8 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.

This is the transcript of Day 19 of the proceeding and Day 10 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
        3               v.                            S1 02 Cr. 395 (JGK)
        4    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        5    and MOHAMMED YOUSRY,
        6                          Defendants.
        7    -------------------------------------x
        8                                            July 8, 2004
        8                                            9:38 a.m.
       10    Before:
       11                          HON. JOHN G. KOELTL
       12                                            District Judge
       13                              APPEARANCES
       14    DAVID N. KELLEY
       15         United States Attorney for the
       15         Southern District of New York
       16    ANTHONY BARKOW
       17    ANDREW DEMBER
       17         Assistant United States Attorneys
       18    KENNETH A. PAUL
       19    BARRY M. FALLICK
       19         Attorneys for Defendant Sattar
       20    MICHAEL TIGAR
       21         Attorneys for Defendant Stewart
       22    DAVID STERN
       23    DAVID A. RUHNKE
       23         Attorneys for Defendant Yousry
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1               (In open court; jury not present)
        2             MR. TIGAR:  Your Honor, we have been reviewing the
        3    draft transcript of this SAM reading, the one that they're
        4    going to play the tape of, the people reading the SAM to Sheikh
        5    Omar Abdel Rahman in April, 2000.  The government is going to
        6    play the tape today.
        7             Later, they're going to bring the translator.  And
        8    we've now reviewed the transcript with the translator
        9    translating and so on, and our application is that under
       10    Rule 106, that the Court admit all of the SAM reading
       11    videotapes from Rochester in addition to the one, the April,
       12    2000, one that's now in evidence.  I don't think there can be
       13    an authenticity question.  And we don't intend to publish them
       14    now.
       15             MR. DEMBER:  Your Honor, if I may.  There's only one
       16    videotaped rendition of the reading of the SAMs to Omar Abdel
       17    Rahman that's in evidence.  That's Exhibit 370.  We have not
       18    offered any other tape, videotape renditions of the SAMs to
       19    Abdel Rahman into evidence.  They were read to him.  Some were
       20    videotaped, some were not videotaped.  On a particular day,
       21    each one was read, about four months apart.  I can't conceive
       22    of how Rule 106 would apply to the reading of SAMs on April 19,
       23    2000, which is the date of the videotape, how Rule 106 applies
       24    to that reading and to a reading of the SAMs which may have
       25    been videotaped four months before that, or eight months before
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        1    that.  Clearly Rule 106 does not apply.
        2             To the extent that Mr. Tigar wants to offer those
        3    other videotapes into evidence, there was testimony that some
        4    of the readings of the SAMs were videotaped and some were not,
        5    but to the extent he wants to offer those into evidence at some
        6    point during this trial, he can offer them during his own case,
        7    or he's mentioned for the first time to me this morning that he
        8    may want to offer them and maybe we can come to an agreement on
        9    that.  But I'm not prepared at this point to decide if we will
       10    do that or not.  And that has nothing to do with and should
       11    have nothing to do with our playing Exhibit 370 this morning.
       12    Certainly Rule 106 simply does not apply to separate readings
       13    of the SAMs over the years that Abdel Rahman was in Rochester
       14    when they're read approximately four months apart.
       15             MR. TIGAR:  Your Honor, the SAMs are renewed.  There
       16    are initial SAMs and then, as Mr. Fitzgerald testified, there
       17    are a series of renewals through the process.  And that's the
       18    relationship, the integra of the relationship, and the
       19    indictment alleges that.
       20             THE COURT:  At this point, I'm -- regarding the
       21    reading of any other SAM, there's only one in evidence, and
       22    there's no showing that Rule 106, that -- first of all, there
       23    is only one reading that's in evidence which is government
       24    Exhibit 370.  There was no request at that time when that
       25    exhibit was in evidence that any other exhibit was necessary
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        1    for purposes of completeness under Rule 106.  And there is no
        2    showing at this point that the exhibit that's in evidence and
        3    is to be played to the jury should be supplemented with any of
        4    the other recordings.
        5             The parties are welcome to continue to explore whether
        6    any of the other SAMs should be admitted into evidence and
        7    should be read at a later time to the jury, but there's nothing
        8    under Rule 106 that would prevent Government Exhibit 370 from
        9    being read at this time.
       10             MR. BARKOW:  Your Honor, I just wanted to make the
       11    Court aware of three quick points before the jury came in.  Two
       12    relate to our presentation of the Sattar search evidence.
       13             The first is, I'd like, before I start to do that, as
       14    we have some other evidence, re: the relevant portion of the
       15    stipulation, just to situate the jurors as to what this
       16    evidence is.  That's Exhibit 185, and I would read one
       17    paragraph from that to basically establish that we're talking
       18    about that evidence, and it would be Paragraph 4 which talks
       19    about how the evidence was transported from the Sattar
       20    apartment to the FBI building.  So I just wanted to make the
       21    Court aware of that rather than asking in front of the jury.
       22             And secondly, one of the exhibits that we intend to
       23    publish today is from the Abdel Rahman trial, and it has a few
       24    lines by Ms. Stewart, and pursuant to the Court's ruling, we
       25    were intending to have another person from office, Ms. Levin,
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        1    who is sitting in the audience, come up and read those parts,
        2    and I wanted to raise that with the Court beforehand as well.
        3             And finally, on a different issue, the letter that we
        4    sent to the Court last night, it came to our attention this
        5    morning that inadvertently there was a page between the letter
        6    and the cover sheet for Attachment A that has nothing to do
        7    with this case, and even though we've now learned it's labeled
        8    "sensitive", it is not a problem, and to the extent it was even
        9    sent to the defendants -- but it has nothing to do with the
       10    letter.  It was a mistake.
       11             THE COURT:  I saw it was sent to the defendants
       12    because it was faxed to me and I would assume that the same fax
       13    went to all of the people on the distribution list.
       14             MR. BARKOW:  I assume so, and it's in our copies that
       15    were distributed within our office.  It just was a mistake:  It
       16    was picked off the same copy machine.
       17             THE COURT:  I don't know what it is.  It was plainly a
       18    summary of public information.
       19             MR. DEMBER:  Your Honor, just one matter:  Since we're
       20    going to play Exhibit 370 first, may I simply introduce it as
       21    an exhibit which was -- came into evidence through the
       22    testimony of Kara Christenson and that she testified it was a
       23    videotape of the reading of a renewal of the SAMs to Omar Abdel
       24    Rahman on April 19th, 2000?  That's from her testimony.  Just
       25    so the jury can put it into perspective.
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        1             THE COURT:  I have no problem with that.  Any problem
        2    with that?
        3             MR. TIGAR:  I'm sorry, your Honor.  I was conferring
        4    about another matter.  I didn't hear counsel.  If he wants
        5    to -- we have no objection to him playing it.
        6             THE COURT:  He wanted to introduce it with the
        7    explanation that it had been introduced during the testimony of
        8    Ms. Christenson who said that it was a videotape of the reading
        9    of SAMs to Omar Abdel Rahman on such-and-such a date.
       10             MR. TIGAR:  Thank you, your Honor.  Yes.  We have no
       11    objection to that.  I'm sorry.
       12             THE COURT:  All right.  Mr. Dember?
       13             MR. DEMBER:  Thank you, your Honor.
       14             MR. RUHNKE:  Just one final request:  I assume your
       15    Honor will read the appropriate limiting instruction about some
       16    of this evidence.  I'm not sure all of it -- as I'm sitting
       17    here, I'm not sure it's all defendants, some defendants...
       18             MR. BARKOW:  As we discussed yesterday, the first
       19    three items are those that are offered against Mr. Sattar and
       20    Ms. Stewart.
       21             THE COURT:  Hold on.  The first thing that's going to
       22    be read is Government Exhibit 370, as to which there's no
       23    limiting instruction.  The next is the stipulation, as to which
       24    there's no limiting instruction; and the exhibit from the Abdel
       25    Rahman trial, as to which there's no limiting instruction.
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        1    Right?
        2             MR. BARKOW:  No, your Honor, the first thing is the
        3    tape that will be played.  Then we're going to turn to Sattar's
        4    search evidence.  I was going to read the stipulation.  And
        5    then there are three exhibits from the Sattar search.
        6             THE COURT:  What about the exhibit from the --
        7             MR. BARKOW:  That's what I was referring to when I
        8    said -- from the Omar Rahman trial.  It's a Sattar search
        9    exhibit from that trial.  And so it's a transcript of that
       10    trial.  And so that is within the Sattar search realm.  And
       11    after the videotape, everything else that we have is from the
       12    Sattar search, and the first three are offered against
       13    Mr. Sattar and Ms. Stewart; and the remainder that I would get
       14    to are offered only against Mr. Sattar.
       15             THE COURT:  2036, 2009, 2009A.
       16             MR. BARKOW:  Correct.
       17             THE COURT:  As to which I'll advise the jury, as I
       18    said yesterday, that these exhibits are offered only against
       19    Mr. Sattar and Ms. Stewart, and not against Mr. Yousry.
       20    They're offered with respect to knowledge and intent and state
       21    of mind of Mr. Sattar and Ms. Stewart.  To the extent that any
       22    of them contain newspaper articles, I'll give the instruction
       23    on newspaper articles.
       24             MR. RUHNKE:  And would your Honor say they are not to
       25    be considered by the jury against Mr. Yousry for any purpose?
