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/

        2    ------------------------------x
        4               v.                           S1 02 Cr. 395 (JGK)
        5    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        6    and MOHAMMED YOUSRY,
        7                   Defendants.
        8    ------------------------------x
        9                                         New York, N.Y.
       10                                         July 13, 2004
       10                                         9:15 a.m.
       11    Before:
       12                          HON. JOHN G. KOELTL
       13                                            District Judge
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1                              APPEARANCES
        2    DAVID N. KELLEY
        2         United States Attorney for the
        3         Southern District of New York
        3    ROBIN BAKER
        4    ANTHONY BARKOW
        5    ANDREW DEMBER
        5         Assistant United States Attorneys
        6    KENNETH A. PAUL
        7    BARRY M. FALLICK
        7         Attorneys for Defendant Sattar
        8    MICHAEL TIGAR
        9         Attorneys for Defendant Stewart
       10    DAVID STERN
       11    DAVID A. RUHNKE
       11         Attorneys for Defendant Yousry
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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,
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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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                                      (212) 805-0300
        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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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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                                      (212) 805-0300
        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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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:
       25    BY MR. BARKOW:
                            SOUTHERN DISTRICT REPORTERS, P.C.
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             47DSSAT1                 Banout - direct
        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?
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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?
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             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
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             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?
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             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,
                            SOUTHERN DISTRICT REPORTERS, P.C.
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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.
                                      (212) 805-0300
             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
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
             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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        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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        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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        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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        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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        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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        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.
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        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)
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        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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        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?
        7    A.  No, straight from the sources.
        8             MR. BARKOW:  Your Honor, the government offers
        9    Government Exhibit 405.
       10             THE COURT:  All right.  No objection?  Government
       11    Exhibit 405 received in evidence.
       12             (Government's Exhibit 405 received in evidence)
       13             MR. BARKOW:  May I place before the jury Government
       14    Exhibit 405?
       15             THE COURT:  Yes.
       16    BY MR. BARKOW:
       17    Q.  Ms. Banout, now, showing you Government Exhibit 405, I just
       18    want you to explain briefly the format here.  Can you explain
       19    first the information on the top?  And it's slightly -- it's
       20    kind of faded on this, but is it gray on your copy of it?
       21    A.  Yes.
       22    Q.  In this top row, will you explain what kind of information
       23    is listed there?
       24    A.  It's the name of the source:  Author, publisher.
       25    Q.  And then looking at the far left-hand column, what
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        1    information is contained in the far left-hand column?
        2    A.  The word "source".
        3    Q.  The same on the next page, the same left-hand column, the
        4    word that you were using?
        5    A.  Yes.
        6    Q.  And the third page, is that the same format?
        7    A.  Yes.
        8    Q.  And if I could show you for example the third page over the
        9    first page, do the columns here -- here's the first page, and
       10    then this is the third page I'm placing over it -- do the
       11    columns match up from the first page?  That is the one that
       12    lists the book source for all the subsequent pages.
       13    A.  Yes, it does.
       14    Q.  Okay.  Now, how and why did you select the particular words
       15    that you put on this chart as words that you had kept in Arabic
       16    in the transcript?  Why these and not other similar words?
       17    A.  Well, these words in particular become part of the American
       18    language.  But still, to avoid any confusion in understanding
       19    or thought, I put them in Arabic as-is, knowing that they are
       20    part of the American daily speech.  I just wanted them to be
       21    clear for the reader, according to these variety of sources
       22    presented.
       23    Q.  And are these words on this chart used, do they appear
       24    frequently throughout these transcripts?
       25    A.  Yes.
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        1    Q.  Now, just to explain some of the abbreviations and the
        2    information on here.  I want to direct your attention to the
        3    first row which says "jihad" and first ask you, do you see
        4    where it says "Lit." in the second column?
        5    A.  Yes.
        6    Q.  Before the information in quotes.  What does the "Lit."
        7    mean?
        8    A.  "Lit". is used by Dictionary of Islam Being A Cyclopedia of
        9    Doctrines, Rites, etc., to mean "literally".  Like the word
       10    literally means so-and-so.  That's the identification used from
       11    this particular book.
       12    Q.  So you just used it from that book?
       13    A.  Yes, I put it as-is.
       14    Q.  And the other, turning the second page, there's the row for
       15    murabitun that I'm pointing to.  Move over to the second
       16    column.  It says, "not given".  And actually, "not given"
       17    appears throughout Government Exhibit 405.
       18    A.  Yes.
       19    Q.  What does that mean?
       20    A.  It means in this particular book, they didn't research this
       21    word.  So I don't have anything to put in place.  It's not
       22    given.
       23    Q.  And finally, just to explain how this chart, Government
       24    Exhibit 405, is used, using it as an example in the first row,
       25    jihad, can you explain why there's different information
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        1    basically in each box across the chart?
        2    A.  According to A Dictionary of Islamic Terms, 3rd edition of
        3    1989, jihad is defined as holy war.  According to the
        4    dictionary of Islam, the Encyclopedia of doctrines, rights,
        5    ceremonies, etc., it means literally an effort for a striving,
        6    a religious war with those who are unbelievers in the mission
        7    of Mohammed.  It's an incumbent religious duty established in
        8    the Koran, and in the traditions as a divine institution and
        9    enjoined specially for the purpose of advancing Islam and
       10    stopping evil from Muslims.
