from London?
       12    A.  Yes.
       13    Q.  And --
       14             THE COURT:  Please speak into the microphone so
       15    everyone can hear you.
       16             THE WITNESS:  I am sorry.
       17    Q.  And how long have you held the position of detective
       18    constable?
       19    A.  Approximately 20 years.
       20    Q.  Do you have occasion to work with New Scotland Yard?
       21    A.  Yes, I do.  I am actually attached to the special unit,
       22    operations unit, in Scotland Yard.
       23    Q.  And what do you actually do as a member of that special
       24    operations unit?
       25    A.  I am a forensically trained scene manager and exhibits
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    officer.
        2    Q.  And what do you do?  What do you actually do in that
        3    position?
        4    A.  During the course of searches I carry out duties to obtain
        5    and maintain exhibits.
        6    Q.  Is that from searches that you have conducted?
        7    A.  That is correct, sir.
        8    Q.  And how long have you held that position?
        9    A.  For the last 8 years.
       10    Q.  Now, let me direct your attention back to October 23, 2001.
       11    Did you participate in the search of a premises on that day?
       12    A.  I did, sir.
       13    Q.  And what was the location of the search that you conducted?
       14    A.  It's 99A Bell Street in Paddington, London.
       15    Q.  And what part of London is that?
       16    A.  Well, the area is called Paddington.  It's approximately 5
       17    miles from the center of London.
       18    Q.  And what type of premises was at that location?
       19    A.  It's a book shop.
       20    Q.  And do you know what kind of book shop it was?
       21    A.  Yes, it's predominantly Islamic Arabic books.
       22    Q.  Did you go to that location on that day?
       23    A.  I did, sir.
       24    Q.  And had you ever been to that location before that day?
       25    A.  No, sir.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  Do you recall if there was a name on the bookstore itself?
        2    A.  From memory I believe it said something like Islamic Books,
        3    but I am not certain of that.
        4    Q.  Now, before you went to that location or actually entered
        5    that location, did you have a court-authorized search warrant
        6    to actually enter those premises?
        7    A.  We did, sir.
        8    Q.  And did that search warrant call for you to seize certain
        9    items?
       10    A.  Yes, sir.
       11    Q.  And in general terms, what did the search warrant allow you
       12    to seize at that location?
       13    A.  Computers, papers, and any other material pertaining to
       14    that warrant.
       15    Q.  Did you actually obtain the search warrant yourself?
       16    A.  No, sir.
       17    Q.  Did another one of the officers or detectives do that?
       18    A.  Yes, they did.
       19    Q.  Now, how did you gain entry on that particular day to these
       20    premises?
       21    A.  Another search was being carried out at another address and
       22    keys that were found at that other address to do with the shop
       23    were delivered to me and I gained entry using those keys.
       24    Q.  And when you entered the premises on that day, was there
       25    anyone present?
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    A.  No, it was empty.
        2    Q.  And approximately what time of day did you enter 99A Bell
        3    Street?
        4    A.  Approximately 7:15 a.m.
        5    Q.  Could you describe for us briefly the premises as you
        6    observed them, as you entered them that day?
        7    A.  Yes, it's a very narrow shop on one level.  To the left as
        8    you enter the shop was a desk with papers strewn all about and
        9    computer equipment.  Immediately in front of the desk was piles
       10    of books and behind the desk were rows of bookshelves.  To the
       11    right of the shop were other shelving units filled with books
       12    and other items.
       13             To the middle aisle of the shop were racks of clothing
       14    and at the end of the shop was a curtain area and as you go
       15    into the curtain area there was a flight of approximately 7
       16    steps down to a lower area and then through that smaller area
       17    through to the back of the shop which was a toilet area for the
       18    staff.
       19    Q.  By the way, Detective Constable Killeen, other than
       20    conducting a search or other than searching those premises, did
       21    you have any other involvement in this case here?
       22    A.  There was one other premises I searched at another date but
       23    not pertaining to that particular individual.
       24             MR. DEMBER:  Your Honor, may I approach the witness?
       25             THE COURT:  Yes.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  Detective Constable Killeen, I have just placed before you
        2    a document which has been marked for identification as
        3    Government Exhibit 2702.  Do you recognize that document?
        4    A.  Yes, sir.
        5    Q.  And how do you recognize it?
        6    A.  It's the copy of a rough sketch plan that I made as I
        7    entered the shop.
        8    Q.  You prepared that sketch?
        9    A.  Yes, I did, sir.
       10    Q.  Is that sketch to scale?
       11    A.  No, sir.
       12    Q.  But does it fairly and accurately depict the way the shop
       13    was laid out and appeared when you entered it on that day?
       14    A.  It does, sir, yes.
       15             MR. DEMBER:  Your Honor, the government offers into
       16    evidence Government Exhibit 2702.
       17             THE COURT:  All right.  No objection.  Government
       18    Exhibit 2702 received in evidence.
       19             (Government's Exhibit  2702 received in evidence)
       20    Q.  By the way, there is a second page to the exhibit as well,
       21    is that correct?
       22    A.  That is correct, sir.
       23    Q.  What is the on the second page?
       24    A.  It's a rough sketch of the desk area I mentioned detailing
       25    the drawers and how I marked the drawers.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  And that is a desk that was inside the store itself?
        2    A.  It is, sir.
        3             MR. DEMBER:  Your Honor, may I display 2702 to the
        4    jury?
        5             THE COURT:  Yes.
        6    Q.  Detective Constable Killeen, would you just take us through
        7    the diagram starting at the entrance?  I think do you have it
        8    in front of you as well?
        9    A.  I do.
       10    Q.  Why don't you point where the entrance was to the store.
       11    A.  Just here is the shop doorway.  It's a single point of
       12    entry to the shop.  Immediately as you go into the shop the
       13    desk is just here.
       14    Q.  Is that the desk that appears on the second page of this
       15    exhibit?
       16    A.  It is, sir.
       17    Q.  Continue please.
       18    A.  Immediately before the desk was piles of various books and
       19    at the back of the desk were rows of book shelving, as is on
       20    the opposite side of the room there.  There were other rows of
       21    bookshelves in the middle of the area and behind those was the
       22    clothing rack.  Just here is the curtain area leading down into
       23    the steps, and then the toilet area at the very rear of the
       24    premises.  By the side of each step are storage areas where
       25    packages were stored.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  Now, Detective Constable Killeen, did you conduct the
        2    search by yourself?
        3    A.  No, sir.
        4    Q.  Who assisted you?
        5    A.  There was a detective inspector who because of our law
        6    system we have to have a detective inspector to execute that
        7    warrant.
        8    Q.  Is he a higher ranking officer than yourself?
        9    A.  Yes, sir.
       10    Q.  Go ahead.
       11    A.  Then I had two search officers who were under my control
       12    and also an interpreter for any foreign-language material that
       13    we found.
       14    Q.  And what language did the interpreter speak?
       15    A.  Arabic.
       16    Q.  Now, would you describe for us how you actually conducted
       17    your search that day?
       18    A.  Initially I went into the shop on my own and carried out
       19    what we call a safety check, which is basically just to make
       20    sure that there isn't any materials in there that could harm
       21    either myself or my colleagues or the general public.
       22             Once that was carried out, I carried out or prepared
       23    the sketch that you see in front of you and zoned off the areas
       24    that were to be searched so that we carry out a methodical
       25    search of the whole of the premises and don't leave anything or
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    miss anything.
        2             Once that has been prepared, I then called forward the
        3    other two searchers who assisted me in the search of the
        4    premises along with the interpreter who, as I say, interpreted
        5    any foreign-language material we had.
        6    Q.  Did you actually seize any items from the search?
        7    A.  I did, sir, yes.
        8    Q.  Detective Constable, would you press the right side of the
        9    screen there and it will erase those arrows.
       10             Thank you.
       11             MR. DEMBER:  Your Honor, may I approach the witness
       12    again?
       13             THE COURT:  Yes.
       14    Q.  Detective Constable, I have just handed you up four
       15    documents which have been marked for identification as
       16    Government Exhibits 2703, 2704, 2705 and 2706.
       17             Let's start with the first document which is marked
       18    2703.
       19             First of all, do you recognize that first document?
       20    A.  I do, sir.
       21    Q.  How do you recognize it?
       22    A.  This is the document that on the front of each of these
       23    exhibits we have an exhibit reference or front sheet, as we
       24    call it, which details the details of the exhibit and also
       25    where it was found.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  And who prepared that document?
        2    A.  I did, sir.
        3    Q.  And do you recognize that document that you prepared?
        4    A.  Yes, sir.
        5    Q.  And do you recognize the document behind the cover sheet?
        6    A.  Yes, sir.  It's a photocopy of the actual original exhibit
        7    that we took.
        8    Q.  And was that a document that was seized during your search
        9    of this bookstore?
       10    A.  It is, sir, yes.
       11             MR. DEMBER:  Your Honor, the government offers into
       12    evidence Exhibit 2703.
       13             THE COURT:  All right, no objection.  Government
       14    Exhibit 2703 received in evidence.
       15             (Government's Exhibit  2703 received in evidence)
       16             MR. DEMBER:  May I display it to the jury, your Honor?
       17             THE COURT:  Yes.
       18    Q.  Detective Constable, I am going to place the front page --
       19    that is the cover page that you prepared, is that correct?
       20    A.  Yes, that is correct, sir.
       21    Q.  And it indicates where you found this particular document?
       22    A.  Yes, sir.
       23    Q.  Where did you find this particular document?
       24    A.  It was in drawer B of zone B of the desk.
       25    Q.  That is the desk in the front portion of the store?
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    A.  That is, sir.
        2    Q.  I am going to turn to the second page of the exhibit.  Can
        3    you tell us, by the way, what the second and third pages of
        4    this exhibit are actually?
        5    A.  It's a reminder to pay your bill for a particular
        6    telephone.
        7    Q.  That is something from a telephone company?
        8    A.  Yes, it's British Telecom, the largest telephone company in
        9    Britain.
       10    Q.  And from this page that is currently on the screen, can you
       11    tell who it's addressed to?
       12    A.  Yes, it's addressed to a Mr. Y al-Sirri.
       13    Q.  Is that an address?
       14    A.  Yes, 102 Edinburgh House, Maidavale, London.
       15    Q.  That is not the address you were searching, is that
       16    correct?
