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13 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 21 of the proceeding and Day 12 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/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
3 UNITED STATES OF AMERICA,
3
4 v. S1 02 Cr. 395 (JGK)
4
5 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
6 and MOHAMMED YOUSRY,
6
7 Defendants.
7
8 ------------------------------x
8
9
9 New York, N.Y.
10 July 13, 2004
10 9:15 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
13
13 District Judge
14
15
16
17
18
19
20
21
22
23
24
25
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1 APPEARANCES
1
2 DAVID N. KELLEY
2 United States Attorney for the
3 Southern District of New York
3 ROBIN BAKER
4 CHRISTOPHER MORVILLO
4 ANTHONY BARKOW
5 ANDREW DEMBER
5 Assistant United States Attorneys
6
6 KENNETH A. PAUL
7 BARRY M. FALLICK
7 Attorneys for Defendant Sattar
8
8 MICHAEL TIGAR
9 JILL R. SHELLOW-LAVINE
9 Attorneys for Defendant Stewart
10
10 DAVID STERN
11 DAVID A. RUHNKE
11 Attorneys for Defendant Yousry
12
12
13
14
15
15
16
17
18
19
20
21
22
23
24
25
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated. All
4 right.
5 First, I reviewed the documents and my notes of the
6 direct. I have also considered the colloquy relating to the
7 documents as to which there was an issue and conclude that the
8 documents do not relate to the subject matter of direct. I
9 have sealed a copy of the documents so that they are available
10 for review, and I am returning a set to the government. I
11 don't know if I was provided with the only set or not.
12 So at this point the testimony of the witness is
13 concluded. However, an issue was raised as to whether any call
14 on the trial DVD was in fact one of the calls retrieved by the
15 consultant. The witness did not believe so. The government
16 represented that it covered the issue with the witness. The
17 government should check again with respect to the calls on the
18 documents that I have now sealed, whether any of the calls on
19 the trial DVD are listed as a call reflected in these
20 documents.
21 All right.
22 MR. TIGAR: We would move in the alternative, your
23 Honor, for production of the documents that your Honor has
24 reviewed for Jencks purposes. We could issue a subpoena for
25 them under Rule 17(c). They are evidentiary in character being
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1 business records of the government, which is our belief, at
2 least the chain of custody and other information. They are
3 relevant to the issues now being tried and there does not
4 appear to be any reason within my recollection of the Ouzry
5 standards why they would not be reproducible to us on that
6 ground.
7 THE COURT: All right, Ms. Baker.
8 MR. BAKER: Your Honor, as you just directed, the
9 government will review or ask the witness to review the
10 documents again to see whether the tapes that he took to
11 Minnesota resulted in any of the recordings on the trial DVD.
12 If they do not, I do not see the relevance of the documentation
13 to any issue on trial.
14 THE COURT: I agree with that. You are welcome to
15 issue a subpoena if you wish and argue it out over the
16 subpoena. But based upon everything that I have seen, and my
17 further direction to the government, I don't see the relevance
18 of that with respect to the calls on the trial DVD.
19 MR. TIGAR: Your Honor, we will at the appropriate
20 time issue a subpoena.
21 At some point we are going to argue the applicable
22 Second Circuit law here, or I hope we will. Our request is
23 based on what I understand to be the Tropeano standard about
24 the admissibility issue writ large and not the specific one.
25 But I can't --
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1 THE COURT: Well, here we are now and I actually
2 called you in early to deal with exactly that.
3 Government Exhibit 1000L is in evidence, right?
4 MR. BAKER: Yes, your Honor.
5 THE COURT: All right.
6 The government has now offered Government Exhibits
7 1000 and 1015, and the parties wanted to be heard on that. So
8 the government has offered them and the defendants, I take it,
9 object. So I will listen to arguments.
10 MR. TIGAR: Your Honor, I am sorry, but should the
11 proponent argue first or the opponent?
12 THE COURT: Well, the government --
13 MR. TIGAR: They have the burden.
14 THE COURT: All right, I will listen to the
15 government.
16 MR. BAKER: Your Honor, the government elicited what
17 it believes to be sufficient foundation testimony from Michael
18 Elliott and Scott Kerns and on that basis offers the exhibits.
19 It seems to me that if Mr. Tigar has an objection he should be
20 required, as far as common sense and orderly proceeding, to
21 explain the nature of his objection.
22 THE COURT: Let me ask you one question.
23 MR. BAKER: Sure.
24 THE COURT: I have listened to the testimony. I have
25 considered the testimony. I have considered what was said in
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1 the motion in limine.
2 One of the proffers is that there are telephone
3 records, am I correct?
4 MR. BAKER: Yes.
5 THE COURT: Do the telephone records correspond to
6 each of the calls on the trial DVD?
7 MR. BAKER: Your Honor, we are currently in the
8 process of having a chart prepared that reflects an analysis of
9 the telephone records. I am doubtful that the telephone
10 records will corroborate each call on the trial DVD because,
11 for example, certain calls are placed by calling card and so
12 Mr. Sattar dials a local number for a calling card company but
13 then when he is actually reaching one of the IG leaders in
14 Egypt or wherever it is, the further call goes on through the
15 calling card company and the government has not yet obtained
16 the calling card company records but is seeking to do so.
17 Moreover, many of the calls are incoming calls and, as
18 I am sure your Honor is aware, on hard line, regular
19 telephones. Mr. Sattar's telephone records, which are the
20 primary ones that we have, do not reflect incoming calls. On
21 the other hand, they do reflect that there are not any outgoing
22 calls at the time that the system is intercepting incoming
23 calls but with the following exception: That is, there are
24 occasions when Mr. Sattar receives an incoming call from one IG
25 lead or associate and the telephone records would not reflect
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1 an incoming call but, then, very shortly thereafter, as the
2 recording would indicate, he would turn it into a conference
3 call by placing an outgoing call, either directly or through a
4 calling card, to a third party and the outgoing call is on the
5 telephone records at least as far as calling out to the local
6 number for the calling card company.
7 So the government believes that its analysis, which is
8 still being finished and put into some comprehensible format,
9 will show overall that the recordings coming in as made by the
10 system are accurate based on a significantly statistically very
11 large percentage of the calls, although I cannot say now to
12 your Honor that it's every call that is on the trial DVDs.
13 THE COURT: Okay.
14 Mr. Tigar.
15 MR. TIGAR: Because, your Honor, yesterday you said
16 something tentatively about Second Circuit law and the McKeever
17 case, I want to start with the law, and I will start with the
18 case that Ms. Baker sent you last night, United States v.
19 Knohl. On Mr. Knohl there was one tape recording, three
20 parties to a conversation -- Brodsky, Fuller, Knohl. Two of
21 the three parties were witnesses for the government and said,
22 oh, yeah, that is ours.
23 The only difficulty was that the original tape had
24 been lost by the private person who made it, a person with no
25 duty towards the litigation system to maintain it, but before
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1 that happened the FBI, putting one tape recorder next to
2 another in a familiar old procedure, managed to copy the tape.
3 The discussion of the original writings rule is
4 probably irrelevant because analogue tapes are probably not
5 documents and, in any case, it's superseded by the rule. To
6 the extent the court says that the original writings rule
7 simply ceases to exist at some point, of course that is
8 overruled by the rules.
9 What is interesting about the tape is that no fair
10 question was raised about the reliability of the copying
11 process and the court specifically noted "no contradictory
12 evidence was offered by the defense except what was brought out
13 on cross examination." That is at page 440. We have by
14 contrast sought, now pending 7 or 8 items, and I will get to
15 those, which our experts need in order to evaluate significant
16 gaps in the way in which these digital files, which are
17 original writings, were handled.
18 Now, of course, our problem is complicated by the fact
19 that we all know, because of our daily lives, how computers
20 work. However, the fact that we might all know that does not
21 excuse the government from presenting evidence.
22 As the Ninth Circuit held in United States v. Lewis,
23 833 F.2d 1380, a district judge's personal knowledge of an
24 event is no substitute for the presentation of evidence. That
25 was a case in which Judge Schwartzer found that taking certain
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1 drugs influenced your ability to respond to FBI inquiry.
2 And so now we turn to Judge Kearse's opinion for the
3 Second Circuit in Tropeano. In Tropeano there was no fair
4 question as to the authenticity really of the tapes because the
5 brokers who were -- have I got the right case here?
6 Because I believe Tropeano is the case in which the
7 other parties were actually available to testify. A more
8 recent decision of the Second Circuit, however, that is
9 critical here is United States v. Hamilton, which deals with
10 the admissibility of tape recordings. And that is an opinion
11 by Judge Kearse at 334 F.3d 170 and the part we are looking at
12 begins at 186.
13 Judge Kearse does say that the McKeever test is no
14 longer to be strictly followed. But the only part of it she
15 says you are not to follow is the no-inducement part, which is
16 of course irrelevant to an admissibility decision. In large
17 measure she reaffirms the McKeever test, including the most
18 important part, and this is the only part we really need --
19 clear and convincing evidence.
20 There is no other admissibility decision in the
21 Federal Rules that I know of that requires proof of clear and
22 convincing evidence. And, in any case, in Tropeano and in
23 Hamilton, as in Capanelli, the universe of recordings was
24 relatively small. There was no fair question about copying.
25 In Campanelli there was a digital recording device,
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1 apparently similar to the standard telephone answering machine
2 digital chip. From time to time the FBI would copy information
3 off this digital recording device. Thus, there was no question
4 raised that the copies were copies of digital files that had
5 once existed.