       11             And these are the very beginning.  It continues from
       12    Pages 243 in the same book to 247 in explanation, and I
       13    couldn't include all of these, but the book is available if
       14    needed.
       15    Q.  And so then the next box -- and the next box?
       16    A.  According to Al-Mawrid English/Arabic Dictionary, 7th
       17    edition of May, 2003, it's a holy war -- dictionary put in
       18    brackets: (by Moslems) -- struggle, strife, fighting, battle.
       19    Q.  And you don't have to read it all, but the same is true
       20    then for the rest of the row there?  That it lists the
       21    dictionary definitions or meanings from these books for that
       22    word?
       23    A.  Yes.
       24    Q.  Ms. Banout, I want to ask you about some words that appear
       25    in your transcripts that are used less often than the words on
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        1    government Exhibit 405, but still appear in the transcripts.
        2             There's a word Aisha, A-i-s-h-a.  What is that word?
        3    A.  Aisha is a name.  Is a female name.
        4    Q.  And is there any significance to that name?  Is that name a
        5    known name or just any kind of random name?
        6    A.  It's a common name.
        7    Q.  What about Ramadan?  What is Ramadan?
        8    A.  Ramadan is the holy month of fasting.
        9    Q.  What about Mus'ad?  What is that?
       10    A.  Mus'ad is the name of a mosque.
       11    Q.  Of a particular mosque?
       12    A.  Yes, and I'm trying to remember the location, but I can't.
       13    Q.  What is a mosque?
       14    A.  It's the holy place where prayer is performed.
       15    Q.  For Muslims?
       16    A.  Yes.
       17    Q.  What is a hajj, h-a-j-j?
       18    A.  It literally means pilgrimage, when they go to Mecca in
       19    Saudi Arabia and they perform pilgrimage.
       20    Q.  What about Adan?
       21    A.  That's a call to prayer.  It's usually chanted from a
       22    minaret, on top of a mosque.
       23    Q.  What English notation that you have -- sometimes you'll
       24    list female lawyer or male lawyer or lawyer.  Could you explain
       25    how you determined what to put and how to translate that?
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        1    A.  Yes.  The word lawyer, same as the word teacher and doctor,
        2    in Arabic is gendered.  You can tell from the Arabic word, you
        3    hear if it's a male or a female.  And to avoid confusion, I
        4    refer to it in brackets if it is a male or a female.
        5    Q.  Ms. Banout, a few other terms and words.  No might or power
        6    saved from Allah.  That is a translation that you have
        7    sometimes in these transcripts.  What does that mean,
        8    essentially in English?
        9    A.  This is a quotation from the Koran.  And it's usually
       10    quoted when a disaster happens, or similar like you say, Oh,
       11    God -- something like that.
       12    Q.  It's just an expression that people used similar to, Oh, my
       13    God in English?
       14    A.  Exactly.
       15    Q.  What is an emir?
       16    A.  Emir is the head of either a group or a small state, like
       17    we hear of the United Arab Emirates.  Emir is the head of the
       18    Emirate.
       19    Q.  What about amir, a-m-i-r?
       20    A.  Amir is the Arabic word for the English emir.
       21    Q.  What about "um", u-m or u-m-m?
       22             THE COURT:  I'm sorry, I didn't hear the last answer,
       23    a-m-i-r?
       24    A.  Amir, your Honor, is the Arabic word for emir, which is
       25    emir, e-m-i-r, in English.
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        1    Q.  Ms. Banout, what about um, u-m or u-m-m?
        2    A.  That's the female of abu.  Abu whoever -- Abu Ali is the
        3    father of Ali.  Um Ali is the mother of Ali.
        4    Q.  You said abu.  How do you spell that?
        5    A.  A-b-u.
        6    Q.  So that's used in connection with someone's name?
        7    A.  Yes.
        8    Q.  Will you explain the use of "um" and "abu" a little bit?
        9    A.  Yes, um and abu are used as an alias name for the same
       10    person.  Some countries use it as kind of dignity in a family,
       11    like it's more respectful to say -- instead of saying, Nabila,
       12    for instance, they say, "Um", and then they put the name of my
       13    son.
       14    Q.  But both would be referring to you?
       15    A.  Oh, yes.
       16    Q.  What about pasha?  P-a-s-h-a?
       17    A.  That came to the Arabic language in Egypt from Turkey.
       18    It's a dignified title.  A title of respect.
       19    Q.  And I just have a few more.  Mawlana.  What does that mean?
       20    A.  Literally, it means like "our guardian".  But it's used as
       21    a title.
       22    Q.  Okay.  Sometimes you translate an expression, "We will
       23    smash the table lamp."  That's how you have it in English.  Can
       24    you explain that translation?
       25    A.  In its context, the context I had, it means, will mess
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        1    everything, will turn everything upside down.