       17    A.  No, sir.
       18    Q.  And does it indicate on this front page a telephone number
       19    that pertains to the particular customer?
       20    A.  Yes, sir, just here is the reminder and the telephone
       21    number is recorded as 020, which is the area code, 76246868.
       22    Q.  And if I move down the page, what is that amount of money
       23    there?
       24    A.  221 pounds 92.  That is the amount that is outstanding.
       25             THE COURT:  What currency is that in?
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1             THE WITNESS:  Pounds.
        2    Q.  That is British currency?
        3    A.  It is.
        4    Q.  Let me turn to the next exhibit.  Why don't you put that
        5    one aside.
        6             Let me ask you to look at what has been marked for
        7    identification as Exhibit 2704.  Do you have that in front of
        8    you?
        9    A.  I do, sir.
       10    Q.  Again, do you recognize this particular exhibit?
       11    A.  Yes, sir.
       12    Q.  And how do you recognize it?
       13    A.  I produced the front sheet and also the photocopy of the
       14    pages.
       15    Q.  Is this another document that you seized from the
       16    bookstore?
       17    A.  It is, sir, yes.
       18    Q.  And --
       19             MR. DEMBER:  Your Honor, the government offers into
       20    evidence Exhibit 2704.
       21             THE COURT:  All right, no objection.  Government
       22    Exhibit 2704 received in evidence.
       23             (Government's Exhibit Exhibit 2704 received in
       24    evidence)
       25             MR. DEMBER:  May I display it to the jury, your Honor?
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1             THE COURT:  Yes.
        2    Q.  Detective Constable Killeen, I am showing you again the
        3    first page of this exhibit, is that correct?
        4    A.  That is correct, sir.
        5    Q.  And that is a document you yourself prepared?
        6    A.  It is, sir, yes.
        7    Q.  Where was this particular document or the document behind
        8    the cover sheet actually seized from?
        9    A.  It was actually -- there was a large amount of papers
       10    strewn behind the desk in zone 1 at the shop and it was found
       11    amongst those papers.
       12    Q.  That is the desk towards the front of the store?
       13    A.  Yes, that is correct, sir.
       14    Q.  Let me turn the page to the second page of this exhibit.
       15    Can you tell the jury what kind of a document is this exhibit?
       16    A.  It's an information sheet to the subscriber of the
       17    telephone telling them that on that particular date that they
       18    were going to finish providing that service.
       19    Q.  And that is a document from a phone company?
       20    A.  It is, sir.
       21    Q.  What is the company actually?
       22    A.  It's World Online.  It's an Internet service provider.
       23    Q.  And on this second page of the exhibit, does there appear
       24    to be the name of a subscriber and address?
       25    A.  Yes, sir, it's Mr. Yasser al-Sirri, 102 Edinburgh House,
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    155 Maidavale, London.
        2    Q.  By the way, is there a date on the first page of this
        3    document?
        4    A.  Yes, it's dated Tuesday, the 5th of June, 2001.
        5    Q.  Constable Killeen, would you turn to the fifth page of the
        6    actual correspondence itself.  I am going to put it up on the
        7    screen here and you can look at the screen if you like.
        8             Is there on that page a telephone number listed?
        9    A.  Yes, sir.
       10    Q.  For the subscriber?
       11    A.  Yes, sir, towards the top of the page it's marked a phone
       12    number and the number recorded is 020732889 -- I am sorry, 988.
       13    Q.  And I am going to turn to the last page of the exhibit.
       14    Again, on this particular document does there appear the name
       15    of Mr. Al-Sirri?
       16    A.  Yes, sir, towards the top of the page.
       17    Q.  Is that the same address you read to us before?
       18    A.  Yes, sir.
       19    Q.  Thank you.
       20             Let me ask you to turn to what has been marked as
       21    Government Exhibit for identification as 2705.  Do you have
       22    that in front of you?
       23    A.  I do, sir, yes.
       24    Q.  Do you recognize this exhibit?
       25    A.  Yes, sir.  It is the exhibit I took.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    Q.  Is this also a document that you seized from 99A Bell
        2    Street?
        3    A.  It is, sir, yes, sir.
        4    Q.  And does the first page of this exhibit appear to be a
        5    cover page that you prepared?
        6    A.  It is, sir, yes.
        7             MR. DEMBER:  The government offers Exhibit 2705 in
        8    evidence.
        9             THE COURT:  All right, no objection, Government
       10    Exhibit 2705 received in evidence.
       11             (Government's Exhibit  2705 received in evidence)
       12             MR. DEMBER:  May I display it to the jury, your Honor?
       13             THE COURT:  Yes.
       14    Q.  Detective constable, first of all, as I am putting it up
       15    here on the screen, can you tell us what the underlying
       16    document of this exhibit is?
       17    A.  Yes, it's a telephone bill from the company One.Tel to
       18    Mr. Yasser al-Sirri.
       19    Q.  And, again, this is your cover sheet, correct?
       20    A.  I am sorry?
       21    Q.  This is the cover sheet you prepared?
       22    A.  Yes, it is, sir.
       23    Q.  Can you tell us where you found this particular document
       24    during your search?
       25    A.  Again, it was behind the desk area at the front of the
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    shop.
        2    Q.  I am going to turn to what is the next page of this
        3    exhibit.  Towards the top of the page does it indicate an
        4    address for the subscriber?
        5    A.  Yes, sir, it does.  It's not very clear because of the
        6    print.
        7    Q.  Can you read it for us?
        8    A.  Yes, it's 114A Cromwell Road, London, SW7, 4TP.
        9    Q.  Is there a telephone number for the subscriber listed on
       10    the document?
       11    A.  Yes, the telephone number is 0273319777.
       12    Q.  And is there a fax number also listed?
       13    A.  Yes, it's 02073319972.
       14    Q.  And also on that top portion of this particular page does
       15    it indicate the name of the subscriber?
       16    A.  Yes, the account name is Mr. Yasser al-Sirri.
       17    Q.  As you turn through the various pages of this exhibit, does
       18    it indicate where calls were made to from this particular phone
       19    number?
       20    A.  It does, sir, yes.
       21    Q.  And just tell us what are some of the places that calls
       22    were made to?
       23    A.  Egypt, Yemen, USA, Spain, Austria, Greece.
       24    Q.  Let me ask you to turn to -- including the cover page --
       25    the the third page of the exhibit and let me display it for the
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             477SSAT1                 Killeen - direct
        1    jury.
        2             Do you have that in front of you?
        3    A.  Yes, sir.
        4    Q.  I am going to point to three calls that apparently were
        5    made to the United States of America.  Do you see where I am
        6    pointing with my pen?
        7    A.  Yes, sir.
        8    Q.  Are those all to the same number?
        9    A.  They are, yes.
       10    Q.  Can you read the telephone number called that I am pointing
       11    to?
       12    A.  Yes, it's 0017184423513.
       13    Q.  And do you see that number anywhere else besides those
       14    three calls that are marked there?
       15    A.  Yes, further down the page there was another two calls made
       16    and, again, further again another one call made, and again
       17    right towards the end of the page.
       18    Q.  Let me direct you for a second.  Let's go back to those
       19    three calls in a row that we first identified.
       20    A.  Yes, sir.
       21    Q.  Can you tell from the exhibit the date those calls were
       22    made to that number?
       23    A.  Yes, in the second column the date and the time are
       24    recorded and also the duration of the calls.
       25    Q.  What are those dates?
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             477SSAT1                 Killeen - direct
        1    A.  Those dates are all on the 10th of January, 2001.  And the
        2    calls are recorded at 18:13 hours, 20:38 hours and 23:18 hours.
        3    They are all obviously British time.
        4    Q.  In England when you write the date, typically in the United
        5    States you write the month first or the number for the month
        6    first, the date, and then the year.  Is that the way it's done
        7    in England?
        8    A.  No, we always record the date, then month, and then year.
        9             THE COURT:  You said the date --
       10             THE WITNESS:  The date of the month, sir.
       11    Q.  Detective Constable Killeen, let me just ask you to turn to
       12    the very last page of this exhibit and I will put it before
       13    you.
       14             Again, do you see the name Yasser al-Sirri at that
       15    Edinburgh House address?
       16    A.  Yes, sir.
       17    Q.  By the way, on the top right-hand portion of each of the
       18    pages that are the bill from the company, there is an
       19    indication page, for example, as I am pointing, page 1 to 6, is
       20    that correct?
       21    A.  That is correct, sir.
       22    Q.  As you look through the exhibit, is there apparently a page
       23    missing?
       24    A.  Yes, I believe page 2 is missing.
       25    Q.  Did you seize page 2 of 6 of this particular phone bill?
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             477SSAT1                 Killeen - direct
        1    A.  No, sir.  It was missing when I found the other pages.
        2    Q.  So this exhibit contains all of the pages from this
        3    particular seizure?
        4    A.  That is correct, sir.
        5    Q.  Finally, let me ask you to turn to the document which has
        6    been marked for identification as Government Exhibit 2706.
        7    Again, do you recognize that exhibit?
        8    A.  I do, sir, yes.
        9    Q.  Is this another document that you seized during your search
       10    of 99A Bell Street?
       11    A.  It is, sir, yes.
       12             MR. DEMBER:  Your Honor, the government offers Exhibit
       13    2706 into evidence.
       14             THE COURT:  All right.  No objection, Government
       15    Exhibit 2706 received in evidence.
       16             (Government's Exhibit  2706 received in evidence)
       17    Q.  Detective Constable, what is the exhibit itself?
       18    A.  It's a paying-in slip for a bank, Barclays Bank, which is
       19    one of the major banks in Britain.
       20    Q.  When you say it's a paying-in slip, is that something that
       21    we call a deposit slip here?
       22    A.  That is correct.
       23    Q.  When you deposit cash or a check into an account?
       24    A.  That is correct.
       25    Q.  Where did you find this particular item?
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             477SSAT1                 Killeen - direct
        1    A.  It was in the middle drawer.  I noted it as drawer B in the
        2    desk at the front of the shop.
        3    Q.  Let me turn to the second page of this exhibit.
        4             Does there appear to be a name on this deposit slip?
        5    A.  Yes.
        6    Q.  An individual?
        7    A.  Yes, just here.
        8    Q.  What is that name?
        9    A.  Mr. Y al-Sirri.
       10             MR. DEMBER:  Your Honor, may I approach the witness
       11    again?