6 THE COURT: Why should the volume of recordings
7 increase the question with respect to the authenticity and
8 reliability -- well, authenticity and accuracy of the
9 recordings? These are telephone records. The cases indicate,
10 among other things, that when the jury considers issues of
11 reliability, the jury looks at what was said in the course of
12 conversations. They see if there is discontinuity. They look
13 at whether there are gaps. They make determinations with
14 respect to such things as whether there is evidence of
15 skullduggery or tampering.
16 Here there is a reasonably large volume of recordings
17 that, if admissible, the jury would hear. The arguments with
18 respect -- and unlike some tape recordings, they receive some
19 support from the telephone records themselves that there were
20 telephone calls going on at this time.
21 The argument, on the contrary, is that for some period
22 of time there are people either impersonating Arabic speakers
23 or interposing or otherwise interfering with the conversations
24 to the degree that they are no longer authentic or accurate.
25 Why does the volume of the conversations count against
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1 the initial determinations of authenticity and accuracy?
2 MR. TIGAR: The importance of volume, your Honor, is
3 only this: That the government had all of these
4 electromagnetic tapes and converted them to MO systems or to MO
5 media. That was a massive copying project. It involved file
6 conversions. We already have experience with one file
7 conversion that the government did in connection with
8 discovery. They goofed it up.
9 And as far as our contention, we are not saying that
10 somebody impersonated an Arabic speaker. I don't know where
11 that concept would come from, your Honor. The question is the
12 integrity of these files. And what I want to show now, having
13 cited the cases, is the factual scenario we have here which is
14 unlike any factual scenario in any case cited by the government
15 or by any party to this proceeding.
16 Each diskette you have, each DVD, your Honor, has
17 multiple files on it. Those are VOC files. Each file is
18 divided into two parts and the evidentiary question must also
19 be divided into two parts. The first is the SRI or
20 signal-related information. You can open any given file on
21 that DVD, a copy of which has been provided to your Honor, with
22 a notepad file. In notepad, a Microsoft Word file, you will
23 read the signal-related information.
24 I took one this morning and looked at it and of course
25 Government Exhibit I think it's 1000N does contain the header
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1 information on the file, a file, that one that I was asking the
2 witness about. If you scroll down to the end of that file you
3 will get the footer information.
4 Looking at the first file on the only diskette, the
5 only DVD that I have this morning with me, which is, if you
6 will give me a moment, 1300, the one not yet offered but it's
7 for illustrative purposes, I looked at the SRI, your Honor, and
8 the SRI there says that the creation time on that file is
9 19860822, 1986. Yet the call time is a 20000321, et cetera,
10 call time.
11 The government has not established that the header and
12 footer information was made and kept in the ordinary course of
13 the FBI's business and that the entries thereon were made at or
14 about the time of the event by a person with personal
15 knowledge. Indeed, the evidence is to the contrary, that the
16 SRI information was transmuted over time by people without
17 personal knowledge as file formats were changed. But now let
18 us go to the contents of the calls themselves.
19 By the way, each and every one of these calls that is
20 offered on a given DVD has this SRI header and footer
21 information, and the answer might be different as to each one.
22 But there has been no foundation. I tried to introduce a
23 document yesterday, no foundation said the government, and the
24 court sustained objection.
25 But let's look at the calls.
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1 The process began in 1995. It began with the
2 telephone company or cellular provider giving its facilities.
3 I guess there was no cellular provider back in 1995. That
4 happened later. There has been zero evidence, by the way, your
5 Honor, about the technical ability of cellular providers to
6 give information. There has been some evidence about telephone
7 company bridging devices which is a pretty simple system. It
8 has been in operation since the 1930s when the Congress for bad
9 wiretapping in the Communications Act of 1934.
10 Then the calls were acquired beginning in 1995. They
11 were put on a Lockheed Martin hard drive. Every single one of
12 those telephone call files has been destroyed. They don't
13 exist. There are no originals with respect to any Lockheed
14 Martin file. The Lockheed Martin system then compressed the
15 files in a 4 to 1 format. We have sought, and a pending order
16 for it for now 13 days, one of the second generation files or
17 more on the electromagnetic tapes, just one or two or three,
18 that we could subject to testing to find out what the
19 compression system was, if we could, and whether it lost data.
20 I don't mean impersonating Arabic speakers, your
21 Honor, I mean lost data. I mean guarantees of reliability. I
22 mean the difference between cat, sat, at, that, and bat. I
23 mean the beginnings and ends of calls. I mean the things that
24 make up a conversation because nobody could remember. And here
25 the relevance of the massiveness of the surveillance is also
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1 important, your Honor. I can't remember all the calls I had 8
2 years ago.
3 The very problem with wiretap evidence, your Honor, is
4 its ubiquity. That is why the Supreme Court in Berger against
5 New York held New York's law unconstitutional. That is why
6 some of us thought that maybe even Title III wouldn't pass
7 muster because it was a general warrant. But, anyway, now we
8 have item 2, the electromagnetic tapes. They are in an unknown
9 format. Those are stored. According to Mr. Kerns nobody
10 checks them, nobody looks at them to make sure that they are
11 being stored in a reliable way.
12 Now, this time period is very important. What goes
13 missing? This is the global authenticity decision. September
14 29 to October 2, '95, everything is gone and yet that was the
15 very time when Mr. Sattar, the paralegal, and Ms. Stewart, the
16 lawyer, would be talking about the legal measures taken to deal
17 with the jury verdict that had just come in, and it's gone --
18 gone.
19 Nobody looks.
20 Now, I am going to skip ahead now. The original
21 writings rules, Rule 1004, tells us what the government has to
22 do -- what the proponent has to do. It says that if the
23 original is not obtainable -- it's a secondary evidence rule --
24 then all originals are lost or have been destroyed unless the
25 proponent lost or destroyed them in bad faith. Right? That is
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1 the rule.
2 What is bad faith? Well, we don't have to go far.
3 Judge Scheindlin has dealt with bad faith, spoliation.
4 Remember, we are not seeking a sanction here. We are dealing
5 with admissibility. And in Zubalake, Judge Scheindlin
6 identified the duty to retain documents as attaching when
7 litigation is anticipated. I mean, that is a common standard
8 and we can cite to your Honor Art Matthew's article about SEC
9 inquiries. That is something with which everybody in this
10 courtroom is familiar.
11 When does the duty attach? Well, the duty attached
12 when they started because they were already litigating. They
13 were already litigating with Sheikh Abdel Rahman, with
14 Mr. Sattar present as paralegal, with Ms. Stewart as counsel.
15 They were already doing it.
16 Litigation became apparent again in a renewed form in
17 1997 when Mr. Fitzgerald either did or did not go to the
18 meeting. The meeting that was called by Ms. Hawk that was
19 testified about was a meeting at the FBI and Ramsey Clark had
20 already filed a lawsuit about the sheikh's prison conditions.
21 There were perceptions of danger from the Sheikh's continued
22 incarceration in the United States and Mr. Fitzgerald's
23 reaction was what? Let's subpoena Ramsey Clark's phone
24 records. That is litigation, your Honor. You can't get phone
25 records without litigation.
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1 So that the prospect of this investigation, all of the
2 money put into servers and documents and FBI agents running
3 around, all of that is going on. Yet, is he here today? No,
4 he is not. Agent DiNapoli -- Mr. Napoli was here. Mr. Napoli
5 is an agent on this case. He was an agent on the sheikh's
6 case, the continuity. Mr. Fitzgerald was the prosecutor there
7 and a witness here.
8 So the faith argument is important and the duty had
9 arisen by the time those electromagnetic tapes were put in a
10 drawer, or wherever they were put, after the original files had
11 been destroyed. Then the government at some point takes those
12 EMTs and writes them to an UNIX platform with an unknown
13 program. Once again, your Honor, in line with the Knohl case
14 where we are not satisfied just to do cross examination, I have
15 asked for the program; that is, I want to know if there is data
16 lost that is involved in the transmutation from the compressed
17 file to a VOC format. We know there has been data lost in
18 other transmutations.
19 And, your Honor, if this were a piece of paper, if I
20 showed up and said, your Honor, I printed out this piece of
21 paper. It's from a file that goes back to '96 in my computer.
22 It's actually been through a compression of an unknown kind. I
23 did destroy the original file. I don't know whether my
24 compression loses today data or not. I don't know where the
25 file has exactly been and, by the way, I changed over from UNIX
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1 to Windows at some point but, your Honor, I have somebody
2 without personal knowledge who says it's okay.
3 I don't think that piece of paper is coming in, your
4 Honor. But this is not the end of that story. They reflated
5 these files into VOC files.
6 Now, I will tell your Honor that there are several
7 different VOC formats. When we received the discovery VOC
8 material there were two such formats in operation. There is a
9 version of VOC on the headers of some of these things. So
10 there may have been other changes. But we do know they were
11 uploaded, changed, and put on MOs. And then your Honor heard
12 the testimony. The MOs were on a hard drive. They were loaded
13 onto servers, back from the servers and back into the hard
14 drive onto DVDs. And in each stage the file was saved.
15 At some point it was changed from an UNIX platform to
16 a Windows platform but no one has testified that conversion
17 from a Windows an UNIX platform is reliable. And 1000L, which
18 is the list of all the things they want to introduce, says date
19 modified as to each file, and those dates are 2004.
20 Your Honor, I ask the court to take judicial notice
21 or, if it's thought to be improper, we can all sit around my
22 computer and I will show you some files on my directory that go
23 back to '96. And every time I open those files if I save them
24 back without changing them Windows will keep the same date and
25 time of my original file and I will know when I created it.