        2    Q.  It's a figure of speech that means that, basically?
        3    A.  Not very common.
        4    Q.  I'm sorry, not very common or common?
        5    A.  Not very common, no.
        6    Q.  What about "I smashed the light"?
        7    A.  I turned it upside down.
        8    Q.  That's what that means?
        9    A.  Yes.
       10    Q.  What about the expression, "The necklace beads are
       11    scattered"?
       12    A.  Necklace beads are scattered means like disunity happens.
       13    The necklace is all put together with one string.  Now when the
       14    beads are scattered is when each goes apart.  So no more unity.
       15    Q.  And these last three that I just asked you about, about the
       16    necklace beads, I smashed the light, and, We will smash the
       17    table lamp, are those just methods of speaking in Egypt or
       18    what's the source of those expressions?
       19    A.  Well, it's difficult to say the source, because language,
       20    like each day, comes with new words.  People make new words.
       21    You hear it in movies, you hear it repeated several times, and
       22    then it becomes part of their daily speech.  So it develops as
       23    culture goes.
       24    Q.  There are a few more words in your transcripts.
       25    A.  Uh-huh.
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        1    Q.  Liman, Abu Za'bal, and Iistiqbal.  What are those words?
        2    A.  These are three names of three different prisons in Egypt.
        3    Q.  And what about these words:  Al-Quds, Al-Hayat, and Asharq
        4    Al-Awsat?  What are those?
        5    A.  These are newspapers issued in Arabic.
        6    Q.  What does the word sa'idi mean?
        7    A.  It means upper Egyptian.
        8    Q.  Is that someone who's from upper Egypt?
        9    A.  Yes.
       10    Q.  And now, what about these words:  Al-Mansura, Al-Kush,
       11    Suhaj, Aswan, Al-Menya, Maragha, Saqolta, Manfaloot, Tama,
       12    Qena, Luxor, and Assuit?  What are those words?
       13    A.  All of these are names of cities in Egypt.
       14    Q.  Al-Giza, what is that?
       15    A.  Again, it's a city.  It's a government at the same time.
       16    Southern Cairo.
       17    Q.  Southern Cairo?
       18    A.  South of Cairo, yes.
       19    Q.  What about Al-Azhar?
       20    A.  That's a university in Egypt, it's the Islamic university.
       21    Q.  And finally, the Sixth of October.  What is the Sixth of
       22    October?  What does that mean?
       23    A.  It's the name of a city and it's also a date of -- where
       24    Sadat conquered Israel.
       25    Q.  And that was President Sadat of Egypt?
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        1    A.  Yes.
        2    Q.  Now, Ms. Banout, one other subject I want to cover with
        3    you.  How did one determine how to spell a name, an Arabic
        4    name, in English, and how did you make that determination in
        5    making the transcripts?
        6    A.  Unless the spelling is given, and I use it as is.  Unless
        7    it's given, we use a system called transliteration, and this
        8    transliteration means like each single letter has its
        9    equivalent, and we use it to be consistent in spelling the
       10    names.
       11    Q.  When you say a name would be given, what do you mean by
       12    that?
       13    A.  Like when someone has his name spelled consistently in all
       14    his documents and everywhere, he doesn't change it, we use
       15    that, because this is the way this person spells his name.
       16    Q.  And then you talked about transliteration, can you explain
       17    what that is?
       18    A.  If I don't have a standard spelling on the name, we use the
       19    transliteration system.
       20    Q.  And -- which is what?
       21    A.  Which is each single letter has another equivalent one in
       22    English.  And I use that, so we stay consistent as much as we
       23    can.
       24    Q.  Let me ask you just to explain this using -- a few
       25    examples.  The name Ahmed.  Can you explain the Arabic word for
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        1    that name and the possible spelling or spellings in English of
        2    that name?
        3    A.  Yes.  If I translate Ahmed, it's A-h-m-a-d.  In case of
        4    Mr. Sattar, he consistently spells it A-h-m-e-d, not with an
        5    "a".  "E-d".  So we keep it this way.
        6    Q.  And both spellings, do they refer to the same Arabic name?
        7    A.  Yes.
        8    Q.  And what is that Arabic name?
        9    A.  Ahmed.
       10    Q.  And how many letters in Arabic is that name?
       11    A.  Four.
       12    Q.  What about the name Muhammad?  Could you explain how
       13    Muhammad can and is spelled -- can be and is spelled in the
       14    transcripts and how it corresponds to an Arabic name?
       15    A.  Yes.  If I translate -- if I transliterate the name
       16    Muhammad it will be M-u-h-a-m-m-a-d.  That's how to
       17    transliterate it.  But because different people say it so many
       18    different ways, each one -- someone can have a spelling of his
       19    name M-o-h-a-m-e-d.  Someone puts it with a double "m".
       20    Someone does not use any "u".  Says "m-o".  All of which is
       21    correct.
       22             The reason for that, Mr. Barkow, is that the vowel
       23    system in Arabic is very complicated.  We don't have vowels the
       24    same way they have them in English.  We use vowel marks on
       25    consonants, and it depends on the way you pronounce the name is
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        1    how it comes to the ear of your listener and how he writes it.