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        1             THE COURT:  I thought that the instruction I had said
        2    that I would give and everyone agreed on yesterday was the one
        3    that I just gave.
        4             MR. RUHNKE:  Perhaps that's so, your Honor.
        5             THE COURT:  I'm sorry?
        6             MR. RUHNKE:  Perhaps that is so.  And I think I'd
        7    asked for something a little stronger so the jury gets the idea
        8    in this case on limiting instructions that this evidence is not
        9    coming in as to Mr. Yousry and should not be considered for any
       10    purpose as to Mr. Yousry.  If that's an amendment of what your
       11    Honor stated yesterday or if the government disagrees with
       12    that, then so be it.  But I think it's important that the jury
       13    know that if this was Mr. Yousry's trial all by himself, they
       14    wouldn't be hearing this evidence.
       15             THE COURT:  Government?
       16             MR. BARKOW:  Your Honor, we think that the Court's
       17    proposed instruction is appropriate and adequate, and this is
       18    the issue that we discussed yesterday.  And we think that this
       19    is -- goes to the interrelationship of Count 2 with Counts 4
       20    and 5.
       21             THE COURT:  You know, the parties have agreed on this,
       22    and --
       23             MR. RUHNKE:  That's fine, your Honor.  I'll withdraw
       24    my request.
       25             THE COURT:  Particularly with respect to the remaining
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        1    Sattar exhibits, those were admitted solely against Mr. Sattar
        2    and not against Ms. Stewart or Mr. Yousry.  They're admitted
        3    solely with respect to the knowledge, intent and state of mind
        4    of Mr. Sattar.  If any of them are newspaper clippings, they're
        5    subject to the same limiting instruction with respect to
        6    newspaper clippings.
        7             And 2050 -- and 2050A to L and 2072 are, again,
        8    admitted only against Mr. Sattar, and not against Ms. Stewart
        9    and Mr. Yousry.  And in addition to knowledge, intent and state
       10    of mind of Mr. Sattar, with respect to Mr. Sattar, they're
       11    being admitted with respect to background and context.
       12             MR. BARKOW:  We agree, your Honor.
       13             THE COURT:  Are you in agreement with that?
       14             MR. FALLICK:  Yes, your Honor.
       15             MR. RUHNKE:  Yes.
       16             THE COURT:  All right.  And I'll give those
       17    instructions in two portions.  First, before you -- after you
       18    read the stipulation 2085 and before you read 2036, 2009 and
       19    2009A; and then I'll give the remaining instructions before you
       20    start reading the remainder of the Sattar exhibits.
       21             Okay.  Let's bring the jury in.
       22             What happened to the stipulation with respect to the
       23    remaining Scotland Yard --
       24             MR. MORVILLO:  I'm sorry, your Honor?
       25             THE COURT:  What happened with respect to the
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        1    stipulation with respect to the remaining Scotland Yard
        2    detective?
        3             MR. MORVILLO:  It's been executed and we are in
        4    agreement.  So --
        5             THE COURT:  But it's not one of the things you're
        6    going to use today's time for?
        7             MR. MORVILLO:  That's correct.  It relates to the
        8    issue of what's on the recordings that we'll seek to move into
        9    evidence next week.
       10               (Jury entering)
       11               (In open court)
       12             THE COURT:  All rise, please.
       13             Please be seated, all.
       14             Good morning, ladies and gentlemen.
       15             JURORS:  Good morning.
       16             THE COURT:  It's good to see you all.  All right.
       17    Government?
       18             MR. DEMBER:  Your Honor, with your permission at this
       19    time the government would request permission to play Government
       20    Exhibit 370.  Government Exhibit 370 is a videotape which was
       21    introduced during the testimony of Kara Christenson, who
       22    testified it was a videotape of a reading of a renewal of the
       23    Special Administrative Measures to Omar Abdel Rahman on
       24    April 19th, 2000.
       25             THE COURT:  All right.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             (At this point, Government Exhibit 370, received in
        2    evidence, was played for the jury)
        3             MR. BARKOW:  Your Honor, may I proceed?
        4             THE COURT:  Yes.
        5             MR. BARKOW:  Your Honor, with the Court's permission
        6    I'd like to read from what has already been admitted into
        7    evidence, Government Exhibit 2085, Paragraph 4.
        8             THE COURT:  All right.  This is a stipulation?
        9             MR. BARKOW:  That's correct.  I'll show the first page
       10    again.
       11             (At this point, Government Exhibit 2085, received in
       12    evidence, was read into the record by Mr. Barkow)
       13             MR. BARKOW:  Your Honor, with the Court's permission,
       14    I'd like to publish to the jury what's been admitted as
       15    Government Exhibit 2036.  With the Court's permission, if
       16    Ms. Grant could put that on the screen.
       17             THE COURT:  Before you do that, ladies and gentlemen,
       18    there are going to be various exhibits published to you.  And
       19    they're subject to limiting instructions, and, as I've told you
       20    before and I will tell you in my final instructions, of course,
       21    you are required to follow any limiting instructions that I
       22    give you with respect to any evidence.  And you should follow
       23    those instructions very carefully.
       24             Now, the first three exhibits I will give you limiting
       25    instructions on.  Those are, I understand, exhibits which are
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        1    Government Exhibits 2036, 2009 and 2009A.  These exhibits are
        2    offered only against Mr. Sattar and Ms. Stewart, and not
        3    against Mr. Yousry.  These exhibits are being offered only with
        4    respect to the knowledge, intent and state of mind of
        5    Mr. Sattar and Ms. Stewart for any relevance those exhibits, if
        6    any, have to that subject.
        7             And finally, as I've told you before with respect to
        8    newspaper articles, to the extent that any of these exhibits
        9    contain newspaper articles, there is another instruction that
       10    you should carefully remember and follow.  A newspaper article
       11    is not offered for the truth of what's said in the newspaper
       12    article but rather for its effect on any people who read the
       13    newspaper article, to the extent that that is relevant in the
       14    case.  So, for example, the effect that the newspaper article
       15    may have on an individual defendant who reads that article, it
       16    is offered for any effect of the article rather than for the
       17    truth of what's -- anything that's said in the article.
       18    Because what's written in a newspaper article is not
       19    independent evidence of the truth of the facts that are
       20    reported in the newspaper article.  Because a newspaper article
       21    is simply a statement by a reporter out of court about
       22    something that happened, and indeed, that may in turn be based
       23    upon what someone else told the reporter.  And you don't have
       24    the reporter here to testify about that, and you don't have
       25    whoever spoke to the reporter to testify about that.
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        1             That's why newspaper articles are not, in and of
        2    themselves, received for the truth of what's said in the
        3    newspaper article.  They're received, if they are received, for
        4    other purposes such as why people did things, having read the
        5    article, or how it affected the state of mind of the people who
        6    read the newspaper article.
        7             So that is an additional limiting instruction that I
        8    give you with respect to any exhibits that may contain
        9    newspaper articles.  And, as you'll recall, I've given that,
       10    the substance of that same instruction before, with respect to
       11    some other exhibits that contained newspaper articles.
       12             All right?
       13             MR. BARKOW:  May Ms. Grant put Exhibit 2036 on the
       14    screen, your Honor?
       15             THE COURT:  Yes.
       16             (At this point, Government Exhibit 2036, received in
       17    evidence, was read into the record by Mr. Barkow)
       18             MR. BARKOW:  May I have just a moment, your Honor?
       19             THE COURT:  Yes.
       20               (Off the record)
       21             MR. BARKOW:  And your Honor, I'd ask that if Ms. Grant
       22    could be permitted to focus on the fax line on the top, the
       23    very top of this document.
       24             MR. TIGAR:  Could --
       25             MR. BARKOW:  I can read it.
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        1             MR. TIGAR:  May we have every word on all papers read?
        2             MR. BARKOW:  I'm sorry, I'll read that.  9/15, 1998.
        3    I can't read the next word -- 19:26.  212-566 -- your Honor,
        4    may I get the original?  I can't read this copy.
        5             MR. TIGAR:  May I assist counsel?
        6             MR. BARKOW:  Thank you.  212-566-2024.  Lynne F.
        7    Stewart.  Page 1.
        8             May I have just a moment to confer with Mr. Tigar?
        9             THE COURT:  Sure.
       10               (Off the record)
       11             MR. BARKOW:  Now if Ms. Grant could turn to the next
       12    page of this exhibit, 2036.
       13             THE COURT:  All right.
       14             MR. BARKOW:  And as an initial matter focus on the
       15    top.  9/15, 1998.  19:06.  212-566-2024.  Lynne F. Stewart.
       16    Page 2.  Metro, Monday, April 15, 1996.
       17             Now we'll go to the article.
       18             (At this point, Government Exhibit 2036, received in
       19    evidence, was further read into the record by Mr. Barkow)
       20             MR. BARKOW:  If we could go to the next page.  I think
       21    there might be a computer issue, if I could use the ELMO to
       22    publish this.
       23             THE COURT:  All right.  The ELMO, ladies and
       24    gentlemen, is the colloquial name for the machine that's at the
       25    podium that I explained to you where you can put documents on
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        1    the screen and have them published for you, whereby it shows up
        2    by means of a camera, as opposed to a document that's in the
        3    computer and gets called up.
        4             MR. BARKOW:  Continuing, your Honor.
        5             (At this point, Government Exhibit 2036, received in
        6    evidence, was further read into the record by Mr. Barkow)
        7               (Continued on next page)
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        1             MR. BARKOW:  Your Honor, may I turn now to actually
        2    Exhibit 2009A and ask that Ms. Grant put the first page of that
        3    on the screen, and may I confer with Mr. Tigar and give him
        4    back his exhibit, your Honor?