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1 But if I make a change of any kind, I change format, I add
2 something, I take something away, Windows will -- the program I
3 use -- will save it and give it the new date and time in the
4 internal clock of my machine. Nobody has accounted -- nobody.
5 There is complete silence on this evidence about why a file
6 that is purportedly unchanged as to its content should come to
7 court with a file modified date of 3 months ago. There is no
8 explanation for that. None.
9 Now, unlike the Knohl people, we can put a witness on
10 the stand once we get this stuff. And we can explain exactly
11 how that it is.
12 Now, I tried yesterday after agent what's his name,
13 Kerns, said if anybody changed a file they would be fired and
14 prosecuted. So we are supposed to believe that could never
15 happen.
16 Well, your Honor, this is the New York field office.
17 They use rewritable media. They don't have an audit trail.
18 Nobody testified to the existence of any simple system that
19 says now I took the file, now I am using it, now I am putting
20 it back, it hasn't been changed. The evidence, indeed, is to
21 the contrary because we keep having these file-modified dates.
22 Your Honor, that testimony about what would happen to Agent
23 Kerns, who is a very honorable person, no doubt, if he did
24 something wrong is interesting but uninformative. I tried to
25 ask him about that and objections were sustained. That is
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1 fine.
2 Does your Honor recall -- does anybody recall who was
3 head of the technical surveillance unit of the New York field
4 office from '85 to '92? It was a KGB spy, your Honor. His
5 name was Phillip Hanson and he had access to all the files and
6 he sold them to the Soviets. And then he went to Washington
7 and from '99 to 2001 he systematically accessed computer data
8 and sold it to the East Germans. That is the security system
9 in place, your Honor.
10 Unlike Tropeano, unlike Hamilton, unlike Brodsky,
11 where chains of custody and the reliability of each person who
12 handled the data is established, there simply is no burglar
13 alarm in place in the computer system at the FBI.
14 Now, I have dealt here with the Lockheed Martin system
15 but the Raytheon system had its own data failures. We have
16 seen those. We have heard about those. The MOs for that are
17 rewritable. So what do we have, your Honor? The originals are
18 gone. The government refuses to produce any evidence
19 whatever -- zero -- that would permit me to make a substantive
20 showing of file alteration despite the fact that I have
21 repeatedly represented in good faith that I have got experts
22 out there and that I can use this stuff and I need this stuff
23 for the authenticity hearing. And now they want to say, well,
24 I don't have time to produce what the court ordered us to. I
25 just have time to move to put these in evidence right now.
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1 Well, I don't think that is fair. Ultimately, your
2 Honor, I don't think that is fair. And for that reason I
3 suggest that the issue is premature, that the facts do not
4 establish authenticity and that if your Honor believes that a
5 prima facie case has been made, that because of the unique
6 character of the clear and convincing evidence determination I
7 am entitled, as a matter of Rule 104 and due process, to go
8 forward and present the evidence that I would like to present
9 on this issue after the ordered production has taken place.
10 Now, I understand that we are under some time
11 pressures here. Everything I have said this morning, excluding
12 only a few references to the testimony of witnesses, I said on
13 September 25, 2003. And, therefore, it seems, respectfully, to
14 me, and I understand why your Honor ruled as you did about a
15 pretrial hearing, but, you know, one thing about due process is
16 that takes more time than other kinds of processes.
17 And that is our position.
18 THE COURT: All right. Ms. Baker.
19 MR. BAKER: Your Honor asked Mr. Tigar early in his
20 argument why the large volume of files or recordings at issue
21 here should count against admissibility and I would like to
22 start by arguing that actually the large number of files here
23 counts in favor of admissibility.
24 The implicit theme of all of Mr. Tigar's argument is
25 that there was some sort of bad faith, deliberate destruction
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1 of or tampering with evidence here on the part of the FBI,
2 because if that is not what he is implying, if instead what was
3 happening was the FBI was making good faith efforts to maintain
4 the material properly, to maintain it in forms that were
5 essentially duplicates for purposes of the Federal Rules of
6 Evidence or that are otherwise satisfactory under the best
7 evidence rule, then his various points as to spoliation and the
8 fact that certain files may not be retrievable at this point,
9 those points lack the relevance, unless he is using them to try
10 to further some sort of argument that there was bad faith or
11 otherwise less than appropriate care here.
12 And the fact that the total universe of recordings was
13 approximately 85,000 and the fact that the government
14 ultimately seeks to introduce into evidence at this trial
15 something between 150 and 250 files argues in favor of the
16 admissibility because it is simply not conceivable for any type
17 of deliberate tampering to have occurred on such a large scale
18 with such a great number of files, and I would say that
19 particularly in light of the testimony of Agent Kerns
20 yesterday, and, remember, Agent Kerns was the primary person
21 who was responsible for retrieving the relevant files for use
22 at this trial and putting them on the trial DVDs.
23 He testified that with the exception of very few
24 recordings, and in those very few instances not even
25 necessarily the entire recordings, that other than that he had
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1 not listened to the recordings.
2 And he testified that at many of the stages in the
3 process by which the recordings ended up on the DVDs, it wasn't
4 possible to listen to the recordings; that as far as he knew
5 other people involved in the various stages of the process had
6 not listened to the recordings.
7 He also testified that the FBI's New York office
8 doesn't have the technological capability to alter the audio
9 contents of the recordings. So in light of all of those facts
10 and aspects of his testimony, and in particular the fact that
11 he said that even as he sits here today he doesn't know which
12 particular recordings, if any, on the trial DVDs relate to
13 which particular defendants, if any, here on trial, the
14 scenario that there was some sort of intentional destruction,
15 spoliation, tampering, anything along those lines going on
16 here, is simply implausible and belied by all of the evidence.
17 And so the large number of files at issue here is actually a
18 fact in favor of admissibility in this case.
19 Now, to address some of Mr. Tigar's specific points,
20 first of all, Mr. Tigar was questioning or taking issue with
21 the signal-related information in each of the files.
22 Let me start by just correcting a reference that he
23 made. He was citing the printed example of the signal-related
24 information from one of the files that has been received in
25 evidence. I heard his reference as a reference to Government
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1 Exhibit 1000N, which is not correct. It's actually 1001N. And
2 Mr. Tigar indicated or, as I understood it, he was indicating
3 that he thought that that document was only the header, the
4 signal-related information at the top of the file, but then he
5 also made reference to other information at the end of the
6 file, the footer.
7 In fact, Government Exhibit 1001N is a 4-page document
8 that includes both the header and the footer signal-related
9 information from that one particular file. And just to make
10 sure that the court understands and that the record is totally
11 clear, this particular example of the signal-related
12 information is from the very first recording on the trial DVD,
13 which the DVD is marked as Government Exhibit 1000, but that
14 first particular file which is on there is itself marked
15 Government Exhibit 1001 as is set forth on the top line of the
16 list of files where the list itself is Government Exhibit
17 1000L.
18 Mr. Tigar argued that there has been no showing that
19 the signal-related information was business record information
20 and there had been no showing that it was created at the time.
21 That is simply an inaccurate representation of the record. Mr.
22 Elliott specifically testified that as to each of the systems
23 at the very time that the system made the recording it saved
24 the signal-related information which included the date and time
25 of the call and the telephone number on which the call was
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1 recorded. And he testified that that date and time information
2 in each instance came from the internal calendar and clock of
3 each system.
4 So that is information that was created at the time of
5 recording and that has remained associated with each recording
6 throughout its existence, throughout its copying from one
7 medium to another, or in the case of the Lockheed Martin system
8 from one format to another.
9 Indeed, when I asked Mr. Elliott about the conversion
10 process, he specifically explained that as part of the
11 conversion process the conversion software took the Lockheed
12 Martin file in its original proprietary format in which the
13 signal-related information was the first block and the audio
14 content was the second block, and the conversion software
15 separated those two blocks, converted each of those two blocks
16 into the correspondingly appropriate format for the Raytheon
17 VOC file, and then reassembled those two components into the
18 Raytheon VOC format, and that was the conversion process.
19 So the signal-related information was created
20 contemporaneously with the recording, has been there all along,
21 and remained unchanged through the conversion process.
22 Mr. Tigar also commented at one point that there had
23 been zero information presented regarding how interception
24 works regarding cellular telephones. First of all, the
25 government intends to introduce at this trial exactly four
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1 calls that were recorded as the result of a surveillance of
2 cellular telephone. Those are calls that involve Mr. Sattar
3 and an associate of his. They do not involve Ms. Stewart and,
4 in any event, again Mr. Tigar's representation of the record
5 was simply not accurate. Mr. Elliott testified by use of two
6 graphics, and the first graphic showed the traditional
7 telephone intercept methodology which was used in the past, and
8 in some instances is still used with wire-line telephones, and
9 that graphic was marked as Government Exhibit 1307.
10 He then testified that more recently, and particularly
11 in connection with cellular telephones, that there is a
12 switch-based system that is used to bring the telephone data
13 back to the FBI's office and he referred to a second graphic,
14 which is Government Exhibit 1308.
15 Mr. Tigar's primary issues are with the Lockheed
16 Martin system. Really, he has not raised any issue of any
17 substance with regard to the Raytheon system, so let me address
18 the Raytheon system quickly, first, and then I will turn back
19 to the Lockheed Martin system.
20 As to the Raytheon system, the files are originally
21 recorded in the VOC format. That is not a compressed format.
22 The files were recorded originally to the hard drive of the
23 system, archived onto magneto optical disks, and have been in
24 VOC format all along. What I just said was established through
25 Mr. Elliott's testimony and then Agent Kerns' testimony
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1 yesterday made very clear that every step along the way getting
2 from the Raytheon magneto optical disk onto the trial DVD, that
3 it was an exact copy every step of the way.