        2    Q.  And for all these names of Muhammad, all those different
        3    English spellings, how many Arabic spellings are there of that
        4    name?
        5    A.  One.
        6    Q.  And how do you say that name in Arabic?
        7    A.  Muhammad.
        8    Q.  And how many letters are in that Arabic name?
        9    A.  Surprisingly, just four.
       10    Q.  And one final name I want to ask you to explain different
       11    spellings for, Abdel Rahman.  Can you explain the different
       12    ways that one could translate or transliterate or spell Abdel
       13    Rahman in English?
       14    A.  Yes.  The name Abdel Rahman consists of two words.  Some
       15    names consist of two words, but it's a name of one person.  One
       16    name.  So Abdel is a word.  Abdel Rahman is another word.  Some
       17    people write it Abd Al-Rahman.  Some people think it's easier
       18    for the American ear to put the a-l and make it Abdul or Abdel.
       19    That will spell it A-b-d-u-l or A-b-d-e-l.  And then Rahman is
       20    a separate word.
       21             So different people spell it different ways.  But it's
       22    the same person.
       23    Q.  And are all those different spellings which refer to the
       24    same person, are they all correct?
       25    A.  Yes.
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        1             MR. BARKOW:  May I have just a moment, your Honor?
        2             THE COURT:  Yes.
        3               (Off the record)
        4             MR. BARKOW:  I have nothing further at this point,
        5    your Honor.
        6             THE COURT:  All right.  Mr. Stern, you may examine.
        8    BY MR. STERN:
        9    Q.  Good morning, Ms. Banout.
       10    A.  Good morning.
       11    Q.  Ms. Banout, I think you said you've been a translator for a
       12    number of years, correct?
       13    A.  Yes.
       14    Q.  And your job of translator, I take it, is to take documents
       15    either in Arabic or English and transfer them from that
       16    language into the other language, correct?
       17    A.  Correct.
       18    Q.  Have you had an opportunity to translate between people,
       19    that is, to interpret where one person is speaking, you're
       20    sitting there and you take what the one person says and
       21    translate it to that language immediately as they're sitting
       22    there?
       23    A.  Yes.
       24    Q.  And that's very different from what you do as a translator,
       25    isn't it?
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        1    A.  I wouldn't say different.  I'm doing the same job, but
        2    except that I'm doing it like as it happens.
        3    Q.  Well, for example, if someone were to say a Koranic -- I'll
        4    use the word, saying, I'm not sure if that's the right thing --
        5    you can't go look that up when you're interpreting, can you?
        6    A.  No.
        7    Q.  And if someone uses a word you don't know the exact
        8    equivalent, you have to just do the best you can, right?
        9    A.  Exactly.
       10    Q.  So they're not really exactly the same.  When you translate
       11    you can use much more care in converting things from one
       12    language to another.  That's fair to say, isn't it?
       13    A.  Yes, it is.
       14    Q.  Okay, now, I want to talk about the translating you do of
       15    these documents, primarily for Mr. Sattar, okay?
       16             When you did that, you were given documents by an
       17    agent, right?
       18    A.  Yes.
       19    Q.  And those documents in this case consisted of phone calls
       20    on a DVD or a tape, something like that, right?
       21    A.  Yes.
       22    Q.  And you were asked to take them and translate them?
       23    A.  Yes.
       24    Q.  And would you say to him, the agent -- in this case, I
       25    suppose it was Mr. Kerns, right -- Why am I doing this?
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        1    A.  Mr. Kerns is the --
        2    Q.  I'm sorry, would you say to Mr. Kerns:  Why are you asking
        3    me to do this?
        4    A.  Why he's asking me to do the translation?
        5    Q.  Right, did you ask him that question?
        6    A.  No.
        7    Q.  Would you say, What are you going to do with this once I'm
        8    done translating it?
        9    A.  Let me explain.  Mr. Kerns is the one who gives us the DVD,
       10    the translation is given -- like, we have it in on our
       11    computer, the courts come -- calls come with a court order.
       12    Q.  I'm sorry, say that again.
       13    A.  The calls we were covering are given to us under court
       14    order.  I open my computer, enter my passwords and go through
       15    the calls and do them.  After I translate them, they go to the
       16    case agents who takes care of them.  That's the end of my job.
       17    Q.  So you never asked him:  Why do you want me to do this and
       18    what are you going to do with my translations, do you?
       19    A.  This is explained in the court order that we obtained from
       20    the very beginning as a reason why we are having this.
       21    Q.  When you say "we obtain", did you obtain that court order?
       22    A.  Yes, the agents do, and we take it, yes.
       23    Q.  And did you read that court order?
       24    A.  Yes.
       25    Q.  And when you read that court order, did you yourself make a
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        1    determination whether it was a legal or illegal court order?
        2    A.  It is legal.
        3    Q.  I'm asking did you yourself make that determination?
        4    A.  No.
        5    Q.  Do you know the law, you yourself, know the law that
        6    governs what's legal or illegal about those orders?
        7    A.  Yes.
        8    Q.  You do know the law about that?
        9    A.  Yes.
       10    Q.  And so you go in front of a judge and you explain to a
       11    judge why those should be granted or not granted?