        5             THE COURT:  Yes.
        6             And remember, ladies and gentlemen, this is one of the
        7    first three exhibits that I have already given you the
        8    pre-limiting instructions for.
        9             MR. BARKOW:  Your Honor, I was not going to read this
       10    page.  I just wanted to publish this page to the jury and, if I
       11    could ask Ms. Grant to turn to what is in this document page
       12    1563.
       13             Your Honor, may I have a moment?
       14             THE COURT:  Sure.
       15             (Pause)
       16             MR. BARKOW:  "Appearances:  Mary Jo White, United
       17    States Attorney for the Southern District of New York by Andrew
       18    McCarthy."
       19             THE COURT:  Shouldn't you go back to the first page to
       20    identify what the exhibit is?
       21             MR. TIGAR:  We would suggest that, your Honor.
       22             May I confer briefly with counsel?
       23             THE COURT:  Sure.
       24             MR. BARKOW:  Your Honor, I think there is an issue we
       25    might need to talk about later and so I would like to move on
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        1    to a different exhibit.
        2             THE COURT:  Okay.
        3             MR. BARKOW:  If I may, your Honor, this is a
        4    different -- I am moving to the next group of exhibits for
        5    right now.
        6             THE COURT:  All right.
        7             Ladies and gentlemen, there are a series of exhibits
        8    that I understand will be offered now.  With respect to these
        9    exhibits, these exhibits are being offered only against
       10    Mr. Sattar and not against Ms. Stewart or Mr. Yousry.  They are
       11    being offered solely with respect to the knowledge, intent and
       12    state of mind of Mr. Sattar, any relevance that the exhibits
       13    may have to the knowledge, intent, and state of mind of
       14    Mr. Sattar.
       15             And, third, to the extent that -- well, two exhibits
       16    or series of exhibits 2050A through L and 2072, are also
       17    offered for background and context but, again, those are
       18    offered only against Mr. Sattar and not against Ms. Stewart and
       19    Mr. Yousry.
       20             Finally, to the extent that any of these exhibits
       21    contain newspaper articles, they are subject to the same
       22    limiting instruction that I have given you with respect to
       23    newspaper articles.  Newspaper articles are not received for
       24    the truth of what is said in the newspaper articles, and I have
       25    explained to you why that is true.  They are received, rather,
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        1    for the effect on the person who reads them, for the effect on
        2    the person's state of mind or for what the person does after
        3    reading the newspaper articles.  They are not received for the
        4    truth and you may not consider them for the truth of anything
        5    that is said in the newspaper articles.
        6             All right.
        7             MR. BARKOW:  Your Honor, at this point I would like to
        8    offer into evidence a signed stipulation which has been marked
        9    for identification as Government Exhibit 2086T-A.
       10             THE COURT:  All right.
       11             MR. BARKOW:  And ask that I be permitted to publish it
       12    on the overhead and present it to the jury.
       13             THE COURT:  All right, Government Exhibit 2086T-A.
       14             MR. BARKOW:  Yes, your Honor.
       15             THE COURT:  No objection.  Government Exhibit 2086T-A
       16    received in evidence.
       17             (Government's Exhibit 2086T-A received in evidence)
       18             MR. BARKOW:  "The parties hereby stipulate and agree
       19    that if called as witnesses trial qualified expert
       20    Arabic-to-English translators employed by the Federal Bureau of
       21    Investigation would testify that, in their opinions, the
       22    transcripts marked as Government Exhibits 2000T, 2044T, 2045T,
       23    and 2058T are true and accurate translations from Arabic into
       24    English of Government Exhibits 2000, 20044, 2045 and 2058,
       25    respectively.  Agreed to and stipulated," and it is then signed
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        1    by all of the parties.
        2             THE COURT:  All right.
        3             MR. BARKOW:  Your Honor, at this point I would offer
        4    into evidence Government Exhibits 2045 and 2045T.
        5             THE COURT:  All right.
        6             MR. BARKOW:  And ask that Ms. Grant be permitted first
        7    to put on the computer screen Exhibit 2045.
        8             THE COURT:  All right, ladies and gentlemen,
        9    Government Exhibits 2045 and 2045T are received in evidence
       10    subject to the limiting instructions that I have given you.
       11             (Government's Exhibits 2045 and 2045T received in
       12    evidence)
       13             MR. BARKOW:  If Ms. Grant could cycle through however
       14    many pages there are of this exhibit, just one entire page at a
       15    time.
       16             At this point I would ask that Ms. Grant be permitted
       17    to put Exhibit 2045T on the screen.
       18             THE COURT:  All right.
       19             (At this point, Government Exhibit 2045T in evidence
       20    was read to the jury by Mr. Barkow)
       21             MR. BARKOW:  Your Honor, at this point I would ask if
       22    Ms. Grant could put before the jury what has already been
       23    admitted into evidence as Government Exhibits 2050A through L
       24    one at a time and leave each on the screen for a moment and I
       25    will ask when to go to the next, your Honor.
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        1             THE COURT:  All right.
        2             This is actually a convenient time for us to take our
        3    mid-morning break.  We will take ten minutes, ladies and
        4    gentlemen.
        5             Please remember my continuing instructions not to talk
        6    about the case, and keep an open mind.
        7             All rise please.
        8             Please follow Mr. Fletcher to the jury room.
        9             (Jury left the courtroom)
       10             THE COURT:  Please be seated for just a moment.
       11             I gave a limiting instruction with respect to all of
       12    the exhibits that were coming and when I saw 2050 on the screen
       13    I asked myself why there was a limiting instruction because I
       14    didn't think that there was a limiting instruction when these
       15    photographs were originally entered into evidence.
       16             2050A through L are just photos?
       17             MR. BARKOW:  That is correct, your Honor.  I think
       18    actually now that the court brings it up, I think ultimately on
       19    the cross examination of Mr. Fitzgerald maybe they were all
       20    admitted.
       21             THE COURT:  They were offered by --
       22             MR. BARKOW:  By Mr. Yousry.
       23             THE COURT:  It was originally objected to and I kept
       24    them out and then they were offered on cross by Mr. Stern, I
       25    think, and without objection.  So 2050A through L is not
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        1    subject to any limiting instruction.
        2             MR. BARKOW:  May we have a moment?  Can I confer with
        3    Mr. Stern for a moment?  I don't think they are the same.
        4             MR. STERN:  We offered 2300A through D, I think.
        5             MR. BARKOW:  I don't think they were the same photos.
        6    I was just corrected by Mr. Morvillo as well.
        7             THE COURT:  Okay.  2050A through L were admitted --
        8             MR. BARKOW:  Actually they were admitted after Agent
        9    Schumaker testified.  They were offered and admitted at that
       10    point but they have never been published and so there were no
       11    instructions with respect to those.  I misunderstood for a
       12    moment.
       13             THE COURT:  Okay.  So no limiting instructions with
       14    respect to 2050A through L, right?
       15             MR. BARKOW:  None have been given but they are
       16    actually only offered as the court has just instructed the
       17    jury, they are only offered against Mr. Sattar.  I think there
       18    is no need for a correction.
       19             THE COURT:  That is fine.
       20             MR. RUHNKE:  If that is the case, your Honor, we
       21    should tell the jury that.  I will confess I lost track of what
       22    is admitted for what purpose at this point but obviously I will
       23    take Mr. Barkow's word offering it only as to Mr. Sattar and
       24    therefore the jury should be told that.  I don't think you
       25    specifically referenced these exhibits.  I didn't know these
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        1    exhibits were coming, I guess.
        2             THE COURT:  Oh, no, it's on my list and they were the
        3    two that I told the jury were being offered for not only
        4    knowledge, intent, state of mind of Mr. Sattar but also
        5    background and context with respect to Mr. Sattar.  Those were
        6    Exhibits 2050A through L and 2072.  So they are subject to all
        7    of the limiting instructions that I gave with respect to this
        8    series of exhibits and I gave the jury the instructions as to
        9    what they are being received for.
       10             MR. RUHNKE:  Okay.
       11             THE COURT:  Now, at any time the defendants can
       12    embrace those exhibits too and say admit them against us too or
       13    not.  But right now they are being offered and admitted subject
       14    to those limiting instructions.
       15             Now, there was one other issue with respect to 2009.
       16             MR. TIGAR:  Yes, your Honor.  I simply told Mr. Barkow
       17    that after he finished reading the part of the opening
       18    statements that described the sheikh and his friends as
       19    bloodthirsty killers that I was going to make an application to
       20    read Ms. Stewart's opening statement that describes him
       21    differently.  That I thought was fair because the front page of
       22    2009A indeed contains Ms. Stewart's handwriting which anybody
       23    can see describing the different openings, Khuzami, Stewart,
       24    Stavis, Ricco, and so on.  So that the exhibit taken as a
       25    whole, it seemed that the proposed publication was somewhat
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        1    incomplete and that is when Mr. Barkow decided that this was a
        2    matter that we needed to take up with your Honor.
        3             MR. BARKOW:  Your Honor, the reason that I did that
        4    was this was the first time that I had heard that proposal and
        5    I was in the middle of the presentation.  We had proposed these
        6    particular pages that we were going to publish the first time
        7    we ever discussed it with the defendants and, indeed, when we
        8    reached the agreement as to the admissibility of the exhibits.