       12             THE COURT:  Yes.
       13    Q.  Detective Constable, I have just handed you up a book that
       14    has been marked for identification only as Government Exhibit
       15    2700.  Without removing it from that envelope, would you look
       16    at the interior and look at the book itself?
       17    A.  Yes, sir.
       18    Q.  Do you recognize that book?
       19    A.  Yes, sir, I do, sir.
       20    Q.  And did you see any copies of that particular book during
       21    the course of your search at 99A Bell Street?
       22    A.  Yes, sir, there was a large number of that type of book or
       23    that book in the shop.
       24    Q.  And where did you see the copies of the book that you just
       25    saw in the envelope?
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             477SSAT1                 Killeen - direct
        1    A.  There was a large number of them on display immediately in
        2    front of the desk at the front of the shop.
        3    Q.  Let me just, if I may, put back onto the screen the diagram
        4    which is Exhibit 2702.  Why don't you point out where you
        5    searched some of these books?
        6    A.  These large number of books immediately in front of the
        7    desk area at the front of the shop.
        8    Q.  Did you see any of those books anywhere else?
        9    A.  Yes, there was a large quantity of packages in white
       10    plastic here and here.
       11    Q.  Did you open up any of those packages?
       12    A.  I did, sir, yes.
       13    Q.  What did you see when you opened those packages?
       14    A.  I saw copies of that book.
       15    Q.  Did you open up all the packages?
       16    A.  No, just the one sample package.
       17    Q.  Did all the packages look similar?
       18    A.  They were all marked exactly the same, yes, sir.
       19    Q.  By the way, Detective Constable, how long did it take you
       20    to actually conduct the search of this book shop?
       21    A.  It was searched over the course of 3 days.
       22    Q.  And were you present inside these premises for 3 entire
       23    days?
       24    A.  No, sir.  At the end of each day searching I locked the
       25    doors, made it secure, and then they were held under guard of a
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             477SSAT1                 Killeen - direct
        1    police officer throughout the night until I took over
        2    possession of the premises again in the morning.
        3    Q.  And did the search warrant authorize you to be there for
        4    the number of days that you were there?
        5    A.  Yes, it did, sir.
        6             MR. DEMBER:  May I have a moment, your Honor?
        7             THE COURT:  Yes.
        8    Q.  Detective Constable Killeen, can you estimate for us
        9    approximately how many copies of that book, which is marked for
       10    identification as 2700, you saw in the shop during your search?
       11    A.  Yes, sir.  Towards the end of the search I calculated
       12    roughly the number of books by totaling the number of packages
       13    I saw at the end of the shop, because each pack contained 12
       14    books, and also estimated the number directly in front of the
       15    desk.
       16    Q.  And what was your estimated total?
       17    A.  1936.
       18    Q.  1936?
       19    A.  Yes, sir.
       20             MR. DEMBER:  Thank you.
       21             I have no further questions at this time, your Honor.
       22             THE COURT:  All right.
       23             MR. RUHNKE:  No cross, your Honor.
       24             THE COURT:  No further questions.
       25             The witness is excused.
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        1             You may step down.
        2             (Witness excused)
        3             THE COURT:  All right.
        4             MR. DEMBER:  Your Honor, we would now request to be
        5    permitted to read from the remaining exhibits that were
        6    introduced through the stipulation, which was Government
        7    Exhibit 213.
        8             Before we do that, your Honor, may I read the
        9    pertinent sections from the stipulation to remind the jury what
       10    those exhibits are?
       11             THE COURT:  Yes.
       12             MR. DEMBER:  Thank you.
       13             The parties hereby stipulate and agree that the audio
       14    and videotapes marked as Government Exhibits 202, 203, 207, 210
       15    and 211 are tapes containing either sermons and speeches
       16    delivered by Omar Abdel Rahman or intercepted telephone
       17    conversations between Abdel Rahman and other persons.  Each of
       18    these tapes was received in evidence at Abdel Rahman's trial in
       19    1995 and Lynne Stewart was present at the time each was
       20    received in evidence.
       21             Government Exhibits 202 and 203 were seized pursuant
       22    to a court-authorized search warrant at the residence of Nabil
       23    el-Masry.
       24             Government Exhibit 211 was obtained from an individual
       25    who testified at Abdel Rahman's 1995 trial.
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        1             Government Exhibits 207 through 210 were intercepted
        2    telephone conversations between Abdel Rahman and other persons
        3    obtained pursuant to a court-authorized wiretap.
        4             The transcripts marked as Government Exhibits 202T,
        5    203T, 207T, 210T and 211T are true and accurate translations
        6    from Arabic into English of the tapes marked as Government
        7    Exhibits 202, 203, 207, 210 and 211 respectively.
        8             Government Exhibits 202T, 203T, 207T, 210T and 211T
        9    were prepared by qualified expert Arabic-to-English translators
       10    employed by the Federal Bureau of Investigation.  Each of these
       11    transcripts was received in evidence at Abdel Rahman's trial in
       12    1995 and Lynne Stewart was present at the time each was
       13    received in evidence.
       14             All voice attributions on Government Exhibits 202T,
       15    203T, 207T, 210T, and 211T -- that is, all identifications on
       16    the transcripts of who is speaking at any particular time --
       17    truly and accurately identify the speakers on the corresponding
       18    tapes.
       19             After Government Exhibits 202T, 203T, 207T, 210T and
       20    211T were admitted into evidence during the Abdel Rahman's
       21    trial, they were read aloud to the jury in that case.
       22    Defendant Lynne Stewart was present during the reading of each
       23    of these transcripts.
       24             Your Honor, at this time Mr. Barkow is going to read,
       25    with your permission of course, Government Exhibit 202T.
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        1             THE COURT:  All right.
        2             MS. BAKER:  Your Honor, may we also display Government
        3    Exhibit 202T on the screen for the jury?
        4             THE COURT:  Yes.
        5             MR. BARKOW:  May I proceed, your Honor?
        6             THE COURT:  Yes.
        7             Before you do that, ladies and gentlemen, I just
        8    remind you that when you obviously hear -- and I have explained
        9    this to you before -- that something is displayed on the
       10    screen, what is being referred to are the screens in front of
       11    you and the big screen, and when a witness is on the stand the
       12    witness has the same screen as do the parties and counsel.
       13             We also have these additional screens which you have
       14    sometimes seen me using, which is the transcript which we are
       15    keeping, which the court reporter keeps, which is different
       16    from what appears on these screens.  The transcript is not
       17    shown to the jury.  It doesn't appear on your screens except as
       18    I have told you when I gave you the instructions that said you
       19    can take notes if you wish and gave you the instructions about
       20    notes.  We are keeping a transcript and if in the course of
       21    deliberations you wish to review the transcript you would have
       22    to write to ask to review the transcript.
       23             Okay.  You may proceed.
       24             MR. BARKOW:  Thank you, your Honor.
       25             (At this point, Government Exhibit 202T in evidence
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        1    was read to the jury by Mr. Barkow)
        2             (Continued on next page)
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                                      (212) 805-0300
        1               (In open court)
        2               (At this point, Government Exhibit 202T was read
        3               into the record by Mr. Barkow)
        4             MR. MORVILLO:  With the Court's permission, we're
        5    going to a long speech by Rahman.
        6             THE COURT:  We'll take our mid morning break, about 10
        7    minutes.  Ladies and gentlemen, please remember my continuing
        8    instructions not to talk about the case; keep an open mind.
        9    All rise, please.
       10             Will you follow Mr. Fletcher, please?
       11               (Jury exits the courtroom)
       12             THE COURT:  All right, I'll see you shortly.
       13               (Morning recess)
       14               (Continued on next page)
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                                      (212) 805-0300
        1               (In open court; jury not present)
        2             THE COURT:  Could I talk to the lawyers?
        3               (At the sidebar)
        4             THE COURT:  Two things:  First, Mr. Fletcher advises
        5    me that Juror 17 is having a health problem with her teeth.
        6    She had dental work and there may be other health issues, and
        7    so I really have to talk to the juror about that.  And I would
        8    be inclined to do it after the lunch hour in the same way that
        9    I've done it before, and any of the parties or lawyers are
       10    welcome to be there.  I'm told it's the juror who sits in seat
       11    Number 17.
       12             The second issue is, there's someone in the audience
       13    with a t-shirt and has a sign on the rear of her jeans that
       14    says, "Say no to war".  I look at the t-shirt, and if I were
       15    the jury, I can't read anything on the t-shirt, I have no idea
       16    what the t-shirt says.  The individual is setting several rows
       17    back on the right-hand side as I face the gallery.  Unless the
       18    parties feel that I should do something, my inclination is not
       19    to do anything.  I can't see that it's something that would
       20    affect the jury in any way.  And I frankly can't read anything
       21    that's on the t-shirt from where I sit.
       22             But to the parties have any other feelings?
       23             MR. PAUL:  I don't think that it's necessary to do
       24    anything, Judge.
       25             THE COURT:  Okay, fine.
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        1             MR. TIGAR:  Thank you.
        2               (In open court; jury not present)
        3             THE COURT:  All right.  The jury will now enter the
        4    courtroom.  Please be seated.
        5               (Continued on next page)
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                                      (212) 805-0300
        1               (In open court; jury present)
        2             THE COURT:  Please be seated, all.
        3             MR. MORVILLO:  At this time, the government would
        4    request to read Government Exhibit 211T.
        5             THE COURT:  All right.
        6             MR. MORVILLO:  Government Exhibit 211T, which was
        7    Government Exhibit 801-D in the underlying case.
        8               (At this point, Government Exhibit 211T was read
        9               into the record by Mr. Morvillo)
       10             THE COURT:  All right.  Ladies and gentlemen, it's
       11    just about time for lunch, so we'll break for lunch until 2:00
       12    o'clock.  Please remember my continuing instruction:  Not to
       13    talk about the case; keep an open mind.
       14             All rise, please.  Please follow Mr. Fletcher to the
       15    jury room.
       16               (Jury exits the courtroom)
       17             THE COURT:  Please be back at quarter of 2:00.  Have a
       18    good lunch.
       19               (Luncheon recess)
       20               (Continued on next page, which commences sealed
       21    excerpt, Pages 3255 - 3260)
       22                                 o 0 o
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        1               (In the robing room)
        2               (Counsel present:  Ms. Shellow-Lavine and Ms. Baker)
        3             THE COURT:  You had mentioned, Ms. Baker, something
        4    about scheduling?