       12    A.  Based on the reasons, the case agents has to cover a
       13    certain line, the court order is given.
       14    Q.  I'm asking now about you personally, Ma'am.  Not about the
       15    agents.  About you personally, and your personal understanding
       16    of the law that grants people the right to get wiretaps.
       17    You're not a lawyer, are you?
       18    A.  No.
       19    Q.  And you yourself don't write up applications to judges to
       20    get court orders for wiretaps, do you?
       21    A.  No.
       22    Q.  And you yourself have never researched the laws about how
       23    someone gets court orders to get wiretaps, have you?
       24    A.  No.
       25    Q.  And so what happens, really, is the agents come to you and
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        1    they say, We have gotten a court order, right?
        2    A.  Yes.
        3    Q.  And we would like you to do this work based on the court
        4    order we've got, right?
        5    A.  Yes.
        6    Q.  And you don't, yourself, do research into whether or not
        7    they had good grounds to get that court order, do you?
        8    A.  It's available for me if I want it.
        9    Q.  My question is:  Do you yourself do legal research into
       10    whether or not they had grounds to get that court order?  Do
       11    you yourself do that research or --
       12    A.  No.
       13    Q.  -- do you take their word for it?
       14    A.  No, I don't.
       15    Q.  You take their word for it, don't you?
       16    A.  Yes.
       17    Q.  And there's nothing wrong where that, is there?
       18    A.  No.
       19    Q.  And when they ask you to translate one document to another
       20    language, there's nothing wrong with that?
       21    A.  Yes.
       22    Q.  You assume there's nothing wrong with that?
       23    A.  No.
       24    Q.  And as far as you know, there isn't anything wrong with
       25    that?
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        1    A.  No.
        2    Q.  Now, you talked some about the use of the terms "um" and
        3    "abu", right?
        4    A.  Right.
        5    Q.  And you referred to those as aliases?
        6    A.  Yes.
        7    Q.  But by alias, you don't mean anything nefarious or bad?
        8    A.  No, it's a different way of saying what you mean.
        9    Q.  Not, for example, hiding someone's identity?
       10    A.  No.
       11    Q.  It's just a way people use to refer someone sometimes to
       12    give them more respect, right?
       13    A.  Exactly?
       14    Q.  And you also talked about some newspapers, Al-Hayat and
       15    Al-Quds, right?
       16    A.  Yes.
       17    Q.  And those papers are mainstream Arabic newspapers, aren't
       18    they?  Published publicly, right?
       19    A.  Yes.
       20    Q.  Not geared toward any particular group other than Arabic
       21    speakers?
       22    A.  None that I know of.
       23    Q.  And you can buy one at any regular newsstand, right?
       24    A.  Yes.
       25    Q.  Both are published in London?
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        1    A.  I know Al-Hayat is published in London.  I'm not sure where
        2    Al-Quds is published.  Probably in London, too, but I'm not
        3    sure.
        4    Q.  Both publish general information about what's going on in
        5    the Arabic world, right?
        6    A.  Yes.
        7             MR. STERN:  Thank you.  I have nothing else.
        8             THE WITNESS:  Thank you.
        9             MR. PAUL:  I just have one or two questions.
       10             THE COURT:  Thank you.  Mr. Paul, you may examine.
       12    BY MR. PAUL:
       13    Q.  Ms. Banout, you made some reference to the use of
       14    translations from the Koran.
       15    A.  Yes.
       16    Q.  Which -- there are different translations of the Koran, are
       17    there not?
       18    A.  Yes.
       19    Q.  Which reference did you use?  Which translation of the
       20    Koran did you use in your translation of these intercepts that
       21    you were listening to?
       22    A.  I think, if I remember right, it's -- it says -- it's a
       23    green book on my desk that says, Translations of the Meanings
       24    of the Koran.  And I think Yusuf Abdullah, something, is the
       25    one.
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        1    Q.  Yusuf?
        2    A.  Yusuf Abdullah something or something Abdullah.  I'm not
        3    saying the full name, but I'm trying to say it to the best of
        4    my recollection.  It's either the editor or the one who did the
        5    translation of that book.
        6    Q.  And is there any particular reason you used that specific
        7    translation in the use of these translations that you were
        8    doing?
        9    A.  Well, the only reason I have for this one in particular is
       10    that there was no other one available in the market back then.
       11    We are talking now about year '95 -- no, even earlier.
       12    Since '93.  We didn't have any other translation available in
       13    the market other than that one.  Like, we had no choice.  We
       14    used it but we use it consistently because it was the only one
       15    available.  Now there are so many others.
       16    Q.  You're saying you used this particular translation of the
       17    Koran because that's what your office was utilizing back
       18    in '93, '94, '95; is that right?
       19    A.  Yes.
       20    Q.  But since then, as you've testified, there have been many
       21    translations on the market, easily accessible to anybody who
       22    wishes, is that so?
       23    A.  Yes, yes.
       24    Q.  But because you began with this specific reference, you
       25    continued throughout because of the consistency of that?
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        1    A.  Exactly.
        2    Q.  There was mention, I believe, of Exhibit 405, where you
        3    took the English words, and you had brackets.  We saw it on the
        4    projector?