        9    We had selected -- and I am not saying we had reached an
       10    agreement that they would not offer these other pages or seek
       11    to read them, I am saying though we had made clear these were
       12    the pages we were going to seek to publish.
       13             We had selected I think a total of 8 to 10 pages that
       14    we were going to read, some of which were parts of the opening
       15    statement of the government with respect to Abdel Rahman, and
       16    then four pages are testimony by a witness.  As I said, for the
       17    first time as I was about to read them I learned that Mr. Tigar
       18    wanted to read what he said to me was I think was the entirety
       19    of Ms. Stewart's opening statement which I don't know how long
       20    it is.  But I imagine it's longer by a significant margin than
       21    what we were proposing.  At that point we made a decision that
       22    we would be content to publish none of it to the jury and leave
       23    it for closing argument and the whole exhibit is in evidence
       24    and we may revisit this and we can talk about it with Mr. Tigar
       25    before we pick particular parts and perhaps reach an agreement
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        1    before I am standing before the jury publishing the exhibits
        2    rather than finding out in the middle of it.
        3             THE COURT:  Have 2009 and 2009A been received in
        4    evidence already?
        5             MR. BARKOW:  Yes, your Honor.
        6             MR. TIGAR:  Your Honor, if they are not going to read
        7    it, then the point is moot.  I would like to respond to the
        8    imputation of Mr. Barkow who quite correctly says there was no
        9    agreement.  I have from the very first day that transcripts of
       10    the Rahman trial, briefs in the Second Circuit, all of those
       11    pleadings -- most of them taken from Mr. Sattar's home --
       12    became an issue, told him that we were going to at the point of
       13    publication -- if they offered only parts we would exercise 106
       14    rights and others, and as to publication at the time they
       15    sought to publish it we would also make the appropriate
       16    statement.  So Ms. Stewart's opening, as a matter of fact, is
       17    12-1/2 pages.  I heard him say 8 plus 4.  If page numbers is
       18    the parity measure, then we are at parity.  But in any case,
       19    your Honor, I don't think we have misled our adversary about
       20    our intentions.
       21             THE COURT:  Okay.
       22             Well, it's moot at the moment because it's not going
       23    to be read.  The parties reached an agreement with respect to
       24    the admissibility of 2009 and 2009A, so it's not subject to the
       25    limiting instructions.  It's not going to be read to the jury
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        1    now.
        2             There is a related issue which I will take up with you
        3    at the end of the day with respect to the closing because I
        4    realize that there is an offer which is objected to with
        5    respect to the closings and I will address that and listen to
        6    argument on that at the end of the day.
        7             Okay.  5 minutes.
        8             (Recess)
        9             (In open court; jury not present)
       10             THE COURT:  Please be seated all.
       11             All right, let's bring in the jury.
       12             MR. BARKOW:  Can I go to the podium, your Honor, and
       13    just pick up?
       14             THE COURT:  Sure.
       15             (Continued on next page)
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        1               (In open court)
        2             THE COURT:  Ladies and gentlemen, when we left off,
        3    the government was about to publish Government Exhibits 2050A
        4    to L, and that was in a series of exhibits that I gave you the
        5    limiting instructions for, and those limiting instructions will
        6    apply to all of the remaining exhibits that you will see today.
        7    Remember, those exhibits are being offered only against
        8    Mr. Sattar, and not against Ms. Stewart or Mr. Yousry.  They're
        9    being offered solely with respect to the knowledge, intent and
       10    state of mind of Mr. Sattar.
       11             And there are two exhibits or proofs of exhibits that
       12    are offered additionally with respect only to Mr. Sattar, also
       13    for background and context, and that is 2050A through L which
       14    you're about to see; and also Government Exhibit 2072.
       15             Remember also that if there are any newspaper articles
       16    in this group of exhibits, apply my instructions, my limiting
       17    instructions with respect to newspaper articles.  They're not
       18    being received for the truth of anything that's said in the
       19    newspaper articles.
       20             And apply the remainder of my instructions, also.
       21             MR. BARKOW:  May I proceed, your Honor?
       22             THE COURT:  Yes.
       23             MR. BARKOW:  Ms. Grant, could you publish first 2050A,
       24    2050B, 2050C, 2050D, 2050E, 2050F, 2050G, 2050H, 2050I, 2050J,
       25    2050K, and 2050L.
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        1             (At this point, Government Exhibits 2050A - L,
        2    received in evidence, were displayed to the jury)
        3             MR. BARKOW:  Your Honor, at this point I'd like to
        4    publish to the jury what has already been admitted into
        5    evidence as Government Exhibit 2069.  And if I could, publish
        6    it to the jury using the overhead.
        7             THE COURT:  All right.  The same limiting instructions
        8    for all of these exhibits, ladies and gentlemen.  As I told
        9    you, these are being admitted only against Mr. Sattar and not
       10    against Ms. Stewart or Mr. Yousry; and they're being admitted
       11    solely for the knowledge, intent and state of mind of
       12    Mr. Sattar.  And if there are any newspaper articles, remember
       13    my continuing instructions about newspaper articles not being
       14    admitted for the truth of any newspaper articles.  Okay?  Okay.
       15             (At this point, Government Exhibit 2069, received in
       16    evidence, was read into the record by Mr. Barkow)
       17             MR. BARKOW:  Your Honor, at this point, I would ask if
       18    Ms. Grant could put before the jury what has been admitted into
       19    evidence as Exhibit 2056.
       20             THE COURT:  All right.  Same limiting instructions,
       21    ladies and gentlemen.
       22             (At this point, Government Exhibit 2056, received in
       23    evidence, was read into the record by Mr. Barkow)
       24             MR. BARKOW:  Your Honor, at this point I'd ask that --
       25    I'd offer into evidence Government Exhibit 2044 and 2044T.
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        1             THE COURT:  Government Exhibits 2044 and 2044T are
        2    received in evidence, subject to the same limiting instructions
        3    as referenced before.
        4             (Government's Exhibits 2044, 2044T received in
        5    evidence)
        6             MR. BARKOW:  Your Honor, may Ms. Grant put before the
        7    jury Exhibit 2044?
        8             THE COURT:  Yes.
        9             MR. BARKOW:  And Ms. Grant does not need to zoom on
       10    these ones.  And if Ms. Grant could be allowed to scroll
       11    through this exhibit.
       12             (At this point, Government Exhibit 2044, received in
       13    evidence, was displayed to the jury)
       14             MR. BARKOW:  And now, could Ms. Grant be allowed to
       15    display upon the screen Exhibit 2044T?
       16             THE COURT:  All right.
       17             (At this point, Government Exhibit 2044T, received in
       18    evidence, was read into the record by Mr. Barkow)
       19             MR. BARKOW:  Your Honor, at this point I'd ask
       20    permission to have Ms. Grant put before the jury what has
       21    already been admitted into evidence as Government Exhibit 2032.
       22             THE COURT:  All right.  Same limiting instructions.
       23             (At this point, Government Exhibit 2032, received in
       24    evidence, was read into the record by Mr. Barkow)
       25               (Continued on next page)
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        1             MR. BARKOW:  Your Honor, at this point the government
        2    offers into evidence a signed stipulation which is marked for
        3    identification as Government Exhibit 2047S, and I would ask
        4    that I be permitted to publish it to the jury on the overhead.
        5             THE COURT:  All right, Government Exhibit 2047S is a
        6    stipulation received in evidence, and you may put it on the
        7    overhead.
        8             (Government's Exhibit 2047S received in evidence)
        9             THE COURT:  No objection.
       10             MR. BARKOW:  "The parties hereby stipulate and agree
       11    that:  Government Exhibit 2047 is a videotape.  The videotape
       12    was recovered from a VCR that was attached to a mounted video
       13    camera in Room D of the Sattar apartment.  When the FBI search
       14    team entered the apartment, the video camera was already on and
       15    recording events inside the apartment.  The tape shows members
       16    of the Sattar family turn on the video camera and then leaving
       17    the Sattar apartment and, some time thereafter, shows the
       18    members of the FBI search team entering the Sattar apartment."
       19             "Agreed to and stipulated," and it is signed by
       20    attorneys for all parties.
       21             Your Honor, at this point the government offers what
       22    has been marked for identification, a signed stipulation, as
       23    Government Exhibit 2049S and ask that I be permitted to publish
       24    it to the jury.
       25             THE COURT:  All right.  Government Exhibit 2049S
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        1    received in evidence, no objection.
        2             (Government's Exhibit 2049S received in evidence)
        3             MR. BARKOW:  "The parties hereby stipulate and agree
        4    that Government Exhibit 2049 is a videotape of an HBO movie
        5    dramatizing the events surrounding the 1993 bombing of the
        6    World Trade Center.  Agreed to and stipulated," and signed by
        7    attorneys for each party.
        8             Your Honor, at this point the government offers into
        9    evidence what has been marked for identification as Government
       10    Exhibits 2000 and 2000T.
       11             I think 2000 has been admitted into evidence, your
       12    Honor, and we offer 2000T.
       13             THE COURT:  All right.  Government Exhibit 2000T is
       14    received in evidence subject to the same limiting instructions,
       15    ladies and gentlemen, that I have given you with respect to
       16    this series of exhibits.
       17             (Government's Exhibit 2000T received in evidence)
       18             MR. BARKOW:  May I have just a moment, your Honor?  I
       19    just have to check my computer.