        5             MS. BAKER:  I need to make an application to the
        6    Court, and I do this reluctantly, and having tried everything
        7    we could to avoid it because I'm mindful of the time of the
        8    jurors and of the Court and of all counsel and the defendants
        9    themselves, but unfortunately, due to the confluence of a
       10    number of logistical factors, the primary one of which is what
       11    I told the Court yesterday or the day before about the one
       12    essential government witness being on his honeymoon until this
       13    weekend.
       14             The government needs to request an adjournment of a
       15    day or part of a day for tomorrow.  We simply cannot get
       16    together enough witnesses and evidence to present to the jury
       17    that could fill more than the morning tomorrow, and probably
       18    not even the entire morning.  We are prepared to present when
       19    we can tomorrow morning, if your Honor wished to bring the jury
       20    in for that portion of a day.  But, as I say, we don't have
       21    more than the morning and perhaps less.  So I need to make the
       22    application that we adjourn until Monday.
       23             I make it now -- I'm happy to repeat it in the
       24    courtroom if your Honor wishes -- but I make it now simply to
       25    say, in light of the concerns just raised by this juror,
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        1    perhaps if you were to afford the juror access to a telephone
        2    now, she might be able to reach her doctor or her dentist and
        3    see if she could be seen by either or both of them tomorrow and
        4    then both concerns could be addressed perhaps at the same time.
        5             THE COURT:  I don't understand.  I thought that what
        6    remains of the evidence from the stipulation, together with the
        7    undisputed evidence from the Sattar search, which was about --
        8    and the documents that I already ruled on, would have taken you
        9    well into tomorrow.
       10             MS. BAKER:  We anticipated that they would when we did
       11    our calculations yesterday.  Basically, every time we leave the
       12    courtroom we reassess and recalculate.  And having seen the
       13    amount of time taken this morning by the reading of the two
       14    speeches And assessing the remaining documents in the 200
       15    exhibit series from the Abdel Rahman trial and the Sattar
       16    search exhibits that have been admitted so far, and the couple
       17    of witnesses who are available to us, and the anticipated
       18    duration of their testimony, we have unfortunately come to the
       19    conclusion that I stated a minute ago, which is that we might
       20    fill tomorrow morning, but we might not.  And we wouldn't be
       21    able to fill beyond tomorrow morning.  Which is the reason why
       22    I reluctantly make this application to the Court.
       23             THE COURT:  Well, Ms. Shellow-Lavine can discuss this
       24    with defense counsel.  I could give a lecture -- I gave part of
       25    it yesterday.  If I had known, I certainly would have, but
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        1    there are only about eight remaining documents that I haven't
        2    gotten to.
        3             MS. BAKER:  I realize that, your Honor, which is why
        4    we didn't think that pressing your Honor further to rule would
        5    materially change the situation.
        6             THE COURT:  It's remarkable.  Lectures don't do very
        7    much good.
        8             So my inclination would be to -- not to just give up
        9    half a day, but to bring the jury in for tomorrow morning to
       10    exhaust whatever there is, and not for tomorrow afternoon, and
       11    to tell the -- bring the juror back in at the break and say, In
       12    all likelihood, we'll not sit tomorrow afternoon; if the juror
       13    would like to check with her doctor whether she can be seen by
       14    any of the doctors tomorrow afternoon, she could do that.
       15             MS. SHELLOW-LAVINE:  Your Honor, I was just looking at
       16    my watch.  In order to accommodate her, you may want to bring
       17    her in now, If, in fact, that's what -- how these events are
       18    going to turn out, given my guess is that if we wait until the
       19    afternoon break, she may have problems scheduling.
       20             THE COURT:  If you could go out and talk to the other
       21    defense counsel and find out if that's acceptable.
       22             MS. SHELLOW-LAVINE:  Why don't I do that?  If you will
       23    excuse me, I will be right back.
       24               (Off the record)
       25             MS. SHELLOW-LAVINE:  I have spoken with my colleagues
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        1    and we have no objection.  We will take the afternoon and put
        2    it to some other productive use.
        3             THE COURT:  All right.  Why don't we bring in Juror
        4    323.
        5               (Continued on next page, which commences sealed
        6    excerpt, Pages 3265 - 3266)
        7                                 o 0 o
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        1               (In open court; jury not present)
        2             THE COURT:  Can I talk to the lawyers just briefly?
        3               (At the sidebar)
        4             THE COURT:  I came out because the juror is using the
        5    phone in the robing room.  So I was just going to inform you of
        6    that.  We still have to wait for the juror to be finished with
        7    the phone.
        8             MS. BAKER:  Your Honor, while we're all standing here,
        9    if I might ask if I could be excused for this afternoon so I
       10    can address some matters outside of the courtroom?
       11             MR. PAUL:  Mr. Fallick has asked to be relieved from
       12    appearing as well, so we can proceed in his absence.
       13             THE COURT:  Fine.  That will be fine.
       14               (Off the record)
       15             THE COURT:  I've said the juror has to make a phone
       16    call, and the regulations are such that one marshal has to be
       17    in the robing room, and I just asked the marshal to make sure
       18    that was okay with the juror.
       19               (Off the record)
       20             THE COURT:  The jurors are ready to come back.  The
       21    juror made the phone call, and I'll tell the jurors at the end
       22    of the day we won't be sitting tomorrow afternoon.  If there's
       23    any better fix on the time, if you could give it to me at the
       24    break.
       25             MR. TIGAR:  Your Honor, I understand there will be
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        1    more reading this afternoon.  Will those be matters as to which
        2    a limiting instruction is appropriate?
        3             MR. BARKOW:  Your Honor, the plan is to read some of
        4    the Sattar search exhibits that are admitted, two of which, I
        5    believe -- if we get there -- two of which are offered with
        6    respect to Mr. Sattar and Ms. Stewart.  And the rest are
        7    offered only with respect to Mr. Sattar.
        8             Specifically, the two that are offered with respect to
        9    both Mr. Sattar and Ms. Stewart are 2036, which has been
       10    admitted into evidence, and then -- actually, I guess there's
       11    three:  2009, 2009A.  And those are offered with respect to
       12    both.
       13             Then there are others that are offered only with
       14    respect to Mr. Sattar.  In nonnumerical order:  2045, 2050A
       15    through L; 2069; 2056; 2032.
       16             Two stipulations, which are 2047S and 2049S.
       17             2000; 2053; 2058.  2035, and that has been replaced,
       18    it's now 2035X and 2035S.  There's an excerpt and a stipulation
       19    with respect to that which is a replacement of the original.
       20    That has not yet been offered into evidence, but the parties
       21    reached an agreement with respect to that, so we're going to
       22    offer it and ask to publish it.
       23             2061; 2062; 2063.  I think I already said 2009 and
       24    2009A.  2081.
       25             THE COURT:  2009 and 2009A are offered against
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        1    Mr. Sattar and Ms. Stewart?
        2             MR. BARKOW:  Right.  2081, which is just against
        3    Mr. Sattar.  Back now to just Mr. Sattar.  2072; 2042, which
        4    the Court ruled yesterday would be admissible but is not yet
        5    admitted into evidence.  2044.  Same situation with that:  The
        6    Court ruled it would be admissible; it has not yet been
        7    offered.
        8             And then there's the 2046A through E set of exhibits.
        9    Some of those are already admitted, have been read, actually,
       10    or will be read, as they are speeches Abdel Rahman, 2046A, B
       11    and D, we're not planning on doing anything with those at this
       12    point other than offering them into evidence.
       13             2046 C and E are speeches offered only against
       14    Mr. Sattar.  The Court indicated yesterday they would be
       15    admissible, but still have yet to actually be offered.
       16             The reason I read them in that order your Honor is
       17    that's the order of presentation, and I apologize, it's not in
       18    numerical order, but that's the order which we anticipate
       19    presenting them.  And so that's why it's not numerical.
       20             MR. TIGAR:  Your Honor, there's also the question of a
       21    limiting instruction with respect to "offered for the truth",
       22    "not offered for the truth".  Some of these are newspaper
       23    articles, and as to those, the Court has been in the habit of
       24    giving a special newspaper article/media cautionary
       25    instruction.  And we would request as to each exhibit the same
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        1    type of instruction that the Court has been in the habit of
        2    giving with respect to something in that category.  There are
        3    no new categories here.
        4             MR. BARKOW:  That's correct, your Honor.  They're not
        5    all newspaper articles, as the Court is aware.  All are offered
        6    to show knowledge, intent, state of mind.  And then two are
        7    also offered as background and context.  And that is, 2050A
        8    through L, photographs.  And also 2072, which are time sheets
        9    from Mr. Sattar's work at the Abdel Rahman trial.
       10             The rest are offered to show knowledge and state of
       11    mind.  And some of those are newspaper articles, not all of
       12    them.
       13             Just so the Court is aware, the newspaper articles are
       14    actually grouped together, so that's one of the reasons for the
       15    order of presentation, with the exception of 2044, which I have
       16    listed at the end.  That was in part because that hadn't been
       17    admitted until yesterday.  But I can move that so they're all
       18    grouped together.  There was a block of newspaper articles
       19    together, and then different kinds of evidence.  So if the
       20    Court wanted to just give the instruction once, we could do all
       21    the newspaper articles at the same time rather than having to
       22    repeat it.
       23             THE COURT:  All right.  The three exhibits that are
       24    being offered against Mr. Sattar and Miss Stewart, are there
       25    any other limiting instructions other than they are being
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        1    offered only against Mr. Sattar and Miss Stewart and not to be
        2    considered against Mr. Yousry?
        3             MR. TIGAR:  If recollection serves, your Honor, those
        4    are the faxes?
        5             MR. BARKOW:  One is a fax.  2036 is a fax of a
        6    newspaper article from Miss Stewart to Mr. Sattar.  2009 and
        7    2009A are transcripts -- portions of transcripts from the Abdel
        8    Rahman trial.
        9             MR. TIGAR:  The fax, if memory serves, attaches a
       10    newspaper article.
       11             MR. BARKOW:  The fax has at the top a header which
       12    indicates where it was sent from, and then it is of a newspaper
       13    article.
       14             MR. TIGAR:  The newspaper article is obviously not
       15    being offered for the truth.  This is just being offered to
       16    show that the communication was sent.