        5    A.  The glossary?  Yes.
        6    Q.  The columns and so forth?
        7    A.  Uh-huh.
        8    Q.  Did you do that with regard to the Koranic translations
        9    that you were using?  In other words, did you take a specific
       10    reference that was used in an intercept that you were listening
       11    to that was clearly from the Koran and list the different maps,
       12    different translations from different sources of that Koranic
       13    verse.  Did you ever do that?
       14    A.  No.
       15    Q.  So you always remained with the one specific translation
       16    that you've described?
       17    A.  Yes.
       18    Q.  Would you agree with me, Ms. Banout, that different
       19    translations of the Koran would certainly use different words
       20    in the definitions or the translations specifically from Arabic
       21    to English with regard to the Koranic versus?
       22    A.  This is why I use the quotations from the Koran as-is.
       23    Q.  From that specific reference that you utilized?
       24    A.  Yes, yes.
       25    Q.  But if I went to a different reference, the same Koranic
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        1    verse that you were translating from, the one you were using,
        2    might have a different translation of that specific Koranic
        3    verse, would it not?
        4    A.  Translations can likely differ.  That's for sure.
        5    Q.  So, in fact, if I am translating a specific word from the
        6    Koran or a specific saying from the Koran, if I went to your
        7    reference that you utilized and then went to a second, third or
        8    fourth reference, I might have different translations of that
        9    specific Koranic verse?
       10    A.  Follow me, please.  Are you saying that we translate the
       11    verses of the Koran?  No, we don't.  The versus of the Koran
       12    stay as-is, as whoever is the translator of that particular
       13    book, whether it's the one I use or any other.  The verses of
       14    the Koran are not translated by us.  It's taken from different
       15    books.  We do our translation of other speech, other than the
       16    verses.  The verse stays a verse, as quoted in Arabic, said in
       17    English, same way as it is quoted in Arabic.  We don't
       18    translate verses.
       19    Q.  But you've told us that you made reference to a translation
       20    of the Koran, have you not?
       21    A.  What do you mean, I made reference to.
       22    Q.  You used a reference book, translating Koranic versus, did
       23    you not?  You said you used a specific reference book?
       24    A.  I think there is a confusion here.
       25    Q.  Withdrawn.
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        1             When did you use the book that you've just described?
        2    For what purpose?
        3    A.  The translation, the Koran itself?
        4    Q.  Yes.
        5    A.  I used it to get out the Koranic verses that I quoted in
        6    italics.
        7    Q.  And those verses would be the same through out no matter
        8    which reference you would use?
        9    A.  I can't answer your question because different translations
       10    can likely differ in a word or the way it was stated.
       11    Q.  That's what I was trying to find out.  Thank you.
       12    A.  Okay.
       13             THE COURT:  Mr. Barkow?
       15    BY MR. BARKOW:
       16    Q.  Ms. Banout, you were asked on cross-examination by
       17    Mr. Stern about whether you took an agent's word for it
       18    essentially that a court order was okay.  Do you remember those
       19    questions?
       20    A.  Yes.
       21    Q.  If the agent or anyone had said you to do something that
       22    you knew to be illegal, what would you have done?
       23    A.  I wouldn't do it.
       24    Q.  If someone asked you to translate something where they were
       25    asking someone else to go commit a crime with them, what would
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        1    you have done?
        2    A.  I'd refrain.  I'd never do that.
        3             MR. BARKOW:  Nothing further, your Honor.
        4             THE COURT:  All right.  The witness is excused.  The
        5    witness may step down.
        6             Actually, before you do that, this is going to be a
        7    convenient time for us to take our mid morning break.  Just
        8    stay there for a moment.
        9             Ladies and gentlemen, we'll take five minutes.  We
       10    began a little late -- 10 minutes.
       11             Please, remember my continuing instructions not to
       12    talk about the case; keep an open mind.  All rise, please.
       13               (Morning recess)
       14               (Continued on next page)
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             47DLSAT2                 Banout - redirect
        1               (In open court; jury not present)
        2             MR. MORVILLO:  Your Honor, I've been informed by all
        3    parties that they won't stipulate to the testimony of this
        4    witness.  In other words, that all of her transcripts that she
        5    was going to testify that she prepared are in her opinion
        6    accurate translations of the audio that she listened to that
        7    are contained on Government Exhibit 1000.  I don't have a
        8    prepared stipulation at this point -- it's sort of a
        9    last-minute development.  I can certainly prepare one over
       10    lunch and come back and give that to the jury at that time.
       11             In addition, your Honor --
       12             THE COURT:  Will the -- the stipulation is also that
       13    the witness is an expert?
       14             MR. MORVILLO:  Yes.  And that in her opinion, it's a
       15    true and accurate translation, translations of the audio
       16    recordings in Exhibit 1000.
       17             THE COURT:  And the attributions.
       18             MR. MORVILLO:  And the attributions is a separate
       19    stipulation, your Honor.  We already have that.