       20             Your Honor, may Ms. Grant put before the jury Exhibit
       21    2000?
       22             THE COURT:  Yes.
       23             MR. BARKOW:  And Ms. Grant can scroll through however
       24    many pages there are of 2000.
       25             Now, your Honor, may Ms. Grant put before the jury
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        1    Government Exhibit 2000T?
        2             THE COURT:  Yes.
        3             (At this point, Government Exhibit 2000T in evidence
        4    was read to the jury by Mr. Barkow)
        5             MR. BARKOW:  Your Honor, at this point I would ask if
        6    Ms. Grant can put before the jury what is admitted into
        7    evidence already as Government Exhibit 2053.
        8             THE COURT:  All right.
        9             Ladies and gentlemen, subject to the same rulings and
       10    instructions.
       11             (At this point, Government Exhibit 2053 in evidence
       12    was read to the jury by Mr. Barkow)
       13             MR. BARKOW:  Your Honor, at this point, the government
       14    offers into evidence Exhibit 2058T.
       15             THE COURT:  Government Exhibit 2058T received in
       16    evidence subject to the same limiting instructions, ladies and
       17    gentlemen.
       18             (Government's Exhibit 2058T received in evidence)
       19             MR. BARKOW:  At this point, your Honor, may Ms. Grant
       20    place before the jury Exhibit 2058?
       21             THE COURT:  Yes.  Is 2058 in evidence?
       22             MR. BARKOW:  2058 has already been admitted.
       23             THE COURT:  All right.
       24             (Government's Exhibit 2058T received in evidence)
       25             MR. BARKOW:  There is no need to zoom in on this
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        1    exhibit.
        2             Now may Ms. Grant place before the jury Government
        3    Exhibit 2058T?
        4             THE COURT:  Yes.
        5             (At this point Government Exhibit 2058T in evidence
        6    was read to the jury by Mr. Barkow)
        7             MR. BARKOW:  May I have just a moment, your Honor?
        8             THE COURT:  Yes.
        9             MR. BARKOW:  Your Honor, I think the next exhibit
       10    would take longer than the time remaining before the usual
       11    lunch hour.
       12             THE COURT:  All right.
       13             Ladies and gentlemen, we will break for the day and,
       14    as I told you, we won't sit this afternoon.  We won't sit on
       15    Friday, so we will continue on Monday morning at 9:30.
       16             Please remember my continuing instructions, ladies and
       17    gentlemen.  Please don't look at or listen to anything to do
       18    with the case.  Always remember to keep an open mind.  Please
       19    don't talk about the case or anything to do with it.  As I
       20    said, always keep an open mind until you have heard all of the
       21    evidence, I have instructed you on the law, and you have gone
       22    to the jury room to begin your deliberations.  Fairness and
       23    justice requires that you do that.
       24             Have a very good weekend.  I look forward to seeing
       25    you on Monday.
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        1             All rise please.
        2             Please follow Mr. Fletcher.
        3             (Jury left the courtroom)
        4             THE COURT:  Please be seated all.
        5             As a preliminary matter, Mr. Fletcher informs me that
        6    the jurors would like to upgrade the quality of their food, so
        7    we are looking into that.
        8             Second, they would like to go out for lunch, so Mr.
        9    Fletcher will explore with the marshals the possibility of for
       10    a week having the jurors taken out for lunch.  We bring the
       11    jurors breakfast -- danish, juice, coffee -- in the morning and
       12    they get coffee in the afternoon.  One juror wants to bring in
       13    a microwave which is subject to the marshals' agreement and we
       14    will allow that.  If I think of it, I could bring cookies for
       15    the jury in the afternoon, not from the parties but just from
       16    the court.
       17             I take it there is no problem with that.
       18             MR. MORVILLO:  The government has no objection.
       19             MR. RUHNKE:  No objection to the cookies, your Honor.
       20             THE COURT:  All right.
       21             Now, I wanted to talk to you about the remaining
       22    exhibits because I have looked at the remaining exhibits.
       23             First of all, I got Mr. Barkow's letter last night, a
       24    little before 9, about 2040, 2057 and 2070 and, as I understand
       25    the letter, it really relates more to 2070 and 2057.  It
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        1    addresses all three but the main impact of the letter is, as I
        2    read it, that they would be admissible for the state of mind of
        3    Ms. Stewart and Mr. Yousry because the same or very similar
        4    materials were in fact found in the searches of Ms. Stewart and
        5    Mr. Yousry and I will certainly listen to the parties on that.
        6             Does the government want to be heard first?
        7             MR. BARKOW:  No, your Honor.
        8             THE COURT:  Defendants?
        9             MR. RUHNKE:  Your Honor, I just got the letter this
       10    morning and if I am reading it accurately -- I don't want to
       11    take the time to read through it again right now -- what was
       12    found in Mr. Yousry's search -- I think maybe this is
       13    accurate -- was a page of a letter from CNN to Ms. Stewart
       14    broaching topics, one of which is a will.  That is how I read
       15    the government's letter.
       16             I don't see how the finding of the letter from CNN to
       17    Ms. Stewart, which I think anybody could interpret as saying it
       18    was given to Mr. Yousry as interpreter because these are topics
       19    that may come up during the phone call, gives him knowledge of
       20    the contents of the will.
       21             MR. BARKOW:  Your Honor, just so Mr. Ruhnke is aware,
       22    since he didn't have a chance to see this maybe before court
       23    today, Exhibits B and C to the letter were both actually found
       24    in Mr. Yousry's residence.  Mr. Ruhnke may not have had a
       25    chance to look through the whole letter with the attachments
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        1    yet.
        2             MR. RUHNKE:  But C is the interview.
        3             MR. BARKOW:  Correct.  C is the interview.
        4             MR. RUHNKE:  But there is not a suggestion I think
        5    that Mr. Yousry has a copy of the sheikh's will.
        6             MR. BARKOW:  That is correct, your Honor.  The import
        7    of the letter is that Ms. Stewart had documents in the search
        8    that in substance state the content of the will and the
        9    sink-their-ships fatwah.  That is attached as A to the letter.
       10    And the sink-their-ships fatwah is set forth in the first page
       11    of attachment A and the second page seems to be a variation of
       12    the will, or at least kind of the core of the will asking for
       13    violent retaliation if Abdel Rahman is to die in custody.  The
       14    other two items, B and C, were found in -- B was found in both
       15    the Stewart search and the Yousry search, and C was found only
       16    in the Yousry search.  And it is a transcript of a CNN report
       17    that makes reference to the will and makes reference to the
       18    fact that the will urges followers to seek revenge against
       19    whoever kills Abdel Rahman.  But there is not an allegation
       20    that the actual text of the will or the sink-their-ships fatwah
       21    was found in the Yousry search.
       22             MR. RUHNKE:  The point is that --
       23             MR. BARKOW:  And we are not taking the position that
       24    2070 or 2057 should be admitted against either Stewart or
       25    Yousry.  We are just making the point that items that contain
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        1    the same or similar content were found in those searches.
        2             MR. RUHNKE:  If the government is not offering it then
        3    against my client, then I will sit down.  I misunderstood the
        4    import.
        5             MR. BARKOW:  Just to be clear, the things that we
        6    ultimately might offer are the attachments which were found in
        7    the search, but we are not arguing now that --
        8             MR. RUHNKE:  There are a lot of things that might
        9    happen.
       10             THE COURT:  Hold on.  You know, that is fine.  That is
       11    fine.  But just for a bit of history, if memory serves me
       12    right, and it's always helpful to go back to the transcript
       13    rather than my own memory, but I had thought that 2057 and 2070
       14    were not being offered against Ms. Stewart and Mr. Yousry but
       15    only against Mr. Sattar, and then there was the government
       16    letter which went through the explanation of 2070 -- of 2040,
       17    2057 and 2070 and it said, I thought, it was being offered
       18    against all defendants.
       19             And I raised with the government, gee, I thought that
       20    was a change of position and I thought Mr. Barkow said, "What
       21    change of position?"  And you corrected me and I went back to
       22    your prior document and it said all defendants.
       23             MR. BARKOW:  I overstated.  What I just said
       24    overstated.  I am not saying anything different, your Honor,
       25    than what I said yesterday.  We are offering 2070 and 2057T to
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        1    prove Count 2 and this is the same point that I was making
        2    yesterday; that because that is a predicate it is necessary to
        3    be admitted against all the defendants.  All I was saying just
        4    now a second ago is that the fact that the items were found in
        5    the Stewart and Yousry searches diminish the prejudice to
        6    Stewart and Yousry of that admission to prove Count 2 and
        7    therefore to prove a predicate for Counts 4 and 5.  I didn't
        8    mean to say -- I think I overstated.  I didn't mean it to say
        9    anything different or change the position of what I said
       10    yesterday.  So I should not have said what I said a moment ago.
       11             MR. RUHNKE:  I am a little lost.  Are the documents
       12    being offered against my client or not?  If they aren't, I will
       13    sit down.
       14             MR. BARKOW:  Yes, your Honor, they are being offered
       15    to prove Count 2 and since Count 2 is a predicate to Counts 4
       16    and 5 they are being offered against all defendants.