4 Let me jump ahead to something Mr. Tigar said later,
5 which is there was no evidence that there wasn't any alteration
6 or modification when the files went from an UNIX environment to
7 a Windows environment.
8 I grant that no one gave that testimony in exactly
9 those words. However, my recollection is, and the court can
10 certainly review the transcript, that I asked Agent Kerns at
11 every step of the copying process was the copy that was made
12 from the prior stage to the next stage an exact copy and he
13 said yes. And so that addresses that issue that in that
14 transition from a UNIX computer environment to a Windows
15 computer environment the evidence was not modified.
16 But going back to the Lockheed Martin system, which is
17 the primary system with which Mr. Tigar takes issue, the
18 government expects that today we will be providing to Mr. Tigar
19 on CD or DVD the copies of the Lockheed Martin recordings that
20 the government expects to introduce into evidence at trial in
21 their original proprietary file format. However, the court
22 does not need to wait for an analysis of those files to occur
23 in order to rule on the admissibility of the recordings on the
24 DVDs that the government has now offered for the following
25 reasons: The court can assume arguendo that when the Lockheed
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1 Martin system saved and compressed the recordings from the way
2 they originally came in over the telephone line, the court can
3 assume that data was lost in that compression. To use a word
4 that Mr. Tigar has previously used in argument, that that was
5 lossy compression.
6 Mr. Elliott testified that that compression was at a 4
7 to 1 ratio. Even if it was lossy compression, prior Second
8 Circuit case law analogously makes clear that the fact that
9 certain data was lost between an "original" conversation or
10 original sound that occurred and the recording or version of
11 the sound that the government is seeking to introduce at trial,
12 that that loss does not render the recording inadmissible but,
13 rather, it is a question of weight for the jury.
14 And in support of that I would cite the Knohl case,
15 which I cited in my letter to the court last night, because in
16 that case the recording that the government sought to introduce
17 had been, to use the words of the Second Circuit, filtered to
18 remove certain noise. So, thus, certain data, certain content
19 from what was actually audible when the actual conversation
20 took place had been removed purposefully from the recording
21 that the government sought to introduce into evidence.
22 And that is true in any case in which the government
23 intentionally has an audio file enhanced because as part of an
24 enhancement process there can be filtering to remove background
25 noise and there are various cases, and I don't have others here
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1 in front of me other than Knohl, but there are various cases in
2 which enhanced audio files have been received in evidence
3 notwithstanding that there is essentially purposeful loss of
4 information in those instances.
5 In addition, there are various Second Circuit cases
6 for the proposition that even where portions of recordings are
7 inaudible, meaning something that you could have heard if you
8 were standing there listening to the original conversation or
9 if you were a participant in the original conversation, that
10 that content simply is not available on the recording for
11 whatever reason, that that inaudibility of portions of the
12 conversation does not render the recording inadmissible.
13 And as one example of that line of cases I would cite
14 United States v. Arango-Correa -- which is ARANGO-CORREA --
15 which is reported at 851 F.2d 54, and that is a Second Circuit
16 decision from 1988. And I am referring specifically to pages
17 58 to 59 of that decision where the Second Circuit says, and I
18 am quoting, "The mere fact that some portions of a tape
19 recording are inaudible does not by itself require exclusion of
20 the tape. Unless the unintelligible portions are so
21 substantial as to render the recording as a whole
22 untrustworthy, the recording is admissible and the decision
23 should be left to the sound discretion of the judge."
24 And then there is a citation to various prior
25 decisions and then the court continues, "Our decisions in this
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1 area reveal a clear preference for the admission of recordings
2 notwithstanding some ambiguity or inaudibility as long as the
3 recordings are probative."
4 So those cases show that even where there are some
5 noticeably inaudible portions, recordings can still be admitted
6 and the enhanced tape cases or filtered tape cases show that
7 even where there has been purposeful removal of certain
8 content, that the recordings are still admissible. Here you
9 have facts which are less adverse to admissibility and so the
10 admissibility should be easier, more clear in this case.
11 Because here, even assuming arguendo the worst case
12 scenario, that the 4 to 1 compression done by the Lockheed
13 Martin system was lossy compression, that that was a computer
14 software application removing, according to some algorithm,
15 some amount of content. Mr. Tigar is more expert in this than
16 I but, as I understand it, essentially silence in between
17 speech, certain portions of the very loud portions of the
18 speech, things that would not affect the overall sound of the
19 conversation were it listened to by the human ear.
20 And I would only add as one last point to all of this,
21 the court is free in making this admissibility determination to
22 listen to any of the proffered recordings. There are a few
23 that are in English. Obviously the vast majority of them are
24 in Arabic. It's very clear from the English calls, but we
25 submit even from the Arabic calls were the court to listen to
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1 the recordings, they obviously sound like complete telephone
2 recordings. There is not any way that you can tell in
3 listening to them that any computerized automated process was
4 effected on them that in any way disrupted their content.
5 So although I understand Mr. Tigar has his outstanding
6 request for the original files -- and he will get them today, I
7 believe -- again, we submit that that is an issue that goes to
8 the weight of the jury. He can explore that at whatever length
9 he chooses in his case, but it should not be a deterrent to the
10 admission of the recordings into evidence at this time.
11 He later made some points relating to the nonexistence
12 of certain files. Obviously the nonexistence of certain other
13 files doesn't bear on the direct question of whether the files
14 that the government is offering have been sufficiently
15 authenticated.
16 The court has already ruled that the FBI's inability
17 to retrieve certain files should not result in the suppression
18 of all of the evidence. That was the outcome of the litigation
19 last year. And there is just not any articulable reason why
20 that issue should bear on the admissibility of these particular
21 recordings as opposed to being just an issue that Mr. Tigar can
22 argue to the jury later for whatever weight he thinks the jury
23 should give it in their overall consideration of the evidence
24 that the government has presented against his client.
25 Finally, one of his last points was what shows on
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1 Government Exhibit 1000L as the "last modified date" of each of
2 the files of the trial DVD.
3 Agent Kerns was very explicit in his testimony
4 yesterday that each step in the copying process resulted in an
5 exact copy being made; that he did not do anything to in any
6 way modify either the signal-related information or the audio
7 content of any of the files, nor to his knowledge, and within
8 what he saw happening, had anyone else done that and that he
9 believed that there would be very very severe consequences to
10 him or to anyone else were they to do anything like that.
11 The fact that he was not able to explain to Mr.
12 Tigar's satisfaction in words that Mr. Tigar would find
13 desirable the exact origin of that particular modified date is,
14 the government respectfully submits, outweighed by the clear
15 and unequivocal nature of his other testimony that the copying
16 at each stage was exact and that there was, in fact, no
17 modification.
18 So overall the government submits that through the
19 testimony of the two witnesses the authenticity of the files
20 has been established by clear and convincing evidence and that
21 under the Second Circuit and Southern District decisions in
22 Tropeano, in Knohl, in Campanelli, that all of the other issues
23 raised by Mr. Tigar are issues that bear on the weight to be
24 accorded to the recordings by the jury and that Mr. Tigar can
25 explore those issues to whatever extent he chooses in his case.
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1 THE COURT: All right.
2 MR. TIGAR: One, in the government's letter to the
3 court of July 10, at page 5, the government said that SRI was
4 entered into the system by agents. The only thing that was
5 entered by others was the date and time based on the internal
6 clock of the computer.
7 Now, therefore, all SRI, other than that, was done by
8 human beings. Then the SRI we have now reflects a VOC file but
9 it wasn't in VOC originally so it had to have been changed.
10 But significantly, your Honor, if the government relies on the
11 computer's internal clock and says that we must all be governed
12 by the internal clocks of all the computers, then none of this
13 evidence comes in because it was all created in 2004.
14 Second, a minor point, with respect to the cellular
15 calls in 1308 -- I have 1308 and it doesn't have anything to do
16 with cellular telephones, your Honor. It has a picture of it
17 houses with regular telephones in them.
18 Now to the main point.
19 Inaudibility doesn't destroy admissibility; that is,
20 if you record somebody's conversations over a long period of
21 time their inaudible words in an otherwise good recording
22 system because people spoke low or whatever, those cases have
23 nothing to do with this. The kinds of enhancement of which Ms.
24 Baker speaks, that is that old-fashioned business of using
25 filters to cut things out.
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1 We are talking, your Honor, about the digital age.
2 And, no, your Honor, I am not saying that someone snuck into
3 the FBI at night because it's not my burden to say it. The
4 purpose of rules of evidence, your Honor, is to exclude what
5 might turn out to be reliable evidence because the proponent
6 cannot meet certain standards that are designed to guarantee
7 the integrity of the system. And the key point of integrity
8 here is that when this surveillance began in 1995 everybody
9 knew what the stakes were in terms of human liberty. And they
10 adopted and maintained and kept, even for 2 years when they
11 wanted to phase out Lockheed Martin, a system that they knew
12 destroyed original files and placed them into a format where
13 despite the government's information, if I get them today,
14 neither you, your Honor, nor I, nor anyone, could plug them in
15 and play them without software manipulation. That is the
16 problem. And they don't have any cases that say that that
17 happens, your Honor. This is a first.
18 THE COURT: All right.
19 Anything further?
20 MR. BAKER: Your Honor, just on Mr. Tigar's last
21 point, the government submits that the Capanelli case squarely
22 addresses the issue of when you have something in the format
23 now which is not the same as the original format, because in
24 the Capanelli case the originals were digital chip recordings
25 and those recordings had been run through certain software to
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1 transform them into CDs or put them on audio tapes and the
2 original digital chips were no longer in existence.