       20             THE COURT:  All right.
       21             MR. MORVILLO:  So there's no need to take up the
       22    Court's and jury's time going through the formalities.
       23    Obviously, however, once we have concluded testimony of Miss
       24    Benjamin, we were going to move into evidence the excerpts of
       25    the transcripts, and then we were going to begin the
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             47DLSAT2                 Banout - redirect
        1    presentation of the transcripts to the jury, which raises an
        2    issue with respect to the audio, with respect to the limine
        3    instruction, and the government was going to ask for an early
        4    break so that we could straighten out our audio situation here.
        5    We were also going to need to discuss with your Honor the
        6    limine instruction.
        7             THE COURT:  Okay.
        8             MR. MORVILLO:  Just so the Court's aware, we don't
        9    have another witness currently lined up for now or the rest of
       10    the day today to testify.  We're going to be reading some
       11    transcripts.
       12             THE COURT:  Well, the jury usually gets their lunch at
       13    1:00 o'clock.  Couldn't you read documents until 12:45?
       14             MR. MORVILLO:  Other than the translations of the
       15    audio recordings?
       16             THE COURT:  Right.  I mean, you were going to do that
       17    otherwise today anyway, right?  No?
       18             MR. MORVILLO:  If we can just have a minute to confer
       19    your Honor, I think we can probably accommodate.
       20             THE COURT:  There's certainly no reason to use up the
       21    jury's time if the parties agree that they're going to
       22    stipulate to the witness's testimony.  So the witness won't
       23    have to testify, but obviously the witness should be kept
       24    available if the stipulation doesn't work out.  And we can take
       25    a slightly longer lunch break, but I would like not to take the
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             47DLSAT2                 Banout - redirect
        1    lunch break now because the jury's not going to get lunch until
        2    1:00 o'clock.
        3             MR. MORVILLO:  Okay.  Let me just have a moment.
        4             THE COURT:  12:45, the jury will take their lunch.
        5             MR. MORVILLO:  May I just use the witness, your Honor?
        6             THE COURT:  Yes, the witness is excused, you may step
        7    down.
        8             MR. BARKOW:  Your Honor, we're checking to make sure
        9    we have the exhibits lined up to use.
       10               (Off the record)
       11             MS. BAKER:  Your Honor, we do have some additional
       12    pieces of Sattar evidence that we would request to publish to
       13    the jury by reading it and in some instances by simply
       14    scrolling through and displaying it on the screen.
       15             THE COURT:  All right.  Which numbers?
       16             MS. BAKER:  We are going to begin with the
       17    stipulation, which is in evidence as Government Exhibit 2035S.
       18    Followed by its corresponding exhibit, which is 2035X.  And
       19    then we were going to continue with Government Exhibit 2061.
       20    Then 2063.  Then 2062.  Those would be read.
       21             THE COURT:  Uh-huh.
       22             MS. BAKER:  And then as far as publication by display
       23    to the jury, Government Exhibit 2081 and Government
       24    Exhibit 2072.
       25             THE COURT:  All right.  All of those exhibits are
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             47DLSAT2                 Banout - redirect
        1    subject to the limiting instruction that the parties had agreed
        2    on, that those exhibits are being offered against Mr. Sattar
        3    and not against Ms. Stewart or Mr. Yousry.  And all of those
        4    exhibits are being offered solely with respect to the
        5    knowledge, intent and state of mind of Mr. Sattar except that
        6    2072 is also being offered with respect to background and
        7    context.
        8             MS. BAKER:  That's correct.  And, your Honor, I would
        9    ask in addition that before beginning with the reading of the
       10    first item, which is 2035S, that we be permitted to remind the
       11    jury that this evidence is from the search of Mr. Sattar's
       12    residence.
       13             THE COURT:  Yes.  All right.  Let's bring in the jury.
       14             MS. BAKER:  We are now experiencing technical
       15    difficulties, your Honor.  The hard copies of these exhibits
       16    aren't in the courtroom; our paralegal went back to get them.
       17    We do have scanned images on the computer.  The people who
       18    really know how to use the computers are the paralegals.  We
       19    were going to read right off of the display on the computer
       20    system, but we're now experiencing -- we're now unable to work
       21    the computers.
       22             THE COURT:  Hold on one moment.  I'm sorry, ladies and
       23    gentlemen.
       24               (Jury almost enters the courtroom)
       25             MS. BAKER:  I think we need to call someone in our
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             47DLSAT2                 Banout - redirect
        1    office for assistance.  We need a moment to do that.
        2             THE COURT:  When will the paralegals be back?
        3             MS. BAKER:  She should be back in however much time it
        4    takes to walk through the connecting tunnels and walk back with
        5    some folders.
        6             THE COURT:  We'll wait.  We'll wait.
        7             MR. BARKOW:  Your Honor, we have resolved it.
        8             THE COURT:  You're sure?  Bring in the jury?
        9             MS. BAKER:  Yes, yes.
       10               (Continued on next page)
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        1             (In open court; jury present)
        2             THE COURT:  Please be seated all.
        3             All right.  Ms. Baker.
        4             MR. BAKER:  Thank you.
        5             Your Honor, at this time we ask permission to continue
        6    publishing to the jury some of the exhibits already in evidence
        7    relating to the search of Mr. Sattar's residence.