       17             I have a bit of a headache from doing the reading and
       18    I was a little discombobulated at the beginning.
       19             MR. RUHNKE:  Your Honor, let's just parse it out then.
       20    If they are offered to prove Count 2, then they aren't offered
       21    against my client because he is not named as a defendant in
       22    Count 2.  Count 2 is not a "predicate" to Counts 4 and 5.
       23    Count 2 is just simply something the government must prove as
       24    the first step or a necessary step of many to proving Counts 4
       25    and 5.  That does not translate -- and this is the argument we
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        1    had yesterday -- that does not translate into saying the
        2    evidence is admissible against those defendants named in Counts
        3    4 and 5.
        4             I would ask for an instruction at the time that these
        5    are offered, assuming they are offered, assuming the 403
        6    objections are not sustained, which we obviously have not
        7    abandoned, but I think we have clarified that the government
        8    says it offers it on Count 2 and since my client is not named
        9    in Count 2 I take it they are not offered against my client.
       10    But the 403 objections remain.
       11             MR. BARKOW:  Your Honor, I don't want to belabor it.
       12    What I said yesterday is still our position as to the
       13    instruction.  We think it would be appropriate to state it
       14    affirmatively rather than negatively; that it is being offered
       15    to prove Count 2 rather than saying it should not be considered
       16    at all with respect to Stewart or Yousry because of the notion
       17    that we are advancing that since Count 2 is a predicate to
       18    proving Counts 4 and 5 that Mr. Ruhnke's proposed instruction
       19    overstates the appropriate boundaries for the use of this
       20    evidence.
       21             So the point of my letter last night was more to point
       22    out that the danger of unfair prejudice under a kind of a
       23    spillover type theory is diminished because particularly with
       24    respect to Ms. Stewart the content of that statement is going
       25    to be offered with respect to her because she had a copy of it.
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        1             MR. TIGAR:  Your Honor, before I make a comment, I
        2    earlier said that the handwriting on Exhibit 2009A was Ms.
        3    Stewart's.  I have since looked -- it's not.  I didn't want
        4    that counsel admission to come back and haunt me at some later
        5    point.
        6             Now, with respect to this point, I have read the
        7    government's letter carefully.  This morning we heard Madeleine
        8    Albright, the CFRs, translations of a trial in Egypt where five
        9    people were sentenced to death in absentia based on confessions
       10    extracted by the Egyptian security forces.  We have been a
       11    long, long ways, your Honor, and we have yet to hear a
       12    telephone call involving these defendants of the some 250
       13    promised or a prison meeting or anything else.
       14             Before any of this comes in -- and the sheikh's will
       15    is a piece of evidence that has a lot of power -- I suggest
       16    that the court exercise its discretion as follows:  That the
       17    court hear the evidence of the Stewart office search, hear
       18    where this excerpt was found, what was found next to it, give
       19    us the opportunity to exercise rights under Rule 106, to make
       20    objections under Rule 403, to seek the exclusion of it on
       21    whatever grounds we may, to put it in context.  And at that
       22    time, then you will have the evidence about the Sattar search
       23    and the Stewart search.  And then perhaps wait some more for
       24    the Yousry search, whenever that is coming.
       25             So that whatever is decided to be done about this
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        1    document can be done based on a full record, because I am sure
        2    that the government's position with respect to its potential
        3    use may very well change yet again before we get to the
        4    position that the government describes as ultimately.  So it
        5    seems to us, quite respectfully, that it would be improvident
        6    to address the jury with respect to this document now while the
        7    ball is still in play.
        8             And my next observation follows from that.  We have
        9    objected to using the contents of the lawyer's file and the
       10    contents of a trial lawyer against the lawyer and all I can say
       11    is, well, your Honor has ruled on that and I am not trying to
       12    reargue it.
       13             (Continued on next page)
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        1             THE COURT:  Well, I rule on individual issues when
        2    they come up, and -- based upon the arguments before me, and
        3    individual pieces of evidence when they come up.  Some -- and
        4    my rulings are what they are.  There may be some evidence that
        5    comes from a lawyer's file that's not objected to.  There's
        6    some -- and I can't foresee all objections.
        7             MR. TIGAR:  Your Honor, I don't think I was saying
        8    anything different, and I certainly was not intending
        9    disrespect.  I was simply saying that there will be some
       10    arguments about that when this comes up and that that may be
       11    the right time to resolve this issue.  There does not seem to
       12    be any urgency about it.  There particularly isn't any urgency
       13    about it because it is his will, so we obviously maintain our
       14    objection on that ground.
       15             This may be the only time in my whole life when I can
       16    cite the Rule in Shelley's case.  You know, a will is a
       17    document that's supposed to have a future operation -- but
       18    because of what the Court said, I will not now discuss the
       19    issues that I might seek about the search.  I just think that
       20    it's premature.
       21             MR. BARKOW:  Your Honor, I'll just make a quick point.
       22    I think the Court knows this:  We're not offering the
       23    attachments to my letter at this point.  We were just putting
       24    those before the Court so the Court was aware of them.  We are
       25    only offering at this point 2070, 2057 and 2040.
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        1             THE COURT:  What is the government's position with
        2    respect to deferring a ruling on 2040, 2057 and 2070?
        3             MR. BARKOW:  Your Honor, we don't think that there's a
        4    need to do that with respect to those exhibits.
        5             THE COURT:  Let me come back to that.  And I'll
        6    consider the exhibits and the letter.
        7             I was actually -- I had gotten through discussing with
        8    all of you the exhibits up to 2077, 2079.  2077 is a speech by
        9    Omar Abdel Rahman which is offered against all defendants, and
       10    Stewart and Yousry object on the grounds of cumulative,
       11    relevance, authenticity.
       12             2079 is another speech by Omar Abdel Rahman offered
       13    against all defendants.  Same objections by Stewart and Yousry:
       14    Cumulative, relevance, authenticity.
       15             Government?
       16             MR. BARKOW:  Your Honor, 2077 and 2079 I think could
       17    be analyzed under the same method as 2040, 2070, and perhaps
       18    2057.  So I don't have anything new to say about those exhibits
       19    other than just to point to what I had said in my letter of
       20    last night, which is that, different than the exhibits in the
       21    200 series that have already been presented, and that in
       22    addition to being offered with respect to all defendants, were
       23    particularly pointed out to have been heard by Ms. Stewart in
       24    the Abdel Rahman trial, these exhibits were found in
       25    Mr. Sattar's house, and so therefore, since we can't prove that
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        1    Mr. Sattar heard or was present for the reading of the speeches
        2    in the Abdel Rahman trial, these are important because they
        3    were found in his house, and they go to his state of mind.
        4             And then finally, I guess, within those tapes, 2077,
        5    2079, 2040 and 2070 -- so we think the method of analysis is
        6    similar for those.  But we do think that the probative force of
        7    2070 and 2057 in particular is particularly high.  And then the
        8    others can be looked at as a group, we think.
        9             THE COURT:  But that doesn't tell me a reason why they
       10    shouldn't be limited to the -- being received against
       11    Mr. Sattar rather than against the other defendants as to whom
       12    there is an argument of cumulativeness.  You say that the real
       13    probative value -- I'm putting aside 2070, 2057.
       14             MR. BARKOW:  May I have just a moment, your Honor?
       15               (Off the record)
       16             MR. BARKOW:  Your Honor, with respect to that
       17    question, all I can say is that these are -- 2077 and 2079 are
       18    tapes, and therefore we could prove -- and we proffer that we
       19    could -- that it was Abdel Rahman's voice.  And we put them on
       20    equal footing as the other tapes and transcripts in the 200
       21    series that were admitted.
       22             THE COURT:  The 200 series was admitted without a
       23    limiting instruction.  It was admitted also with the additional
       24    instruction by the stipulation that Ms. Stewart was there, so
       25    it's relevant to her state of mind.  But -- and the fact that
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        1    they were on tape, of course, doesn't make a difference in
        2    terms of any impact on the jury because it's in the transcript.
        3             MR. BARKOW:  Really, your Honor, I want to say that
        4    they could be viewed in a cumulative analysis -- and I'm
        5    carving out 2057 and 2070, as the Court did -- 2077, 2079 and
        6    2040 could be viewed I think appropriately by the Court in a
        7    cumulative analysis.  Looking at the other tapes in the 200
        8    series that were already presented, we don't view them as
        9    cumulative because we think that this is an essential issue to
       10    the case, but I can't distinguish them from each other so much,
       11    and so --
       12             THE COURT:  They appear to be similar.
       13             MR. BARKOW:  They're similar.  I can't distinguish
       14    them.  We don't necessarily need even to publish or to present
       15    to the jury all of those.  We would like -- and again, I'm
       16    carving out 2057 and 2070, but they are similar, the content of
       17    them is similar to those that have been presented.  Except with
       18    respect to Mr. Sattar.
       19             THE COURT:  No, I understand that.  I understand.
       20             MR. TIGAR:  Your Honor, it is the similarity that
       21    causes us to urge that they not be introduced in evidence to
       22    burden the jurors further.
       23             Taking a look at 2079 as an example of this, it starts
       24    out with religious speech.  There is no direct advocacy here of
       25    imminent violence.  There is a call for God to bless people who
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        1    are fighting in different parts of the world; there is
        2    criticism of the human rights practices of the Egyptian
        3    government, in the same words that we've heard before.  There
        4    is a discussion of what's happening to -- that Egyptian human
        5    rights stuff is on the second page; that's about tortures and
        6    so on.  The second and third full paragraphs.
        7             Then there is a great deal here about some of this
        8    stuff that's going on in Bosnia, Yugoslavia.  That's part of
        9    it.