3 THE COURT: All right.
4 I am prepared to rule.
5 It is well established in the Second Circuit that when
6 the government seeks to introduce tape recordings into
7 evidence, the government must "produce clear and convincing
8 evidence of authenticity and accuracy as a foundation for the
9 admission of such recordings." United States against
10 Hamilton, 334 F.3d 170, 187 (2d Cir. 2003).
11 In adopting this general standard, the Court of
12 Appeals has "expressly and repeatedly declined to adopt" the
13 "formal, 7-factor approach in the admission of audio recordings
14 as enunciated in United States against McKeever, 169 F.Supp.
15 426, 430 (Southern District of New York 1958), reversed on
16 other grounds, 271 F.2d 669 (2d Cir. 1959)" id. Therefore, "a
17 tape recording may be admitted in evidence when it has been
18 properly authenticated by evidence sufficient to support a
19 finding that the matter in question is what its proponent
20 claims." Id; see also Federal Rule of Evidence 901(a). The
21 district court has "broad discretion" in determining the
22 authenticity of tape recordings, as with other pieces of
23 evidence. United States against Tropeano, 252 F.3d 653, 661
24 (2d Cir. 2001).
25 The government can establish the authenticity and
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1 accuracy of tape recordings in a number of ways. See Federal
2 Rule of Evidence 901(b), (setting for the the non-exhaustive
3 list of methods for authenticating evidence). The government
4 could, for example, establish the authenticity and accuracy of
5 tape recordings by proving a chain of custody. See United
6 States against Fuentes, 563 F.2d 527, 532 (2d Cir. 1977). But
7 proving an unbroken chain of custody of proffered tapes is not
8 required, because "breaks in the chain of custody do not bear
9 upon the admissibility of evidence, only the weight of the
10 evidence." United States against Morrison, 153 F.3d 34 (2d
11 Cir. 1998). "Once a relevant tape recording has been
12 sufficiently authenticated, any question as to the veracity of
13 recorded statements and the credibility of speakers goes to the
14 evidence's weight rather than to admissibility." Hamilton, 334
15 F.3d 186 to 87. Allegations that tapes have been tampered
16 with, for example, go to weight rather than admissibility. See
17 United States v. Sovie, 122 F.3d, 122, 127 to 28 (2d Cir.
18 1997); Fuentes, 563 F.2d at 532 (noting that attempts to change
19 "the character of of a running conversation" will likely be
20 obvious "to anyone listening to the tapes." See also Morrison,
21 153 F.3d at 56 "The contents of the conversations on the
22 challenged tapes are coherent and fall logically, making it
23 improbable that any material was deleted or added." Similarly,
24 the fact that portions of tapes are inaudible or altogether
25 missing does not render the tape inadmissible. See United
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1 States against Knohl, 379 F.2d 427, 440 (2d Cir. 1967). In
2 Knohl, the Court of Appeals observed that the admissibility of
3 tape recordings was not implicated by the defendant's
4 complaints about "large scale skullduggery on the part of the
5 government's witnesses in altering the tapes," or by complaints
6 "that the copy was defective because background noises were
7 filtered out without determining whether or not at the same
8 time low-pitched voices were removed and that portions of the
9 recording were missing." Id. See also Sovie, 122 F.3d at 127;
10 United States against Carbone, 798 F.2d 21, 24 (1st Cir. 1986).
11 Likewise, issues concerning "complications that might arise
12 from modern recording and reproducing technology" go to the
13 weight and reliability of the recordings and are ultimately
14 issues for the jury. United States against Capanelli, 257
15 F.Supp. 2s 678, 681 (Southern District of New York, 2003).
16 In this case the authenticity and accuracy of the
17 recordings is established by the testimony of Agent Kerns and
18 Mr. Elliott. The government also proffers that the telephone
19 records will support the existence of at least some of the
20 calls.
21 The jury will have the opportunity to listen to the
22 conversation and make the kinds of judgments with respect to
23 reliability that the Court of Appeals has instructed are for
24 the jury. Applying the standards explained by the Court of
25 Appeals, the government has demonstrated by clear and
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1 convincing evidence that Government exhibits 1000 and 1015 are
2 duplicate originals of recordings and the recordings are
3 authentic and accurate recordings of the telephone
4 conversations of which they purport to be.
5 The objections by the defendants at this point,
6 including arguments over the chain of custody, the compression
7 process and alleged gaps go to weight rather than
8 admissibility. Similarly, the signal-related information has
9 been sufficiently authenticated to be admitted. While the
10 recordings have been sufficiently authenticated to be admitted,
11 the substance of the calls remains open to objections.
12 The government has offered the audio portion of the
13 calls only to the extent that they correspond to the trial
14 transcripts. Whether there are objections to the content of
15 the calls and whether there are Rule 106 objections are matters
16 that have not yet been raised or decided.
17 The government has made the showing required for
18 admissibility as explained. The defendants seek to offer their
19 own expert testimony with respect to the tapes. The defendants
20 of course can introduce expert testimony in the course of their
21 case if they choose to do so, but the government has made a
22 sufficient showing in the course of its own case.
23 So ordered.
24 MR. TIGAR: Your Honor, may we then have a direction
25 to the government to comply promptly with the outstanding
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1 request so that we can prepare our experts?
2 THE COURT: Oh, I ruled on all of those Monday,
3 yesterday. And the government said that it was doing that
4 promptly.
5 MR. TIGAR: All right. I understand and accept that
6 and we will keep after it.
7 Second, under the Knohl case at page 440, the court
8 suggests that where there is a question, where the evidence is
9 conflicting on the admissibility decision, that the court
10 should give a limiting instruction to caution the jury to
11 scrutinize the evidence with care. Such a limiting instruction
12 might be in the form of the standard and former perjurer
13 instruction that issues have been and will continue to be
14 raised with respect to these recordings and the court says that
15 the issue of their reliability is for the jurors and that they
16 are to be received with caution and weighed with great care.
17 THE COURT: I will --
18 MR. TIGAR: "Received with caution" is not in the
19 Knohl case, your Honor.
20 THE COURT: I will take any proposed instructions from
21 either side. I see in the cases that the instructions are
22 given during trial as well as in final instructions. So both
23 sides can submit to me before any of the tapes are played any
24 appropriate instructions for the jury. And you should do that
25 today.
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1 All right.
2 MR. BAKER: Your Honor, in light of that may I ask to
3 be excused? We expect to begin later today playing some of the
4 recordings and so I will leave my colleagues here and go look
5 into that issue.
6 THE COURT: Okay.
7 Does the defense have a proposed instruction for me or
8 just ask me to look at Knohl, which I have here?
9 MR. TIGAR: Actually, your Honor, what I said in the
10 transcript a few minutes ago was what we would think was a good
11 instruction. If it's easier for the court, can we inquire of
12 the government through the court when they are going to play
13 the first tape?
14 MR. BAKER: We believe it will be sometime later
15 today. It's not entirely clear to us how long it will take to
16 present the testimony of the two witnesses through whom most of
17 the transcripts will be admitted into evidence, but I believe
18 our plan is to present the testimony of those witnesses
19 first -- to present the testimony of those witnesses first
20 before turning to the actual presentation of any of the calls.
21 MR. TIGAR: The only reason I ask, your Honor, is if
22 there is going to be a break in between I can write something
23 out and hand it to your Honor.
24 THE COURT: I can get it from the transcript if you
25 want me to look at your transcript in the Knohl case. That is
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1 fine. I will do that.
2 MR. TIGAR: Thank you.
3 THE COURT: All right, anything else before we call in
4 the jury?
5 Do you want to take 5 minutes before we call in the
6 jury?
7 MR. BARKOW: Yes, your Honor.
8 (Recess)
9 (In open court; jury not present)
10 THE COURT: Be seated all.
11 Let's bring in the jury.
12 Is everyone ready for the jury?
13 MR. PAUL: Yes, your Honor.
14 MR. TIGAR: Yes, your Honor.
15 THE COURT: Bring in the jury.
16 MR. MORVILLO: Your Honor, the first two witnesses
17 today will be language specialists from the FBI who will be
18 testifying about transcripts that they prepared. We have for
19 the court, and handed out to defense counsel, lists to the
20 transcripts that correspond to the two language specialists.
21 We are not introducing them into evidence but for the court's
22 record keeping I would like to hand them up.
23 THE COURT: All right.
24 Subject to the limitations that I have already
25 indicated, Government Exhibits 1000 and 1015 are received in
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1 evidence.
2 (Government's Exhibits 1000 and 1015 received in
3 evidence)
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 THE COURT: Good morning, ladies and gentlemen. It's
7 good to see you all.
8 Obviously we are beginning a little later and I
9 appreciate your indulgence. I will find other ways of
10 accommodating you so you don't have to wait when you come in in
11 the morning, whether it's anticipating issues and bringing you
12 in a little later or bringing everyone else in even earlier or
13 working later or doing it on days when you are not here because
14 I really want to use your time as best I can.
15 So I appreciate your indulgence and I appreciate your
16 being here.
17 The government may call its next witness.
18 MR. BARKOW: Thank you, your Honor.
19 Your Honor, the government calls Ms. Nabila Banout.
20 THE COURT: All right, Mr. Barkow, you may examine.
21 NABILA BANOUT,
22 called as a witness by the Government,
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
24
25 BY MR. BARKOW:
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1 Q. Good morning, Ms. Banout.
2 Can you please when you speak make sure you pull the
3 microphone -- and you can do it now -- pull it close to you and
4 speak right into it because the acoustics in the courtroom
5 makes it hard to hear, okay?