       17             MR. BARKOW:  None of the exhibits that I have listed
       18    are being offered today for the truth.  There are the two that
       19    are being offered for background and context.  And all are
       20    being offered to show state of mind.  None of these are being
       21    offered for the truth.
       22             THE COURT:  So 2036, 2009, 2009A are being offered
       23    only against Mr. Sattar and Miss Stewart and only to be
       24    considered against them and not Mr. Yousry, and they are being
       25    offered solely with respect to knowledge, intent, state of mind
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        1    of Mr. Sattar and Miss Stewart.  And to the extent that there's
        2    a newspaper article, we will apply the instruction on newspaper
        3    articles.
        4             MR. TIGAR:  Yes, your Honor.
        5             THE COURT:  Okay?
        6             MR. BARKOW:  Does the Court have a preference, your
        7    Honor, with respect to Exhibit 2044 which I had listed last,
        8    but I mentioned I could do in a group?  I don't know if the
        9    Court was going to give the instruction at the outset or --
       10             THE COURT:  Whenever you reach newspaper articles,
       11    I'll give the substance of the instruction that Mr. Tigar
       12    referenced, the instruction which I've given before, but right
       13    now we're going to continue with the finishing the exhibits
       14    from the Abdel Rahman trial, right?
       15             MR. DEMBER:  That is correct, your Honor.  There's one
       16    more speech with questions and answers and with a
       17    question-and-answer session; and then two FISA calls.  And then
       18    we'll be done with the exhibits that were introduced under 213.
       19             MR. RUHNKE:  Your Honor, when it does come time to
       20    offer the exhibits that Mr. Barkow was talking about, I would
       21    like a statement -- like it stated by the Court something more
       22    than not being against Mr. Yousry, a statement that it should
       23    not be considered as evidence against Mr. Yousry for any
       24    reason.
       25             THE COURT:  Okay.
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        1             MR. RUHNKE:  Thank you.
        2             MR. BARKOW:  Your Honor, that, in a sense, touches a
        3    little bit on the issue raised by my letter of last night with
        4    respect to Count 2 being a predicate for, for example, Counts 4
        5    and 5.  If evidence is offered against Sattar to show his
        6    knowledge and state of mind, it obviously can be considered for
        7    Count 2, and since we need to prove Count 2 as a predicate for
        8    Counts 4 and 5, it's our view that the requested instruction
        9    overstates somewhat the proper use of the evidence, and
       10    instead, could be explained in more detail as I've just said
       11    it.
       12             Essentially, that it can be considered with respect to
       13    Mr. Sattar, and to the extent that Count 2 is a predicate --
       14    and this can be explained, however -- but to the extent that
       15    Count 2 is a predicate for Counts 4 and 5, it might be usable
       16    against other defendants.
       17             And it doesn't necessarily have to be stated that way,
       18    but I think Mr. Ruhnke's proposal overstates somewhat the
       19    limited use of the evidence because, in a way, consideration of
       20    the evidence with respect to Mr. Sattar and his state of mind
       21    does bear on consideration of Counts 4 and 5 with Count 2 as a
       22    predicate.
       23               (Continued on next page)
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        1             MR. RUHNKE:  Your Honor, the government just told you
        2    they are not offering it against Mr. Yousry and if they are not
        3    offering it against Mr. Yousry, they are not offering it
        4    against Mr. Yousry.  This idea that because they have to prove
        5    the Count 2 conspiracy doesn't mean that evidence is offered on
        6    the Count 2 conspiracy is admissible against Mr. Yousry.  They
        7    have to establish it as if, as your Honor pointed out in your
        8    order, the government quotes, even if it were a separate trial
        9    they would have to prove the Count 2 conspiracy, but it doesn't
       10    mean that evidence is admissible against Mr. Yousry because he
       11    is not named in Count 2.  So I am not sure if the government is
       12    trying to have it two ways or three ways but they stand up and
       13    say it's not offered against Mr. Yousry and I understand that
       14    to mean simply it's not offered against Mr. Yousry.
       15             THE COURT:  Why isn't it an acceptable instruction at
       16    least as I listened to the parties that the evidence is
       17    offered -- the first three pieces of evidence are being offered
       18    only against Mr. Sattar and Ms. Stewart and not against
       19    Mr. Yousry?  And the remaining ones offered are offered only
       20    with respect to knowledge, intent and state of mind of
       21    Mr. Sattar and Ms. Stewart with any newspaper article
       22    instruction, and that the remaining exhibits, putting aside
       23    background and context, that the remaining exhibits are being
       24    offered only against Mr. Sattar and not against Ms. Stewart or
       25    Mr. Yousry and only with respect to knowledge, intent and state
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        1    of mind of Mr. Sattar.
        2             MR. RUHNKE:  I don't know if the government has a
        3    problem with it.  My view is that if it's offered for
        4    background and context --
        5             THE COURT:  There were only two exhibits that were
        6    background and context, and it's still only offered against
        7    Mr. Sattar, 2050 and 2072, and those are still, at least as I
        8    understand, offered only against Mr. Sattar and not against Ms.
        9    Stewart and Mr. Yousry.
       10             MR. RUHNKE:  With that understanding I don't object to
       11    the court's instruction.
       12             MR. BARKOW:  That is acceptable to the government as
       13    well.
       14             I think I may have misheard but there were three
       15    exhibits offered against Mr. Sattar and Ms. Stewart and the
       16    remainder are offered against Mr. Sattar only.  I may have
       17    misheard the court.
       18             THE COURT:  That is what I got.
       19             MR. BARKOW:  Okay.
       20             THE COURT:  And the two exhibits for background and
       21    context are still offered only against Mr. Sattar and not
       22    against Ms. Stewart or Mr. Yousry and I thought that they were
       23    being offered both with respect to background and context as
       24    well as knowledge, intent and state of mind.
       25             MR. BARKOW:  That is correct, your Honor.
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        1             THE COURT:  Of Mr. Sattar.
        2             MR. BARKOW:  That is correct, your Honor.
        3             THE COURT:  Okay.
        4             You can bring in the jury now.
        5             Whatever happened to the chart that you were doing or
        6    the --
        7             MR. RUHNKE:  We are still discussing that among
        8    ourselves, your Honor.  And I think this instruction is a
        9    perfect example of why something like that is necessary.
       10             (In open court; jury present)
       11             THE COURT:  Please be seated all.
       12             Good afternoon, ladies and gentlemen.  I appreciate
       13    your indulgence.  There were various matters that we had to
       14    take care of and so, again, I appreciate your indulgence.
       15             All right, Mr. Dember.
       16             MR. DEMBER:  Your Honor, with your permission we would
       17    like to now read Exhibit 203T.  It is part of a speech, and
       18    then a question and answer session.
       19             I will read the part of Omar Abdel Rahman and, with
       20    your permission, Mr. Morvillo will read the other parts.
       21             May he take the witness stand to do the reading and I
       22    will stand at the podium?
       23             THE COURT:  Yes.
       24             MR. MORVILLO:  Your Honor, can we display it to the
       25    jury?
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        1             THE COURT:  Yes.
        2             (At this point, Government Exhibit 203T in evidence
        3    was read to the jury by Mr. Dember and Mr. Morvillo)
        4             MR. DEMBER:  Your Honor, with your permission Mr.
        5    Morvillo and I will read Government Exhibit 207T.
        6             May we also display it for the jury?
        7             THE COURT:  All right.
        8             MR. DEMBER:  It is a telephone call dated May 25, 1993
        9    between Omar Abdel Rahman and there are two other persons.
       10             MR. DEMBER:  Your Honor, I will read the part of Omar
       11    Abdel Rahman and Mr. Morvillo will read the other parts.
       12             THE COURT:  All right.
       13             (At this point, Government Exhibit 207T in evidence
       14    was read to the jury by Mr. Dember and Mr. Morvillo)
       15             (Continued on next page)
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        1               (Government Exhibit 207T in evidence read by Messrs.
        2    Dember and Morvillo [cont.])
        3             THE COURT:  Ladies and gentlemen, we'll just take five
        4    minutes.  Normally we break at 4:30, but we got a late start
        5    this afternoon.
        6               (Afternoon recess)
        7               (In open court; jury not present)
        8             THE COURT:  Please be seated, all.  The one juror
        9    expressed concern to Mr. Fletcher that we were going to be
       10    breaking early tomorrow because of her, and Mr. Fletcher
       11    assured her no, that it was just a scheduling issue.
       12             All right, let's bring in the jury.
       13             I'll tell the jury at the end of the day that we'll
       14    sit tomorrow only until the lunch hour Because of scheduling
       15    issues.
       16               (Jury entering courtroom)
       17               (In open court)
       18             THE COURT:  Please be seated, all.  Mr. Dember?
       19             MR. DEMBER:  Your Honor, with your permission I'd like
       20    to read the final exhibit introduced on stipulation, which was
       21    Government Exhibit 213.  The exhibit is Exhibit 210.  It's a
       22    telephone conversation on May 27th, 1993 between Omar Abdel
       23    Rahman and two other individuals.  I will read the part of Omar
       24    Abdel Rahman and Mr. Morvillo will read the other two parts.
       25    May we display the transcript for the jury, please?
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        1             THE COURT:  Yes.
        2             (At this point, Government Exhibit 210T was read into
        3    the record by Messrs. Dember and Morvillo)
        4             THE COURT:  Ladies and gentlemen, that takes us to
        5    about 4:27, and so we'll break for the day.  Tomorrow, because
        6    of scheduling, we'll only be sitting tomorrow morning until
        7    lunch hour when we will break.  So I won't bring you back
        8    tomorrow afternoon, and we don't sit on Friday.  I wanted to
        9    let you know that now in case there were -- there was any
       10    appointment or anything you wanted to make for tomorrow
       11    afternoon and you could do that.
       12             Please remember to follow my continuing instructions:
       13    Please don't look at or listen to anything to do with the case.
       14    If you should see something or hear something, just turn away.
       15    Please remember to not talk to anyone about the case or
       16    anything to do with it.  Always remember to keep an open mind
       17    until you've heard all of the evidence, I've instructed you on
       18    the law, and you've gone to the jury room to begin your
       19    deliberations.
       20             Have a very good evening.  I look forward to seeing
       21    you tomorrow.