       10             The first page is another one of those history
       11    lessons, in almost the same words as the history lessons that
       12    we've already heard, that is, the rise to power of the Muslims.
       13    It's a shorthand version of the Muslim traders eastward sweep
       14    during the latter part of the Eastern Roman Empire and all the
       15    rest of it, so it's duplicative.  It's not very probative of
       16    anything that's alleged in this indictment, because it doesn't
       17    contain any of the really sensational stuff that the government
       18    has previously relied on.
       19             And I think the same observation can be made about
       20    each one of the exhibits in this series.  I mean, I don't mean
       21    to be disrespectful of the government's position, but, you
       22    know, my grandmother used to threaten me, if I was bad, I'd
       23    have to go listen to more sermons.  And I just wonder why we're
       24    all being subjected to this repetitious material.
       25             THE COURT:  Well, some of the things you say cut
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        1    against your position:  The fact that they are not sensational,
        2    they are -- the government is correct with respect to the
        3    additional probative value with respect to the state of mind of
        4    Mr. Sattar because he was -- there's no evidence with respect
        5    to the other speeches that he was there.  Or had them.  And
        6    Mr. Sattar's state of mind is something that also has to be
        7    proven.
        8             The speeches do contain, each of them -- and I've gone
        9    over them -- similar comments to speeches that have gone on
       10    before, relevant and probative comments, and I'll go over them
       11    again, but I would be inclined to receive them with a limiting
       12    instruction that they're limited to Mr. Sattar and not against
       13    Ms. Stewart or Mr. Yousry.  And I'll look at an appropriate
       14    limiting instruction.  That would be my inclination with
       15    respect to 2040, 2077 and 2079.
       16             MR. TIGAR:  In that case, your Honor, we would renew
       17    orally our motion for severance for Ms. Stewart.  I understand
       18    your Honor will deny it after I've been heard, is likely to,
       19    but I'm going to make it.
       20             THE COURT:  Sure.
       21             MR. TIGAR:  And it is that it is precisely the
       22    similarity, indeed, the identical use of concepts and language,
       23    the material not subject to a limiting instruction and the
       24    material that is subject to a limiting instruction, plus these
       25    Noto-Spocks scales, difficulty of shapes and intent with
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        1    respect to everybody, to capture in capsule form the arguments
        2    I've made previously, that leads us to think that this is a
        3    ground on which to renew the motion for severance.
        4             THE COURT:  Yes.  That's denied.
        5             The admission of these speeches against Mr. Sattar in
        6    no way prejudices Ms. Stewart.  As you put it, they are not
        7    sensational.  They are of a type of evidence that is already
        8    admitted against Ms. Stewart, and properly so.  There's nothing
        9    about the admission of these additional speeches that
       10    prejudices Ms. Stewart or that places the jury in a position
       11    not to be able to carefully consider the evidence subject to
       12    limiting instructions.
       13             Which leads me then to 2065 and 2071, which are the
       14    indictments against Bin Laden and the other defendants.  And
       15    there is an objection from Ms. Stewart and Mr. Yousry on the
       16    grounds of relevance and 403.  Why don't I listen to the
       17    government on that?
       18             MR. BARKOW:  Your Honor, these exhibits are offered to
       19    show Mr. Sattar's knowledge of Osama Bin Laden, which we view
       20    as relevant because of Bin Laden's participation in the
       21    February, '98 fatwa, and the September, 2000 Al-Jazeera
       22    broadcast, and so that is why it is offered, and since that
       23    evidence has been admitted, it's offered to show that
       24    Mr. Sattar knew who Bin Laden was.
       25             And furthermore, the indictment, one of these two
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        1    indictments, was discussed on the telephone between
        2    Ms. Stewart, Mr. Sattar and Yasser Al-Sirri -- may I have just
        3    a moment, your Honor?
        4               (Off the record)
        5             MR. BARKOW:  I need to amend that.  Between Mr. Sattar
        6    and Yasser Al-Sirri.  And one of these indictments was the
        7    subject of discussion between Mr. Sattar and Mr. Al-Sirri.
        8             And furthermore -- and I can't go too far on this one
        9    because I don't have this information exactly at my fingertips
       10    right now -- there is a telephone call with Ms. Stewart, I
       11    believe, where the faxing of an indictment is discussed with
       12    Mr. Sattar, I believe.  And the date of that telephone call I
       13    don't know right now as I stand here today, but the date is
       14    close in time to the filing dates of these two indictments.
       15    So...
       16             But this evidence is offered because it was found in
       17    Mr. Sattar's home, to show his knowledge about Bin Laden.
       18             And one final point -- I'm sorry -- there's actually
       19    also evidence that Mr. Sattar prepared a translation of the
       20    shorter of the two indictments.
       21             MR. TIGAR:  Your Honor, on the day the jurors came in,
       22    your Honor told them for the first time that the indictment is
       23    not evidence of anything; it is simply a way that someone is
       24    brought to court.  Now, however, it is proposed that it is
       25    evidence of Mr. Sattar's knowledge that Mr. Bin Laden was a bad
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        1    guy.  Unless of course the instruction is to be that it's
        2    just -- not for the knowledge that Mr. Bin Laden has been
        3    characterized by the government -- not even by the government,
        4    because, of course, under GAF, the indictment's not the
        5    government's speech -- is a bad guy.
        6             I respectfully suggest, your Honor, first, as to
        7    Ms. Stewart, the fact that she discussed an indictment of an
        8    alleged Arab terrorist is no evidence against her for any
        9    purpose.  And the gossamer distinction the government wants to
       10    have drawn here taxes the ability of jurors.  And my
       11    recollection is that one of the jurors has been on a grand jury
       12    before.  Maybe that juror didn't wind up serving -- it doesn't
       13    matter.
       14             That's the problem.  And it's going to be the problem
       15    again with introducing lawyer argument as evidence of
       16    knowledge.  And for that reason, your Honor, we object to it.
       17             It's also objectionable, as I say, because the Bin
       18    Laden evidence is difficult enough for the defense to deal with
       19    without building a fence around it.
       20             THE COURT:  The parties are welcome to further brief
       21    this for me, but at this point there's an insufficient basis
       22    for the admission of 2065 and 2071.  They are charges.  The
       23    indictment is simply a charge.  And so, having the charges is
       24    knowledge that there are charges out there.
       25             Now, that hasn't been linked to the mental intent,
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        1    state of mind, for the charges at issue in the case, and the
        2    existence of an indictment, which has both of these, which have
        3    broad-ranging charges, which go beyond simply a connection to
        4    the evidence in this case with a connection to Bin Laden, and
        5    all of the other information with respect to Bin Laden, which
        6    is alleged in the indictment, raises at this point a fair
        7    objection on 403 grounds because the relevance of the charges
        8    in the indictment to the specific states of mind at issue would
        9    be outweighed by the danger of unfair prejudice, which is the
       10    jury taking this for purposes for which an indictment should
       11    not be taken.  Even putting to -- which is the legal 403
       12    problem that is at issue with receiving in evidence indictments
       13    in another case which are simply charges.
       14             Now, I said that's my position at this point.  It's
       15    unclear what the evidence of what the defendants themselves
       16    discussed will be.  From what I hear, those discussions may be
       17    sufficient in and of themselves without any extraneous evidence
       18    to explain what it is that's being discussed.
       19             So at this point, there's an insufficient basis for
       20    the admission of 2065 and 2071.
       21             You're welcome, by the way, to give me any cases on
       22    the admissibility of indictments in other cases as notice of
       23    something or a state of mind in a different case.
       24             Which leads me then to 2015A through F, the
       25    government's summation and the rebuttal summation.  Stewart and
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        1    Yousry object on the grounds of relevance, it's attorney
        2    argument, 106.  In Crawford -- I don't see any Crawford issue.
        3             106, I assume is an argument that if we put in yours,
        4    you have to put in ours.
        5             I'm prepared to listen to the parties.  I have a view.
        6             I take it from the government's chart that the
        7    summations are -- well, rather than to -- I'm perfectly happy
        8    to listen to the parties on this.
        9             MR. BARKOW:  Your Honor, I think the Court stopped
       10    itself before it said what our position was, but I think the
       11    Court does understand our position.  I don't have much to say
       12    about these exhibits.  They're offered to show the knowledge of
       13    a listener of what was said.  I don't have much more to say
       14    about the point, and we're willing to hear the Court's view on
       15    this.
       16             THE COURT:  All right.  Defendants want to be heard?
       17             MR. TIGAR:  Would it be helpful to know your Honor's
       18    preliminary views so that -- do you think it would save time?
       19             THE COURT:  I think it would.  I think it would.  At
       20    this point, I would exclude 2015A through F.  They are the
       21    government's summary of the evidence, so they are two steps of
       22    hearsay.  The government's saying what the evidence in the case
       23    showed in order to explain --
       24             MR. BARKOW:  Your Honor, we'll withdraw the offer of
       25    those exhibits at this point.
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        1             THE COURT:  Okay.
        2             MR. BARKOW:  To save the Court time.
        3             THE COURT:  Okay.  That leaves only my -- the limiting
        4    instructions that I would intend to give on the three exhibits,
        5    2040, 2077 and 2079.  And then the question for the government,
        6    which is on 2057 and 2070.  Is there a reason to deal with
        7    those at this point or not?