6 A. Sure.
7 Q. Ms. Banout, where do you work?
8 A. I work for the FBI.
9 Q. What do you do for the FBI?
10 A. Translate.
11 Q. And do you have a title or position there?
12 A. I am a language specialist.
13 Q. What does it mean to be a language specialist?
14 A. It means you translate from foreign language into English
15 for non-Arabic speakers.
16 Q. And so do you work with any particular languages?
17 A. Arabic.
18 Q. And you translate that Arabic into English?
19 A. Yes.
20 Q. And what kinds of sources are you translating from Arabic
21 into English?
22 A. Audio material and documents.
23 Q. Now, how often do you do that?
24 A. All day, 8 hours.
25 Q. And how many days a week?
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47DSSAT1 Banout - direct
1 A. Five.
2 Q. How long have you been a translator or a language
3 specialist with the FBI?
4 A. 24 years.
5 Q. And have all those years been working with Arabic language
6 materials and translating them into English?
7 A. Yes.
8 Q. Do you also do some translation from English into Arabic?
9 A. Yes.
10 Q. Now, Ms. Banout, where were you born?
11 A. In Egypt.
12 Q. And how long did you live in Egypt?
13 A. 25, 26 years.
14 Q. Approximately when did you leave Egypt?
15 A. 1969.
16 Q. And to where did you go or where did you come when you left
17 Egypt?
18 A. I came to New York.
19 Q. And have you been here ever since?
20 A. Yes.
21 Q. Now, what is your native language?
22 A. Arabic.
23 Q. Are you fluent in Arabic?
24 A. Yes.
25 Q. And when did you first learn Arabic?
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47DSSAT1 Banout - direct
1 A. In school in Egypt.
2 Q. And is that the language, Arabic, that you spoke growing up
3 in Egypt?
4 A. Yes.
5 Q. Are you fluent in English?
6 A. Yes.
7 Q. And when did you first learn English?
8 A. Starting in my elementary school.
9 Q. And that is when you were a small child?
10 A. Yes.
11 Q. And have you been speaking and using English ever since?
12 A. Yes.
13 Q. What language or languages do you use now in your daily
14 life?
15 A. Both English and Arabic.
16 Q. Ms. Banout, I want to ask you some questions about your
17 educational background, okay?
18 A. Please.
19 Q. First, let's start in Egypt. You already mentioned you
20 went to grade school. After you finished grade school, did you
21 go to high school?
22 A. Yes.
23 Q. And did you have any kind of major or focus or
24 concentration in your studies in high school?
25 A. I majored in English literature.
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47DSSAT1 Banout - direct
1 Q. And in what language was your education in high school
2 conducted?
3 A. Arabic.
4 Q. And you were majoring in English literature also?
5 A. Yes.
6 Q. Did you then go on to a college or university?
7 A. Yes, I started in the Faculty of Arts, Cairo University.
8 Q. That is in Cairo, Egypt?
9 A. Yes.
10 Q. And what did you study at Cairo University in Cairo?
11 A. English literature.
12 Q. And what what language or languages was your education
13 conducted at Cairo University?
14 A. English.
15 Q. Did you receive a degree?
16 A. BA.
17 Q. That is a Bachelors of art?
18 A. Yes.
19 Q. Approximately what year did you get that degree?
20 A. If I remember right, maybe '61, '62.
21 Q. Now, have you received any additional education in the
22 United States?
23 A. Yes.
24 Q. What kind of education?
25 A. I got an MA degree majoring in sociology.
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47DSSAT1 Banout - direct
1 Q. That is a Masters of arts degree?
2 A. Yes.
3 Q. From where did you get that?
4 A. Jersey City State College.
5 Q. Approximately what year?
6 A. '71-'72.
7 Q. And besides the Masters degree in sociology, do you have
8 any other education you received in the United States?
9 A. I earned 15 extra credits in the Masters of education.
10 Q. And toward what end?
11 A. This is to get my teaching license.
12 Q. Do you have a teaching license?
13 A. Yes.
14 Q. And what does that teaching license license you to teach?
15 A. High school social studies.
16 Q. Now, prior to your work at the FBI over the last 24, 25
17 years or so, did you actually teach somewhere?
18 A. I taught in the Jersey City school system.
19 Q. What did you teach?
20 A. English as a second language.
21 Q. Did you also teach prior to that?
22 A. No. In Egypt, yes, not here.
23 Q. What did you teach in Egypt?
24 A. I taught English also.
25 Q. And what level?
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47DSSAT1 Banout - direct
1 A. High school level.
2 Q. And have you received any special training or education or
3 classes in the field of translation?
4 A. That was part of my BA degree. I studied translation from
5 Arabic into English and English into Arabic for four semesters
6 before I graduated.
7 Q. And that was at Cairo University?
8 A. Yes.
9 Q. Now, at the FBI, what is your experience or seniority
10 level?
11 A. Well, I have been doing this job for 24 years translating a
12 variety of material in slang language and in the official
13 language, and this is all I can say about my experience.
14 Q. And is there any kind of title or description of your
15 experience level within the FBI with respect to the type of
16 translator you are?
17 A. As a language specialist I just master the ability of
18 translating English into Arabic and Arabic into English.
19 Q. And have you received promotions while at the FBI?
20 A. Yes.
21 Q. And how many times approximately?
22 A. I started at a grade level 9 and now I am grade level 13.
23 Q. And when you received these promotions, do you have to
24 take, and pass, any tests?
25 A. Yes.
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47DSSAT1 Banout - direct
1 Q. And what is the general subject matter of those tests?
2 A. We are tested at different levels that qualify you to earn
3 the promotion to the other higher level.
4 Q. And are these tests testing your translation skills?
5 A. Yes.
6 MR. BARKOW: Your Honor, at this point the government
7 offers Ms. Banout as an expert in the translation of Arabic
8 into English.
9 THE COURT: All right. I will allow the witness to
10 testify.
11 MR. BARKOW: May I proceed, your Honor?
12 THE COURT: Yes.
13 Q. Ms. Banout, are there different Arabic dialects?
14 A. Yes.
15 Q. And can you explain in general terms what a dialect is?
16 A. A dialect can be simply explained as a manner of speech,
17 the way people talk, and it depends, like each region has its
18 own dialect.
19 Q. And using English as an example, can you explain what a
20 dialect is?
21 A. It's the way a New Yorker would speak versus a speaker in
22 Texas.
23 Q. So just to be clear, the person in New York and the person
24 in Texas would both be speaking English?
25 A. They will both be speaking English but each one with a
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47DSSAT1 Banout - direct
1 different way of speech.
2 Q. An accent essentially?
3 A. This is what we call accent, yes.
4 Q. And you are saying that is the same as a dialect?
5 A. Yes.
6 Q. Okay.
7 Now, in Egyptian Arabic, how many different dialects
8 or accents are there?
9 A. Well, in Egypt alone there is a dialect spoken in the
10 coastal area, like in Alexandria and the coast. There is a
11 different way of speech for the Delta and Cairo, and Upper
12 Egypt, the south, they speak a different dialect.
13 Q. Just to be clear, you just referred to the south as Upper
14 Egypt.
15 A. Exactly.
16 Q. That is correct?
17 A. Correct.
18 Q. And so the north, even though it's above, it's called Lower
19 Egypt?
20 A. It's called Lower Egypt because the Nile runs down.
21 Q. Now, which of these dialects do you understand when spoken?
22 A. I understand them very well.
23 Q. All of them or just some of them?
24 A. All of them.
25 Q. Now, Ms. Banout, have you done translation work in
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47DSSAT1 Banout - direct
1 connection with this case?
2 A. Yes.
3 Q. And when did that start approximately? What year?
4 A. About '97.
5 Q. And what kind of work in general terms were you doing in
6 connection with this case starting in 1997 or so?
7 A. Translating audio material and documents.
8 Q. And that was from Arabic into English?
9 A. Yes.
10 Q. And about how much of your time each day and each week did
11 you spend doing that for this case?
12 A. At the beginning it was 50 percent of my time but the last
13 couple of years I have been doing this 100 percent of my time.
14 Q. And could you describe generally at the earlier stages what
15 your work entailed, what you did in a regular day?
16 A. I listened to calls and then I entered them on the computer
17 in English. I listen in Arabic and I type in English.
18 Q. And when you typed them in English at these earlier stages,
19 were you translating them verbatim -- that is, word for word --
20 or summarizing?
21 A. Summarizing in most of the cases. But some of them were
22 requiring verbatim translation, which I did.
23 Q. And these calls, how close in time to the time the call was
24 made were you listening to them?
25 A. The following day.
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47DSSAT1 Banout - direct
1 Q. And what kind of equipment were you using generally to
2 listen to them?
3 A. The computer.
4 Q. And the calls were stored or you accessed the calls through
5 your computer?
6 A. Yes.
7 Q. Approximately how many calls a day would you listen to?
8 A. I would say an average 15, 20 for one line.
9 Q. I am sorry?
10 A. For each line. It would be approximately 15 to 20 calls a
11 day.
12 Q. And who was the primary participant in these calls?
13 A. The owner of the line.
14 Q. Who was that?
15 A. Ahmed Abdel Sattar.
16 Q. Now, did you also create transcripts specifically for use
17 at this trial?
18 A. Yes.
19 Q. And that is different work than what you have just been
20 describing, right?
21 A. The transcripts are different, like the origin of a
22 transcript would be a document that I received.
23 Q. Now, over what time were you doing this work preparing
24 transcripts for trial? Over what time period have you been
25 doing that?