       22             All rise, please.
       23               (Jury exits the courtroom)
       24               (Continued on next page)
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        1               (In open court; jury not present)
        2             THE COURT:  All right.  Please be seated, all.
        3             Okay.  I received the government's July 6th letter,
        4    and I said I would -- if the defendants wanted to address that
        5    letter orally with respect to those three documents, that's
        6    fine.  If they want to put something in writing, that's fine,
        7    too.  And Mr. Ruhnke said he wanted to at least address it
        8    orally.
        9             MR. RUHNKE:  Yes, your Honor.  Your Honor, the
       10    government's letter of July 6th talks actually about three
       11    separate documents, as I understand it:  The government
       12    contends that they're admissible against all defendants.
       13    Nevertheless, the government contends that the evidence is only
       14    relevant to Count 2.  And as we all obviously understand,
       15    neither Mr. Yousry nor Ms. Stewart is named as a defendant in
       16    Count 2.
       17             The three documents -- one is a speech of Omar Abdel
       18    Rahman, And perhaps the government can help me out with a date,
       19    an approximate date of that speech, and the sermon.  2040 is
       20    the speech, 2057 is the will, And 2070 is the sermon of
       21    Dr. Rahman or Sheikh Rahman.  I raise that because we just had
       22    documents received into evidence last month -- for example,
       23    there was a phone call that took place in 1993.  You know, long
       24    before any of the conspiracies charged in this indictment
       25    coming into existence.  And the further we get away from the
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        1    dates of the actual conspiracies here, the less penultimate the
        2    proof is, I contend.
        3             So perhaps the government could help us out and tell
        4    us what the dates are on these documents -- I don't have that
        5    at my fingertips -- as a predicate to the continuing argument.
        6             MR. BARKOW:  Your Honor, with respect to 2070 and
        7    2057, I think I've stated before in our letters the range
        8    within which we think we can place 2057 and 2070, which is
        9    sometime between 1996, January of 1996, and 1998 -- the month
       10    of 1998 escapes me -- December, 1998, For 2057 and 2070.
       11             For 2040, we are not able to date that speech.
       12             MR. RUHNKE:  That helps.  I thank counsel for that.
       13             However, the government's letter of July 6th, from our
       14    perspective, continues to reflect a confusion about what
       15    purposes these were being admitted for.  And if they are
       16    admissible as to Count 2 on some theory, they cannot be
       17    admissible as to Ms. Stewart or to Mr. Yousry because they're
       18    not named in Count 2.
       19             I understand the argument as made by the government
       20    that it is necessary to establish the Count 2 of the conspiracy
       21    or for the jury to find the existence of Count 2, the
       22    conspiracy of Counts 4 and 5 are to be established, but that
       23    does not mean that evidence that's admissible only on the
       24    Count 2 conspiracy is somehow admissible against the defendants
       25    not named in Count 2.
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        1             The letter also says that the evidence is offered
        2    pursuant to 801(d)(2)(E) to prove the truth of the matters
        3    asserted.  Well, even if that is so and if they're offered on
        4    the Count 2 conspiracy, that does not make them admissible as
        5    to defendants not named in Count 2.
        6             When the government explains by Footnote 2 as to what
        7    it means when it says the exhibit is offered as to Counts
        8    2/4/5, it means that the evidence is offered as direct evidence
        9    of Count 2, and as background and context to Counts 4 and 5.
       10    And again, I have personally some difficulty following the
       11    reasoning of that because it seems to come back to the point
       12    that we have to establish the Count 2 conspiracy in order to
       13    make our case of 4 and 5, but that doesn't mean that the
       14    evidence is admissible against the defendants not named in
       15    Count 2 of the indictment.
       16             So that as I view it, this evidence, if it's going to
       17    be admissible, is only admissible as to Mr. Sattar, and as
       18    direct evidence, as I surmise from the government's letter, of
       19    the charges alleged in Count 2, for example, which goes on the
       20    intent of Abdel Rahman, who although he is not a defendant in
       21    Count 2, is named explicitly as an unindicted coconspirator in
       22    Count 2, But still should not be admissible as to Defendants
       23    Yousry and Stewart.
       24             On the issue of coconspirator, hearsay, and adopting
       25    prior statements or acts of coconspirators for joining a
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        1    conspiracy later on that's ongoing and existing -- which may or
        2    may not be part of the government's offer here, it's hard to
        3    tell -- the government has cited the Baddalamanti case, the
        4    1986 Baddalamanti case, and in that case, what the Second
        5    Circuit says is that when one joins a new conspiracy that's
        6    been ongoing -- and it cites Judge Weinstein's and Berger's
        7    Treatise on Evidence -- I'm looking at Baddalamanti, Page 828,
        8    794 F.2d at Page 828.  The quotation from the Weinstein and
        9    Berger treatise is, and I'll just read it, from the Second
       10    Circuit, quote:
       11             "It is reasonable to expect that a 'new recruit can be
       12    thought to have joined when an implied adoption of what had
       13    gone on before to enhance the enterprise of which he is taking
       14    advantage' where, as here, there is 'sound reason to believe
       15    that he joined, when he was generally aware of what his new
       16    partners had been doing and saying on behalf of the
       17    enterprise.'"
       18             So that there is in Baddalamanti the idea that in
       19    order to have past statements and actions of coconspirators
       20    attributable to the 'new recruit', which is I suppose the
       21    argument made regarding Mr. Yousry and Ms. Stewart, there has
       22    to be some further foundation that the defendant was aware of
       23    what was going on And what was being said by this conspiracy
       24    that he is now starting to become a member of.  And at least as
       25    to Mr. Yousry, whom I can only speak for, I don't see that
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        1    foundation either.
        2             So in reading the government's arguments in the letter
        3    of July 6th, it appears that the evidence, if it is admissible
        4    at all, is not admissible as to all defendants but only as to
        5    Mr. Sattar, and therefore should have an in limine instruction
        6    excluding Mr. Yousry and Ms. Stewart from all three -- from any
        7    liability for all three.
        8             When the government says it's not offered for the
        9    truth of the matter but as a verbal act, that may well be the
       10    case, but that still does not mean it's admissible against
       11    people who are not involved in Count 2.  And I do not see it as
       12    background information for Counts 4 and 5, either.  So I don't
       13    see even, either, as subject to that kind of limiting
       14    instruction, either, as to other defendants other than those
       15    involved directly in Count 2, which in terms of people being
       16    here, is only Mr. Sattar.  Mr. Sattar is the only one named
       17    currently in Count 2.
       18               (Continued on next page)
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        1             MR. RUHNKE:  So my view or argument, respectfully, is
        2    that this evidence is not admissible against anyone except
        3    Mr. Sattar and if there are limiting instructions that go along
        4    with that, it's to Mr. Sattar's counsel to address the
        5    appropriate limiting instructions.
        6             MR. TIGAR:  I would add the following, your Honor:
        7    The Count 4 conspiracy and the Count 5 substantive offense
        8    depend on two operative words -- provide and conceal.  Nothing
        9    in any of these three exhibits is relevant to providing or
       10    concealing.  The theory of Count 4 is that the defendants
       11    provided Abdel Rahman to a conspiracy and that they concealed
       12    the fact they were doing so.  These are statements of his which
       13    so far as the evidence shows were not provided by either of
       14    these defendants nor were they concealed or the fact of their
       15    providing concealed by either of these defendants.  They are
       16    simply statements.
       17             Moreover, and this repeats a little bit what I said,
       18    they are statements uttered at a relatively uncertain time and
       19    under circumstances which so far as these defendants were
       20    concerned did not raise the possibility of imminent lawless
       21    action or were not uttered in a context that bespoke imminent
       22    lawless action.  That is to say, as I tried to argue the other
       23    day, the First Amendment with respect to the clear and present
       24    danger test is always contextual.  And as to these defendants
       25    these statements lack that context.  I won't repeat the
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        1    argument which is a Spock-Noto argument.  It seems to me it's
        2    sufficient to say that there simply is no relevance as to the
        3    crimes that are charged in Counts 4 and 5.
        4             THE COURT:  All right.
        5             Mr. Barkow.
        6             MR. BARKOW:  Yes, your Honor.
        7             I think that our position is set forth finally in our
        8    July 6 letter and the theory is that the statements are
        9    admissible to prove Count 2 and that in separate trials of
       10    Mr. Yousry or Ms. Stewart they would be admissible against them
       11    because we would need to prove the existence of Count 2 so as
       12    to prove the existence of the conspiracy that they are alleged
       13    to have provided material support to.
       14             So they are admissible directly to prove Count 2 for
       15    Exhibit 2040 under the co-conspirator statements rule.  The
       16    portions of 2040 include things that we offer for the truth,
       17    for example, we are terrorists, we assassinate, we are
       18    assassins in substance, those types of statements.  Other
       19    portions of that statement 2040 are nonhearsay acts not offered
       20    for the truth; for example, threats in that statement, don't be
       21    hesitant in pursuing your enemies, things like that, they feel
       22    pain like you do.  And then that is with respect to 2040 and at
       23    this point with respect to the other two exhibits we are not
       24    offering them for the truth.  We are not offering them under
       25    the co-conspirator statements rule, 801(d)(2)(e), but we are
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        1    offering them with respect to Mr. Yousry and Ms. Stewart
        2    because we must prove the existence of Count 2 and similarly to
        3    my argument earlier today with respect to some of the Sattar
        4    search evidence and similar to the court's ruling with respect
        5    to the 1998 fatwah --
        6             THE COURT:  Well, you know, I take what people say
        7    very seriously and the government said that the 1998 fatwah was
        8    not being offered against Ms. Stewart or Mr. Yousry and I will
        9    give that instruction to the jury because it's the instruction
       10    that the government said in its papers to me.  Now, I explain
       11    something further in my opinion about what a separate trial of
       12    Ms. Stewart would be.  Yes, so be it.  But when the government
       13    tells me this is the limiting instruction, that is the limiting
       14    instruction that I will give.  That also raises for me though
       15    the question why is it, by the way, that originally on the list
       16    2057 and 2070 was being offered only against Mr. Sattar, not
       17    against all defendants?
       18             MR. BARKOW:  Which list is that, your Honor?
       19             THE COURT:  The list that I was reading yesterday,
       20    which was the list that came with the June 28 letter.  It was
       21    attachment A.  Each exhibit that was in dispute.  So the list
       22    that I was working from yesterday was attachment A to the
       23    government's June 28th letter and the attachment to Ms.
       24    Shellow-Lavine's June 29th letter which gave Ms. Stewart's
       25    response.