        8             MR. BARKOW:  Your Honor, all I would say about these
        9    exhibits is I don't think there's anything -- with respect to
       10    these exhibits in particular -- I don't think there's anything
       11    in the calls, for example, which is the bulk of our proof,
       12    that's going to shed more light on these two exhibits.
       13             THE COURT:  Well, the only thing is, the results of
       14    the Stewart and Yousry searches, and what, if any, additional
       15    light that may shed on the admissibility of those two exhibits,
       16    both in terms of admissibility and purposes for which they're
       17    offered; and the parties against whom they're offered, the
       18    purposes for which they could be considered.
       19             So that's the question.  I was -- when I got the
       20    government's letter, I did have a question in my mind as to
       21    when -- and again, these things happen -- but when there was --
       22    in terms of the order of the evidence, when there was no
       23    available evidence for this afternoon, I asked myself,
       24    particularly when I got the government letter, What happened to
       25    the Stewart search?  What happened to the Yousry search?  All
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        1    of which are independent of the telephone calls and the prison
        2    visits.  But the question, immediate question, is whether this
        3    is an issue that should be decided now.  Of course, documents
        4    could be admitted for some purposes and could be admitted for
        5    additional purposes subsequently.
        6             MR. BARKOW:  I guess all I would say with respect to
        7    these two:  The government's position is not going to change
        8    with respect to these two.  We're not going to seek to offer
        9    them for additional reasons or purposes.  2070 and 2057T.
       10    Other than to prove, as we discussed, the Count 2 conspiracy as
       11    a predicate for Counts 4 and 5.  We're not going to be seeking
       12    to offer 2057 and 2070 for more purposes.  So if the Court
       13    wants to wait and see how the other evidence comes in, you
       14    know, obviously that -- that's the Court's province.  We don't
       15    anticipate the government taking additional positions or making
       16    additional arguments on other theories of admissibility with
       17    respect to those two exhibits.
       18             So -- but the Court will see how the Stewart and
       19    Yousry search evidence unfolds.  We tried to pull out some of
       20    the most important exhibits for that in my letter of last
       21    night.  But those searches I can't speak to in too much detail
       22    because I'm not handling those two searches.  But they are not
       23    ready yet to be presented in trial, so....
       24             THE COURT:  That argument surprises me a little
       25    because I would have thought that if one of the purposes of the
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        1    offer of the exhibits is for the state of mind of Mr. Sattar,
        2    certainly one of the purposes, if the same documents were found
        3    in Ms. Stewart's office, an additional purpose would be for the
        4    state of mind of Ms. Stewart.
        5             MR. BARKOW:  Correct, your Honor.  But the documents
        6    aren't identical.  I guess that's the difference.  The
        7    documents that were found in Ms. Stewart's office are in
        8    substance similar, but they're not the identical documents.  So
        9    we wouldn't then say that Ms. Stewart knew about the tape in
       10    Mr. Sattar's residence itself or knew about the contents of the
       11    transcript of that tape.  Because -- and likewise, with respect
       12    to what's found in Ms. Stewart's search or the search of
       13    Ms. Stewart's office, we wouldn't say that the document which
       14    was Attachment A to my letter would have been known by
       15    Mr. Sattar.  But the substance of the different documents is
       16    similar.  But the actual documents are actually distinct.
       17    So....
       18             THE COURT:  Okay.  That helps me.
       19             All right.  Anything else?
       20             MR. TIGAR:  No, your Honor.
       21             THE COURT:  Why don't you -- do you want to pick up
       22    with documents on Monday morning or will you be doing something
       23    else on Monday morning?
       24             MR. MORVILLO:  The government's first witness next
       25    week is going to be Scott Kerns from the FBI who is the witness
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        1    who's currently on his honeymoon and is returning.  We're
        2    hoping to have him fully prepped and ready to go by first thing
        3    Monday morning.  It depends on his jet lag and a variety of
        4    other factors, collecting 3500 material, turning it over
        5    timely.  But we anticipate that he should be in a position to
        6    testify first thing Monday morning.  At the latest -- we think
        7    Monday afternoon.  So we may start Monday morning with some
        8    more documents.
        9             THE COURT:  The remaining documents from today plus
       10    these?
       11             MR. MORVILLO:  Or --
       12             MR. BARKOW:  Yes, your Honor, or some other things
       13    that we're assembling that we're in discussion with counsel
       14    about.
       15             THE COURT:  All right.
       16             MR. TIGAR:  We, of course, will wait to see whether
       17    Mr. Kerns gets back and is available.  It was Mr. Kerns'
       18    unavailability that the government has said makes it unable to
       19    comply with the Court's direction that we get originals or
       20    copies of what's actually on those eight millimeter tapes.  So
       21    we've seen nothing in any of -- in response to any request that
       22    we have made.
       23             We have made additional requests that -- to which the
       24    government has not yet responded, because we asked them first
       25    before we brought anything to the Court.
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                                      (212) 805-0300
        1             THE COURT:  I appreciate that.
        2             MR. TIGAR:  But we, as I say, remain hopeful, and the
        3    only reason I raise that -- it's not to criticize the
        4    government.  I know Mr. Kerns isn't here.  But if he's tendered
        5    to us to cross-examine before we have had a fair opportunity to
        6    review the materials that we think we need, then I can only
        7    signal to the Court and the government that we may ask that the
        8    cross be delayed, adjourned, or however --
        9             MR. BARKOW:  And he would be available.  He's not
       10    going anywhere again.  He is the one who is going to be
       11    hopefully putting together the items responsive to their
       12    requests.  And he works in New York.  So he is not -- when he
       13    gets back, he will be in New York and he will stay in New York.
       14             THE COURT:  Okay.  I should also urge that you -- that
       15    you have alternative plans should there be a request for some
       16    sort of an adjournment after the direct or if there's a need
       17    for additional documents or the like.  Because we really
       18    shouldn't have down time when the jury expects to sit.  And I
       19    had made the point that I thought between agreements and
       20    stipulations and sort of the most efficient way that all of the
       21    initial witnesses were going, that the case was going with, you
       22    know, reasonable expedition --
       23             MR. MORVILLO:  Your Honor, we didn't think, based on
       24    the way things were going, that we would have a problem filling
       25    today.  But with stipulations and less cross-examination of
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                                      (212) 805-0300
        1    some witnesses and faster directs, we were able to eliminate
        2    some time, which left us with this quandary.
        3             I should say, though, with respect to filling other
        4    time, next week, we do have some options.  Because Mr. Kerns is
        5    sort of the gatekeeper with respect to the reportings that
        6    comprise the bulk of the evidence in this case.  And what would
        7    follow Mr. Kerns are the translators who compiled the
        8    transcripts.  And once they testify, we would be in a position
        9    to have a vast majority of our transcript evidence prepared and
       10    ready to read to the jury.
       11             So we were anticipating that that would progress next
       12    week, and that by the middle of the week, we would have
       13    transcripts to read to the jury.
       14             The Yousry search materials and the Stewart search
       15    materials, there are massive amounts of documents in both.
       16    We're trying to coordinate translations of many of the
       17    materials so that it can be presented in an orderly fashion.
       18    Additionally, with respect to the Stewart search materials, as
       19    your Honor knows, there was a wall, and getting the original
       20    documents matched up with the copies that have come over the
       21    wall is logistically difficult, but we're working towards that.
       22    I'm just not sure that we'll be able to throw one of those
       23    search witnesses on to the stand early next week in the event
       24    that there is a delay due to document requests or a request for
       25    a continuation of the cross-examination of Mr. Kerns.  We will
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        1    certainly try to make arrangements for other witnesses to be
        2    available, but there are not that many other witnesses
        3    remaining for the government.
        4             MR. TIGAR:  I am applying what I thought were the
        5    legal principals undergirding the admissibility of the
        6    electronic surveillance evidence July 25th, 2003, including
        7    observations with respect to file retention, file compression,
        8    authenticity, originality and relevance, so I don't expect to
        9    be raising any legal issues that were outside what I briefed
       10    then in a later memorandum in September.
       11             At some point, we will argue to the Court in very
       12    compact form what we think the evidence trail has been.  But I
       13    want to be clear, that's -- those are positions we will take,
       14    and we will seek, of course, the opportunity to develop our
       15    record fully so the government is not -- I don't want them to
       16    say that we misled them somehow as to what we were intending to
       17    do here:  Proof by clear and convincing evidence.
       18             MR. MORVILLO:  Your Honor, I didn't mean to --
       19             THE COURT:  I'm sorry?
       20             MR. MORVILLO:  I said, I didn't mean to imply
       21    otherwise, your Honor.
       22             THE COURT:  All right.  See you all at 9:00 on Monday
       23    morning.
       24               (Adjourned to Monday, July 12, 2004 @ 9:00 a.m.)
       25                                  oOo
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1                          GOVERNMENT EXHIBITS
        2    Exhibit No.                                    Received
        3     2086T-A   . . . . . . . . . . . . . . . . .  3321
        4     2045 and 2045T    . . . . . . . . . . . . .  3322
        5     2044 and 2044T  . . . . . . . . . . . . . .  3331
        6     2047S   . . . . . . . . . . . . . . . . . .  3332
        7     2049S   . . . . . . . . . . . . . . . . . .  3333
        8     2000T   . . . . . . . . . . . . . . . . . .  3333
        9     2058T   . . . . . . . . . . . . . . . . . .  3334
       10     2058T   . . . . . . . . . . . . . . . . . .  3334
       11                                 o 0 o
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300

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