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47DSSAT1 Banout - direct
1 A. The entire time.
2 Q. About when did you start doing it?
3 A. When I started translating for the case.
4 Q. And when you were specifically working on the transcripts
5 for trial about how much of your time from day-to-day was
6 devoted to doing that?
7 A. 100 percent.
8 Q. How many days a week?
9 A. Five days a week.
10 Q. And what was the source of the sound or the audio that you
11 were using to make the transcripts for trial?
12 A. The phone calls.
13 Q. And where were those phone calls stored?
14 A. On the computer.
15 Q. When you were making them specifically for the trial, what
16 were you using? Were you using any kind of device?
17 A. We had them on DVDs after that.
18 Q. And so these DVDs that you were using, that is what you
19 used to make the trial transcripts?
20 A. Yes.
21 Q. And is that a separate place or the same place as the calls
22 you were working on from day-to-day way back in '97?
23 A. No, separate.
24 MR. BARKOW: May I approach, your Honor?
25 THE COURT: Yes.
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47DSSAT1 Banout - direct
1 Q. Ms. Banout, actually before I go further I just want to ask
2 you one question for clarification.
3 Either I or you or both of us used the word verbatim
4 in connection to translations.
5 A. Yes.
6 Q. What does that mean?
7 A. A verbatim transcript is a thorough, word-for-word account
8 of each single word heard. That is verbatim.
9 Q. Now, Ms. Banout, I have just placed before you a pile of
10 paper. Could you please take a look through that, those
11 exhibits, and look up when you are done.
12 A. Yes.
13 MR. BARKOW: For the record, while the witness is
14 looking through the pile I would like to state for
15 identification purposes what exhibits I have put before the
16 witness. That is, I have placed before the witness Government
17 Exhibits marked for identification and provided to counsel
18 1001T, 1002T, 1009T, 1010T, 1011T, 1012T, 1016T, 1017T, 1022T,
19 1023T, 1025T, 1027T, 1028T, 1029T, 1030T, 1032T, 1033T, 1035T,
20 1044T, 1046T, 1047T, 1049T, 1051T, 1054T, 1060T, 1061T, 1062T,
21 1067T, 1092T, 1093T, 1099T, 1102T, 1104T, 1120T, 1121T, 1122T,
22 1123T, 1124T, 1125T, 1126T, 1127T, 1128T, 1129T, 1130T, 1131T,
23 1132T, 1133T, 1134T, 1135T, 1148T, 1153T, 1155T, 1162T, 1163T,
24 1165T, 1166T, 1167T, 1169T, 1179T, 1180T, 1181T, 1183T, 1184T,
25 1188T, 1189T, 1192T, 1194T, 1199T, 1200T, 1205T, 1212T, 1214T,
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47DSSAT1 Banout - direct
1 1217T, 1226T, 1228T, and, finally, 1229T.
2 A. Thank you for your patience, yes.
3 I did them all.
4 Q. Okay.
5 Ms. Banout, you have now looked through each of the
6 pages that I have placed before you?
7 A. Yes.
8 Q. Do you recognize those exhibits that I have placed before
9 you?
10 A. Yes.
11 Q. What are they?
12 A. They are transcripts of the calls that I translated.
13 Q. How are you able to recognize those documents as the
14 transcripts of the calls that you created?
15 A. I initialed and signed each single page.
16 Q. Now, Ms. Banout, when you made these transcripts which
17 contain your translations, where were the calls stored that you
18 were listening to?
19 A. On the DVD.
20 Q. And from whom did you obtain this DVD? Who gave it to you?
21 A. Agent Kerns, Scott Kerns.
22 Q. And you used the DVD then to listen to the calls and make
23 these transcripts?
24 A. I translated them off the computer but I reviewed them on
25 the DVD.
SOUTHERN DISTRICT REPORTERS, P.C.
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47DSSAT1 Banout - direct
1 Q. But the calls were stored on the DVD?
2 A. Yes.
3 Q. And did the files on the DVD have file names?
4 A. Yes.
5 Q. And what kind of information was contained in the file
6 name?
7 A. The file name has the date, the time, and the line number
8 where this call occurred.
9 Q. When you say "the line number," what do you mean?
10 A. Line, for instance, like area code such and such.
11 Q. The telephone number?
12 A. The telephone number, yes.
13 Q. And did these calls contain Arabic conversations?
14 A. Yes.
15 Q. Did they also contain some English conversation?
16 A. Yes.
17 Q. Now, when you were done listening to the calls on the DVD,
18 what did you do with the DVD?
19 A. I gave it back to Scott Kerns. I signed it and gave it
20 back to him.
21 Q. You signed what?
22 A. The DVD.
23 Q. And when you did that was Scott Kerns present?
24 A. Yes. I signed it and I dated it in his presence.
25 Q. Now, this transcript, these set of government exhibits I
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47DSSAT1 Banout - direct
1 have placed before you, do they also each contain a number
2 containing similar information to the numbers in the file names
3 on the DVD?
4 A. Yes.
5 Q. And do these numbers on the transcripts before you, do they
6 correspond with the file names on the DVD?
7 A. Yes.
8 Q. That is, are these transcripts translations of the
9 corresponding calls on the DVD?
10 A. Yes.
11 Q. And are all the transcripts sitting before you that you
12 have just reviewed true and accurate translations from Arabic
13 into English of the corresponding calls on the DVD that you
14 listen to and returned to Scott Kerns?
15 A. Yes.
16 Q. Is the translation work on those transcripts done truly,
17 accurately, and correctly?
18 A. To the best of my ability, yes.
19 Q. And when -- you can leave them sitting there.
20 When you were doing this work, what was your primary
21 focus? Was it translating Arabic into English or transcribing
22 English?
23 A. Translating Arabic into English.
24 Q. Did you also transcribe English when it was in the same
25 call as one that had Arabic talking as well?
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47DSSAT1 Banout - direct
1 A. Yes.
2 Q. And was that done to the best of your ability?
3 A. Yes.
4 Q. Now, Ms. Banout, I want to ask you some questions about the
5 format of these transcripts and I would like, if I could, to
6 place before the witness and counsel what I have marked for
7 identification as Government Exhibit 407.
8 Ms. Banout, I am showing you what I have marked for
9 identification as Government Exhibit 407. Would this document
10 help you explain the headers and the format of the transcripts
11 that you generated?
12 A. Yes.
13 MR. BARKOW: Your Honor, at this point the government
14 offers Government Exhibit 407 as a demonstrative.
15 MR. RUHNKE: No objection.
16 MS. SHELLOW-LAVINE: No objection.
17 THE COURT: All right, Government Exhibit 407 received
18 in evidence as a demonstrative aid to the witness' testimony.
19 (Government's Exhibit 407 received in evidence)
20 MR. BARKOW: May we publish it to the jury, your
21 Honor?
22 THE COURT: Yes.
23 Q. Ms. Banout, in front of you on your screen and on the big
24 screen you have Government Exhibit 407. I am going to ask you
25 what some of this information is.
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47DSSAT1 Banout - direct
1 The first call, the format that you see in government
2 407, is that the same format that is at the top of each one of
3 the transcripts that you have in front of you?
4 A. Yes, it is.
5 Q. Okay.
6 Now, do you see on the very top where it has the
7 number on this document 98121216.13, what is that?
8 A. This is the number given to each document showing '98 is
9 the year. 12 is the month. 12 is the date, the day. 16 like
10 is the hour. .13 is the minutes.
11 Q. Is that the number that I previously have been asking you
12 about whether it corresponds with the file names on the DVD?
13 A. Yes, it is.
14 Q. Now, do you see the very top line here where it says
15 monitor number?
16 A. That is my number.
17 Q. Which number is your number?
18 A. 4.
19 Q. Okay. And so what is the purpose of that number appearing
20 on this demonstrative and other transcripts?
21 A. That is the number of the person who did the translation.
22 My number is number 4.
23 Q. So if number 4 appears on a transcript it's yours?
24 A. Yes.
25 Q. And the next line, line ID, what does that line show?
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47DSSAT1 Banout - direct
1 A. That is the telephone line of which this incoming call will
2 be given.
3 Q. And what about "session start" and "session end"?
4 A. The session start has the date 12/12/1998 as it shows on
5 top, the year '98, month 12 and day 12, same as on top. The
6 hour is 16 and the minutes are 13, again as on top. So this is
7 the date and time of the call.
8 Q. Now, Ms. Banout, with respect to the information there, the
9 monitor number, the line ID, and the session starting and
10 ending time, how does that information end up on a transcript
11 that you are working on?
12 A. I am sorry, I didn't hear you.
13 Q. I am sorry.
14 How does that information, monitor number, line ID,
15 session start and session end if there is information for that,
16 how does that end up on a transcript that you are working on?
17 A. It's electronically given like when I open, like click on
18 translation, this page shows as is on my screen. I only enter
19 the participants and the bottom information.
20 Q. Okay.
21 So the next line "call direction" and "contact ID" and
22 "audio file name," that information is generated automatically
23 as well?
24 A. Yes.
25 Q. And do you know what "call direction," what that is
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47DSSAT1 Banout - direct
1 indicating?
2 A. Usually a call is either incoming or outgoing. "Unknown"
3 is when the system cannot determine whether it's coming in or
4 out.
5 Q. What about "contact ID?"
6 A. The contact ID would be the person owning the phone line.
7 It's left blank because like you enter it, because you don't
8 know if it is, say, in this case it's Mr. Sattar, you don't
9 know if it is him who is going to use it or somebody else, one
10 of the children or something.
11 Q. And what about audio file name? The next line.
12 A. It's the year, the month, the date, and the phone line, all
13 the phone line information repetitive in a different way.