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        1             MR. BARKOW:  Your Honor, I am looking at my Exhibit A
        2    to that letter.
        3             THE COURT:  Yes.  Am I wrong?
        4             MR. BARKOW:  It says --
        5             THE COURT:  No, you are right.  I am wrong.
        6             You are right.
        7             MR. BARKOW:  And with respect to the fatwah --
        8             THE COURT:  Hold on.
        9             You are right.  You are right.
       10             You were going to say with respect to the fatwah.
       11             MR. BARKOW:  Yes, your Honor, we are not at all
       12    seeking to revisit or step back about what we were saying from
       13    the Bin Laden fatwah.  We are only relying on the method of
       14    analysis with respect to that.  We had initially proposed the
       15    limiting instruction because we perceived, and I think the
       16    court and the parties did as well, with respect to Bin Laden
       17    there might be a particularly acute danger of unfair prejudice
       18    and so we think perhaps an even more powerful limiting
       19    instruction is appropriate with respect to that.
       20             THE COURT:  Let me return -- thank you for correcting
       21    me, if you intended to correct me.
       22             Two comments on 801(d)(2)(e).
       23             How would 801(d)(2)(e) be admissible for the truth
       24    against Ms. Stewart and Mr. Yousry based upon the allegations
       25    of the Count 2 conspiracy when they are not alleged to be a
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        1    member of that conspiracy?  That was the point I was trying to
        2    make yesterday.
        3             There is a difference between the possible
        4    admissibility of evidence and whether something can be admitted
        5    as statements by co-conspirators under an agency theory.
        6             MR. BARKOW:  It would not, your Honor, because it
        7    would be admissible against Mr. Sattar for the truth and then
        8    as background and context under our theory therefore to prove
        9    the existence of a Count 2 conspiracy, and then that is a
       10    predicate to Counts 4 and 5 and therefore background and
       11    context as to those.
       12             THE COURT:  But it couldn't be admitted then for the
       13    truth of any of those statements against either Ms. Stewart or
       14    Mr. Yousry.
       15             MR. BARKOW:  Correct.
       16             THE COURT:  Your chart indicates all defendants,
       17    Federal Rule of Evidence 801(d)(2)(e).
       18             MR. BARKOW:  The court is referring to the June 28th
       19    chart?
       20             THE COURT:  I am on the July 6 letter.
       21             MR. BARKOW:  Okay.
       22             And what I meant to communicate by Footnote 2 when I
       23    said that it was admissible as to those three charges and by
       24    direct evidence of Count 2, what I meant to communicate there
       25    is direct evidence admissible for the truth to prove Count 2
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        1    and then as background and context for Counts 4 and 5 because
        2    Count 2 would be proven to exist and therefore under Counts 4
        3    and 5 it could be the recipient of material support.
        4             THE COURT:  How could it be admitted even as
        5    background for the truth against defendants who are not alleged
        6    to be co-conspirators?  It lacks the agency.
        7             MR. BARKOW:  Correct.  It would be offered against
        8    Sattar for the truth and then as background and context because
        9    the Count 2 conspiracy would have been proven to exist and so
       10    therefore it would be background and context to Counts 4 and 5,
       11    not for the truth.  The only reason why it would matter, for
       12    example, for Stewart and Yousry that we prove that Abdel Rahman
       13    admitted on behalf of the conspiracy that he was a terrorist
       14    and an assassin would be to show that the Count 2 conspiracy
       15    existed and therefore was a conspiracy to murder and therefore
       16    could receive material support.  But it would not be offered
       17    for the truth against them.  It would be offered to show the
       18    existence of the Count 2 conspiracy as a predicate.
       19             THE COURT:  But it's being offered for the truth of
       20    the existence of the Count 2 conspiracy.
       21             MR. BARKOW:  Correct.
       22             THE COURT:  So it's being offered for the truth
       23    against defendants as to whom it cannot be offered as for the
       24    truth.  A conspiracy can be proved in many ways by many
       25    different kinds of evidence and why is it not correct that you
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        1    have to analyze the individual evidence according to all of the
        2    rules of evidence and that if it's not admissible for the truth
        3    against defendants, then it's not admissible for the truth and
        4    that just calling it something else doesn't make it admissible
        5    for the truth against those defendants.
        6             MR. BARKOW:  I am not arguing that it's admissible for
        7    the truth, your Honor, against them.
        8             THE COURT:  But aren't you?  If you say the jury can
        9    consider that for the truth of the statements to establish the
       10    existence of the Count 2 conspiracy and can then take that
       11    based on what statements for the truth, even though the jury is
       12    not entitled to consider those for the truth against the other
       13    defendants.
       14             MR. BARKOW:  I guess the way that I would look at it,
       15    your Honor, is that in terms of a chronology of decision-making
       16    for the jury, they could consider the statements for the truth
       17    to determine whether the Count 2 conspiracy exists with respect
       18    to Mr. Sattar because it's the only person charged with it.  If
       19    they decide that it doesn't exist or it didn't exist and that
       20    it wasn't prepared for, then they can't convict Mr. Yousry or
       21    Ms. Stewart.  If they do decide that it existed or was prepared
       22    for, then they have to move on to the separate question of
       23    whether Ms. Stewart and Mr. Yousry provided or concealed
       24    material support to that conspiracy that they found to have
       25    existed.
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        1             When they are making that determination, they can no
        2    longer consider for the truth of the matter asserted those
        3    statements, but in fact they don't need to because they have
        4    already decided that there is this entity out there, this
        5    conspiracy to kill and kidnap, that could be the recipient of
        6    this material support.  And at that point they wouldn't be
        7    using the statements to determine whether or not Ms. Stewart or
        8    Mr. Yousry provided or concealed, they would have already used
        9    them to determine that the conspiracy to murder existed.
       10             THE COURT:  Well, I try very carefully to make sure
       11    that I analyzed all the theories of admissibility very
       12    carefully and to make sure that each individual ruling is as
       13    correct as I can make it.
       14             These documents hardly go to the heart of the case.
       15    The 2040 is a speech not clear as to when it was given.  The
       16    Count 2 conspiracy is alleged in the indictment to have begun
       17    in 1999, although the argument is made that in '99 it became a
       18    conspiracy to violate the laws of the United States as already
       19    set out.  But we have a speech of unknown date.  And the other
       20    two speeches or the other two documents are in fact later in
       21    time but not offered for the truth.
       22             I do have a question with respect to the defendants on
       23    the arguments that were made.
       24             Mr. Ruhnke, I appreciate the careful lines that are
       25    drawn about evidence, how it can be used and what the rules of
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        1    evidence are with respect to hearsay and truth, purposes for
        2    which it's offered, and there is a distinction, as I have said
        3    before, as to whether something could be offered for the truth
        4    because of a co-conspirator nonhearsay determination and
        5    whether some evidence is simply relevant to the existence of
        6    the Count 2 conspiracy which, as I said even if the defendants
        7    Stewart and Yousry went to trial on a severed indictment, the
        8    government would be required to prove the existence of the
        9    Count 2 conspiracy.  So evidence of the existence of the Count
       10    2 conspiracy would be part of that case, right?
       11             MR. RUHNKE:  Of course.
       12             THE COURT:  It wasn't clear to me from your argument
       13    that simply because it goes to the Count 2 conspiracy that it
       14    follows that the limiting instruction shouldn't be simply that
       15    it's, if in fact this is right, that it goes to or can be
       16    considered only with respect to some limiting instruction that
       17    it goes to the Count 2 conspiracy.
       18             MR. RUHNKE:  I think I understand what your Honor is
       19    saying and if, for example, there is a severance and the
       20    government was offering evidence as to this person who is not
       21    here by the name of Mr. Sattar and what he had done, and the
       22    obvious question in the jury's mind would be why are we hearing
       23    all of this stuff about this guy Sattar who is not on trial
       24    here --
       25             THE COURT:  There are the charges in the indictment.
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        1    There is a Count 2 conspiracy.  There is a Count 4 and a Count
        2    5.
        3             MR. RUHNKE:  Right.  But there is no reason to even
        4    limit the evidence, other than to say that it's not admissible,
        5    period, end of story, against Ms. Stewart and Mr. Yousry.  And
        6    if there comes a time when you are instructing the jury, and
        7    that is almost what I thought Mr. Barkow was getting at, is to
        8    say that if you don't find the existence or if you don't
        9    convict anybody of the count it conspiracy, it's over as far as
       10    Mr. Yousry and Ms. Stewart are concerned on Counts 4 and 5,
       11    that is a jury instruction issue.  Here we are talking about
       12    the admissibility of evidence, what purpose evidence is
       13    admitted for and as to whom it's admitted, and the main
       14    proposition is that it is not admissible against Ms. Stewart
       15    and Mr. Yousry at all.  If when we come time to instruct the
       16    jury, I assume one of the things we will talk about is the
       17    relationship between the Count 2 conspiracy and Counts 4 and 5
       18    and the necessity for the jury, before even they are going to
       19    consider Counts 4 and 5, to have made some determination as to
       20    whether Count 2 has been proven beyond a reasonable doubt or
       21    not.  If it hasn't been, that they are instructed simply that
       22    they must acquit Mr. Yousry and Ms. Stewart on Counts 4 and 5.
       23             So it's a difference between an instructional kind of
       24    issue and the people as to whom evidence is actually admitted
       25    at the trial.  So I maintain the position that the proper
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        1    instruction is that this evidence is not admitted and may not
        2    be considered for any purpose as to whether Ms. Stewart and
        3    Mr. Yousry are guilty of any of the counts in the indictment at
        4    this point.  When it comes time to instructing the jury.  There
        5    are other charges in the indictment besides 4 and 5 as well.
        6    So that when we start limiting the instructions in this case it
        7    has been part of our 403 argument, is that it gets pretty
        8    esoteric.
        9             When certain evidence is offered as to one defendant
       10    but not other defendants, but offered as to some defendants in
       11    some other cases as to limited purposes and some defendants as
       12    to the truth and some as not for the truth, and some as to only
       13    particular counts, that it's going to get pretty esoteric and
       14    hence our thought that perhaps we might find a way of charting
       15    this out for the jury when it goes back to finally consider
       16    this evidence.  But as far as this evidence that we are
       17    discussing right now, these three pieces or three documents,
       18    two speeches and a will, I don't conceive of any of this
       19    evidence being offered realistically as to Mr. Yousry and Ms.
       20    Stewart except on some theory the government has that, well,
       21    it's background and context of 4 and 5.  It's really not
       22    background and context of 4 and 5.  Either the government
       23    proves Count 2 or 4 and 5 go away.  So I maintain the position
       24    it's not admissible for any purposes against Mr. Yousry and Ms.
       25    Stewart.
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        1             MR. TIGAR:  Your Honor, may I be heard briefly on that
        2    issue?  If you go back a few pages in the transcript, Mr.
        3    Barkow was addressing the court about Counts 4 and 5 and I
        4    remarked to myself then that he left out an element because Ms.
        5    Stewart and Mr. Yousry are not guilty unless they knew and
        6    intended.  It is their knowledge and intent.  And that is what
        7    the parties opened on, knowledge and intent.  And now what is
        8    proposed to be offered are three documents of the existence of
        9    which they are, so far as the evidence shows or will show,
       10    utterly innocent.  And, thus, if there is some relevance it is
       11    considerably attenuated by virtue of the parties having defined
       12    the issues as they do.  And, in fact, because this is a case in
       13    which the parties opened on the issue of knowledge and
       14    intent --
       15             THE COURT:  Well, I don't mean to interrupt you, but I
       16    fully appreciate that the parties have briefed in their jury
       17    instructions the issue of whether it should be knowledge and
       18    intent or knowledge or intent and that you are using knowledge
       19    and intent.  The statute uses knowledge or intent and I plainly
       20    will decide this issue in the context of the jury instructions
       21    but I tried very hard in my opinion on these particular charges
       22    to reflect the statute when I was referring to the statute,
       23    which is knowledge or intent, and refer to the indictment as
       24    knowledge and intent because as the parties knowledge, the
       25    indictment has to charge in that language of knowledge and
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        1    intent.
        2             And it is, as I said, a high specific intent crime
        3    because it requires knowledge or intent with respect to the
        4    provision of the resources to the conspiracy to kill or kidnap.
        5    And I didn't want the fact that you were explaining that to go
        6    as an assumption that I was agreeing with the formulation of
        7    knowledge and intent.
        8             MR. TIGAR:  I wouldn't play that game, your Honor.
        9    And I think I am the one that cited Chookshank, which is the
       10    19th Century case that said that -- which has not been cited by
       11    the Supreme Court since Justice Stewart did in 1962.  But that
       12    wasn't my point.  My point was that regardless of the mental
       13    element, whether it's knowledge and intent or knowledge or
       14    intent, let's take the lower one in model penal code terms, the
       15    quadrapartite model penal code statement about intent, let's
       16    take knowledge, which is one down from purpose or intention.
       17    Even on that lower one it simply doesn't work.  The parties
       18    have opened on this theory.  That is what it's about.  So my
       19    point that the relevance is attenuated, and it's that
       20    attenuated relevance plus the risk of unfair prejudice and
       21    spillover that in our view makes the point that Mr. Ruhnke was
       22    making.
       23             MR. BARKOW:  Your Honor, if I may just respond
       24    briefly, the relevance of these statements, because they are
       25    being offered as to Count 2 directly, is to show the existence
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        1    of Count 2 and Abdel Rahman is alleged to be a co-conspirator
        2    in that conspiracy and, therefore, for example, his intent is
        3    highly relevant to whether or not that conspiracy exists, which
        4    is a completely different issue than the one Mr. Tigar is
        5    raising here.  And so I think that is the --
        6             THE COURT:  But the issue that is really being raised
        7    is the issues of knowledge, intent are very important in the
        8    case and the focus on at least from the standpoint of
        9    defendants Stewart and Yousry and their knowledge, their
       10    intent, is both their knowledge of the existence of the other
       11    conspiracy and that they are providing material resources to
       12    such a conspiracy, and that, of course, this evidence doesn't
       13    go specifically to that.  It's alleged to go to the existence
       14    of the Count 2 conspiracy in various forms and, you know, one
       15    of the things that I have to think about with respect to all of
       16    these documents is how the quantity of evidence with respect --
       17    already with respect to the state of mind with respect to
       18    Sheikh Abdel Rahman, which there have been substantial evidence
       19    with respect to his various speeches and what he explained, et
       20    cetera, and how this evidence fits in with that over requests
       21    for limiting instructions and how I fit that in with 403.
       22             MR. BARKOW:  Your Honor, maybe I will come at it from
       23    this way:  Our view of Mr. Ruhnke's --
       24             THE COURT:  But the other thing is we are dealing
       25    with -- it's always some interest to me about how evidence
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        1    which is before the most important evidence in the case,
        2    namely, what actually went on in the period charged in the
        3    indictment with respect to the conspiracies charged in the
        4    indictment, and how what the level of relevance is to that
        5    evidence as I balance it against the 403 interests.
        6             Go ahead.
        7             MR. BARKOW:  Your Honor, Mr. Ruhnke's proposed
        8    instruction we view as overbroad and we think that an
        9    instruction along the lines of these statements can be
       10    considered -- maybe a more positive rather than negative
       11    statement -- these statements can be considered as to the
       12    existence of the Count 2 conspiracy and as to Abdel Rahman's
       13    membership in it and his intent.  Stated positively that way
       14    would be a correct statement of the law and would communicate
       15    what the proper use of these statements are.  And I don't mean
       16    to be exhaustive in that proposal, but just kind of pointing
       17    out the difference in the approach because we think that Mr.
       18    Ruhnke's proposal is overbroad by implying that there is no
       19    connection whatsoever between the statements and the existence
       20    of the Count 2 conspiracy and Counts 4 and 5.  And so that is
       21    why we resist that proposal.
       22             With respect -- and the court knows this so I won't
       23    spend much time on this, but even if, for example, the 2040
       24    speech is viewed as too old and therefore not admissible under
       25    801(d)(2)(e), either because its relevance is attenuated or it
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        1    fails the 403 balancing or because it just doesn't satisfy the
        2    801(d)(2)(e) test, it still, however, we think, would be
        3    relevant to show Abdel Rahman's intent because he is the same
        4    person when he was a member of the conspiracy as he was when he
        5    made these statements.  And so it's relevant to show his intent
        6    because he is a member of that conspiracy and it certainly
        7    casts light on his intentions and his conduct in this case.
        8    And with respect to Mr. Tigar's argument, he brings me back to
        9    what I started with, Mr. Sattar's opening statement in
       10    significant part rested on attempting to draw a distinction
       11    between his activities being should be placed in context and
       12    weren't directed at violence but are instead -- and I am just
       13    paraphrasing -- but are instead largely political.  But the
       14    existence of a conspiracy to murder is proven powerfully, we
       15    submit, by the fact that Abdel Rahman makes such powerful
       16    statements, such as the 2040 statement where he essentially
       17    admits we are terrorists, we are assassins, and in the sink
       18    ships fatwah, 2070.  And so that is the relevance, the powerful
       19    relevance, here of these statements is to prove the existence
       20    of that conspiracy to kill and kidnap and also to rebut what
       21    appears to be Mr. Sattar's defense, which is a different issue
       22    than Ms. Stewart's and Mr. Yousry's knowledge and intent or
       23    knowledge or intent of the Count 2 conspiracy.
       24             And so I wanted to make those points.
       25             Finally, a very small point.
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        1             And I wanted to make clear we do not need to prove
        2    that the Count 2 conspiracy actually existed in our view.  It's
        3    either that it existed or it was being prepared for and so I
        4    just want to kind of pre-staging the jury instructions issue,
        5    which I am certainly not the expert on, Ms. Baker is, but Mr.
        6    Ruhnke was alluding to down the road jury instruction issues.
        7    The statute says that in order to provide material support the
        8    conspiracy to kill or kidnap has to exist or be prepared for
        9    and I just wanted to point that out, your Honor.
       10             THE COURT:  Okay.
       11             Anyone else?
       12             All right.  I will think about it.  I don't expect I
       13    will have an answer on this tomorrow.  All of the other
       14    exhibits are more than sufficient for tomorrow morning.
       15             MR. BARKOW:  We don't know exactly how long they will
       16    take but they will take -- that are what we have for tomorrow
       17    morning, we think it will probably take an hour and a half, a
       18    little over 2 hours or so.
       19             THE COURT:  I thought there was also the possibility
       20    of other witnesses.
       21             MR. MORVILLO:  There was going to be one final witness
       22    from Scotland Yard tomorrow morning, your Honor, but the
       23    parties have come to a stipulation with respect to that
       24    testimony so it will not be necessary to have that witness.
       25             THE COURT:  Okay.
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        1             MR. MORVILLO:  There is also a possibility there might
        2    be another witness and we are trying to arrange that now.
        3             MR. TIGAR:  I am sorry, your Honor, one last thought.
        4             THE COURT:  Sure.
        5             MR. TIGAR:  This is not a case in which the Count 2
        6    conspiracy risks failing for want of a second conspirator.  The
        7    question of Abdel Rahman's membership in the Count 2 conspiracy
        8    is not, under the way the parties have framed the issues, one
        9    of those elements of the offense or whatever.  Indeed, up to
       10    now the membership issue has only been relevant with respect to
       11    Bourjaily type 104 determinations to determine whether and
       12    under what circumstances the 801 nonhearsay comes in.  It's
       13    another way of talking about the relatively peripheral
       14    character of this question that the government is raising.  If
       15    the court is unpersuaded by that additional observation, or if
       16    I am reducing the persuasive power of what I have already said,
       17    then I will sit down.
       18             THE COURT:  Okay.  All right.
       19             Anything else?
       20             Okay, thank you all.  See you tomorrow at 9:15.
       21             (Trial adjourned to July 8, 2004 at 9:15 a.m.)
       22                                 o 0 o
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        1                          INDEX OF EXAMINATION
        2    Examination of:                               Page
        3    PATRICK KILLEEN
        4    Direct By Mr. Dember . . . . . . . . . . . .  3225
        5                                 o 0 o
        6                          GOVERNMENT EXHIBITS
        7    Exhibit No.                                    Received
        8      2702   . . . . . . . . . . . . . . . . . .  3230
        9      2703   . . . . . . . . . . . . . . . . . .  3234
       10      2704   . . . . . . . . . . . . . . . . . .  3236
       11      2705   . . . . . . . . . . . . . . . . . .  3239
       12      2706   . . . . . . . . . . . . . . . . . .  3243
       13                                 o 0 o
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