14 Q. And is that the information from the DVD file name?
15 A. Yes.
16 Q. Now this particular exhibit, Government Exhibit 407, has a
17 line for participants. There is nobody entered there. Can you
18 explain what in general is listed in the participant section on
19 the transcripts that you prepared?
20 A. Yes, I can. You first listen to the call and you put the
21 names of the two people speaking. If it is Mr. Sattar calling
22 somebody else you put Mr. Sattar's name and then you put down
23 the name of the other person who he is talking to.
24 Q. And if there are 3 or 4 participants, would you put those
25 people as well?
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47DSSAT1 Banout - direct
1 A. Yes.
2 Q. Now, sometimes in "participants" in these transcripts it
3 lists UM or UF.
4 A. Yes.
5 Q. What does that mean?
6 A. We use these abbreviations to say U is unknown or
7 unidentified male, UM. UF, unidentified female.
8 Q. And then UC appears sometimes as well. What does that
9 mean?
10 A. Unidentified child.
11 Q. And then the next section, "abbreviations" -- and before I
12 move on to that, who actually enters on your transcripts the
13 participants?
14 A. I do.
15 Q. Okay. And on the next section, "abbreviations", who
16 actually enters the information in the abbreviations section?
17 A. I do too.
18 Q. Okay.
19 There is a few in front of you. I guess I will ask
20 you about those. The first one, UI in parenthesis, what does
21 that mean?
22 A. When you can't hear a word it's unintelligible, so we put
23 UI to indicate that.
24 Q. I am sorry.
25 A. No problem.
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47DSSAT1 Banout - direct
1 Q. And the next one, PH in parenthesis, phonetic spelling,
2 what does that mean?
3 A. It means for a name as you hear it phonetic, the way you
4 heard it.
5 Q. What do you mean?
6 A. Like you hear the name, for instance, Ali, you put PH in
7 brackets meaning like this is the way I heard it. The spelling
8 is not given to me. So I put it phonetic.
9 Q. So if you don't know how to spell something, like a name,
10 you will sound it out basically?
11 A. Exactly.
12 Q. Okay.
13 And then you have dot dot dot for incomplete thought.
14 Can you explain what that signifies?
15 A. Yes, as people speak sometimes they don't complete the
16 sentence or they say a few words and then they jump to another
17 something. So as they start the sentence and don't finish it,
18 I cannot put a period because it's incomplete, so I put these
19 three dots to show that the thought here is not complete.
20 Q. Okay.
21 And then on this transcript 407 there is what looks
22 like an underline?
23 A. It is.
24 Q. Spoken in English?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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47DSSAT1 Banout - direct
1 Q. Can you explain what this indicates on these transcripts
2 and on Government Exhibit 407?
3 A. Yes.
4 The underlining is to show that this is spoken in
5 English, not Arabic. I don't want the reader to think that I
6 translated that. I want to show that it is said in English.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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47DLSAT2 Banout - direct
1 BY MR. BARKOW:
2 Q. Okay, so on a call where, say, 95 percent of the
3 conversation is in Arabic, and 5 percent is in English, the
4 things that you translated from Arabic into English, will that
5 be underlined or no?
6 A. No.
7 Q. Okay. But the 5 percent that was in English to begin with
8 and that you transcribed, would that be underlined?
9 A. Exactly.
10 Q. Okay. Now, let me give you a flip-side example. Let's say
11 there was a call -- there were a few of these in the pile in
12 front of you -- where 95 percent of the conversation is in
13 English and 5 percent is in Arabic. Does it sometimes list
14 then that the underlined portion is that which is spoken in
15 Arabic?
16 A. Yes. But at the same time will say on top -- instead of
17 spoken in English, it would say spoken in Arabic.
18 Q. Okay. Meaning in this abbreviation section you're saying?
19 A. Exactly.
20 Q. Now, I want to ask you about a few other types of notations
21 that appear in these transcripts as a general matter.
22 Sometimes in these transcripts you've indicated items in
23 brackets?
24 A. Yes.
25 Q. Would you explain why you use brackets and put information
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47DLSAT2 Banout - direct
1 in in brackets in certain places?
2 A. Yes, I sure can. What I put in brackets is things that
3 that are not spoken and yet you hear them, like laughing, for
4 instance.
5 Q. And when you did that, did you put the bracketed
6 [laughing] in the place where the laughing actually occurred in
7 the conversation?
8 A. Yes.
9 Q. And other times there's information in brackets that is
10 something like "intermission" or "technical problem" or
11 something like that.
12 A. Yes.
13 Q. Could you explain what that is briefly?
14 A. Yes, I can. The intermission is when you get -- you hear
15 sometimes clicks or some distorted static noise. I put that as
16 technical problems to show that something technical is
17 happening here.
18 Q. And when you noted that kind of information, intermission
19 or technical problem, was the problem confined to that spot on
20 the transcript?
21 A. Yes.
22 Q. And so if that information is not noted, that is, it
23 doesn't say intermission or technical problem, were you able to
24 hear clearly?
25 A. Yes.
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1 Q. Okay. Now, sometimes you have s-i-c or "sic" in brackets.
2 What does that mean?
3 A. I put s-i-c to mean that this is the mistake of the
4 speaker. We all do mistakes as we talk. We don't speak
5 straight all the time. If I make a mistake while I speak and
6 the listeners do not make sense of what I'm saying, but this is
7 what I've said anyway, I put sic, s-i-c, in brackets, to show
8 that this is the way it was said and I translate it as such.
9 Q. So just to be clear, if you were listening and translating
10 a conversation, and someone misspoke or used poor grammar or
11 used a word incorrectly, would you translate it and transcribe
12 it as they said it?
13 A. Yes.
14 Q. Is that the kind of situation you would use sic?
15 A. Yes.
16 Q. Now, sometimes in these transcripts you have things in
17 italics. Could you explain why you have that?
18 A. Yes. I use italics when it is not my translation. Say,
19 for instance, it's a quotation, usually from the Koran, a
20 quotation from another book called Hadith. It's not my
21 translation.
22 Q. What --
23 A. I'm sorry, let me explain here. The quotation of the
24 Koran, we take it as-is from the person. But Hadith, we don't
25 have a standard translation for Hadith, and it's our
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1 translation yet because it is still a Hadith that is quoted. I
2 put it in italics.
3 Q. What is the Koran?
4 A. It's the holy book for the Muslim religion.
5 Q. What is the Hadith?
6 A. The Sayings of the Prophet.
7 Q. So when you put things in italics to signify the Koran or
8 the Hadith, how were you able to determine that they actually
9 were from the Koran or the Hadith?
10 A. It's easy to determine because the language of the Koran is
11 very different from everyday language. You can tell right away
12 that this is a verse from the Koran quoted here.
13 Q. And did you do anything to check and confirm whether it was
14 from the Koran or not?
15 A. Yes. I have a book that tells me where to pick each single
16 verse from the Koran, and I take it from the Koran as-is, as a
17 quotation.
18 Q. So when you believed, as an initial matter, that something
19 was from the Koran, did you look it up?
20 A. Yes.
21 Q. When you then have it italicized, does that mean you
22 actually checked it?
23 A. I check it and I have it italicized.
24 MR. BARKOW: May I have just a moment, your Honor?
25 THE COURT: Yes.
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1 (Off the record)
2 BY MR. BARKOW:
3 Q. Miss Banout, before I go onto another subject -- I want to
4 place, your Honor, before the witness Government Exhibit 407
5 briefly.
6 THE COURT: All right.
7 Q. Ms. Banout, you had mentioned that this transcript header
8 on Government Exhibit 407 was generated automatically. Is
9 that, to your knowledge -- do you know whether it's a standard
10 way the system operates whether any translator is working on
11 and generating transcripts for this case, that this header
12 would appear automatically?
13 A. Yes.
14 Q. Is it the same header?
15 A. Except for monitor number. When I enter my password into
16 the computer, it says monitor name and it shows my name, but
17 this is for the case, would change names into numbers. So I
18 delete my name and put the number.
19 Q. And so if other translators were making transcripts for the
20 case, it would list their monitor number?
21 A. Yes.
22 Q. And the same header with the same information?
23 A. Yes.
24 Q. And, if you know, was it also standard procedure in the
25 generation of transcripts for this case to italicize quotations
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1 and passages from the Koran?
2 A. Yes.
3 Q. Now, I'd like to place before you and counsel only what I
4 have marked for identification and provided to counsel as
5 Government Exhibit 405 -- actually, may I approach, your Honor?
6 THE COURT: Yes.
7 Q. Ms. Banout, I've placed before you what I've provided to
8 counsel and marked for identification as Government
9 Exhibit 405. Can you take a look at that, tell me whether you
10 recognize it?
11 A. Yes.
12 Q. What is it?
13 A. It's a glossary of terminology that I used, words in
14 Arabic, throughout the English translation.
15 Q. Who made this glossary of terminology?
16 A. I did.
17 Q. And how did you go about making it?
18 A. I referred to a variety of dictionaries and reference
19 books.
20 Q. For what kinds of words?
21 A. For words we use in Arabic as-is, like the word "jihad",
22 like the word "fatwa", like the word "ijtihad", and so on.
23 Q. And the sources and books that you consulted to make this
24 exhibit, this glossary, what kinds of books generally were
25 those?
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1 A. Dictionaries and reference materials.
2 Q. And how many books did you consult to make this exhibit?
3 A. It's either seven or eight.
4 Q. And when you put this glossary together, the words and the
5 content in the glossary, are those your words or were you
6 taking it straight from the sources you were checking?