        8             THE COURT:  All right.
        9             MR. BAKER:  We would like to begin by reading
       10    Government Exhibit 2035S.
       11             THE COURT:  All right.
       12             Ladies and gentlemen, these are exhibits as to which I
       13    previously gave you a limiting instruction.
       14             As you will recall, these exhibits are being received
       15    only against Mr. Sattar and not against Ms. Stewart or
       16    Mr. Yousry and they are admitted solely with respect to the
       17    knowledge, intent, and state of mind of Mr. Sattar and, in
       18    addition, Government Exhibit 2072 is also admitted with respect
       19    to background and context, but also subject to the other
       20    limiting instructions that I just gave you.
       21             All right, Ms. Baker.
       22             MR. BAKER:  Government Exhibit 2035S is a stipulation
       23    that states as follows:
       24             The parties hereby stipulate and agree that Government
       25    Exhibit 2035X is excerpted from, but is otherwise identical to,
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                                      (212) 805-0300
        1    Government Exhibit 2035.
        2             Your Honor, we would now like to display to the jury,
        3    and read, Government Exhibit 2035X.
        4             THE COURT:  All right.
        5             (At this point, Government Exhibit 2035X in evidence
        6    was read to the jury by Ms. Baker)
        7             MR. BAKER:  Your Honor, apparently this is the third
        8    page of the document.
        9             I am sorry, apparently that is the end of the document
       10    as it was found during the search.
       11             THE COURT::  Okay.
       12             MR. BAKER:  We turn now to Government Exhibit 2061 and
       13    ask permission to display it and read it.
       14             THE COURT:  Yes, subject to the same limiting
       15    instructions.
       16             MR. BAKER:  Your Honor, again, this is a document that
       17    we will present to the jury as found, although it appears that
       18    the pages do not go together.
       19             THE COURT:  All right.
       20             (At this point, Government Exhibit 2061 in evidence
       21    was read to the jury by Ms. Baker)
       22             MR. BAKER:  Your Honor, next we would ask to display
       23    and read Government Exhibit 2063.
       24             THE COURT:  All right, subject to the same limiting
       25    instructions, ladies and gentlemen.
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                                      (212) 805-0300
        1             (At this point, Government Exhibit 2063 in evidence
        2    was read to the jury by Ms. Baker)
        3             MR. BAKER:  Your Honor, would you like me to continue
        4    or would you like to break?
        5             THE COURT:  We can break now.  It's 12:53.
        6             All right.
        7             Ladies and gentlemen, we will resume after lunch, 2
        8    o'clock.
        9             Please remember my continuing instructions not to talk
       10    about the case.  Keep an open mind.
       11             All rise please.
       12             Follow Mr. Fletcher to the jury room.
       13             (Jury left the courtroom)
       14             THE COURT:  Please be seated.
       15             First, would it be helpful to talk among yourselves
       16    about any proposed limiting instructions or do you just want to
       17    give them to me now?
       18             I have a regular instruction that I usually give with
       19    respect to translations that are transcripts from a foreign
       20    language.
       21             MR. BAKER:  Your Honor, I think there are two
       22    different instructions at issue here.  One is with regard to
       23    the recordings themselves.  That is the issue that Mr. Tigar
       24    raised earlier.  And then as far as the transcripts, the
       25    government proposed, and I don't remember now whether it was in
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        1    our original request to charge or whether it was in our
        2    objections to Stewart's request to charge, an instruction that
        3    specifically addressed the fact that in this case we have both.
        4             THE COURT:  I was going to go over those at lunchtime
        5    and I do have one which takes into account the differences
        6    between transcripts of conversations that were in English which
        7    are an aid to the jury and transcripts of a foreign language
        8    which are in evidence.
        9             MR. BAKER:  Okay.
       10             THE COURT:  I can have that and read that to you if we
       11    come back a bit earlier from lunch.
       12             MR. BAKER:  I expect that that would be fine with the
       13    government.  We had objected to the Stewart request because we
       14    didn't believe that it was accurate.
       15             As to the recordings themselves and the instruction
       16    that Mr. Tigar requested earlier, as your Honor saw I left and
       17    tried to look at the relevant case law.  I reread the Knohl
       18    decision, which Mr. Tigar claimed was in support of his
       19    requested instruction, and I find no support in Knohl or
       20    elsewhere for an instruction that essentially urges the jury to
       21    scrutinize with unusual care recordings of conversations and
       22    therefore lacking any such --
       23             THE COURT:  No, it does say that.
       24             MR. TIGAR:  Page 440.
       25             THE COURT:  I am looking at the quote.  It's page 440
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        1    and it's at the end of the paragraph that begins "we are not
        2    unmindful, however" and it says "it is therefore incumbent on
        3    the government to produce clear and convincing evidence of
        4    authenticity and accuracy as a foundation for the admission of
        5    such recordings."
        6             MR. BAKER:  I found it.
        7             I apologize, your Honor.
        8             THE COURT:  That's okay.
        9             MR. BAKER:  Let me withdraw and start over.
       10             My point is an instruction to scrutinize with care to
       11    analogize to a different context like where there has been
       12    evidence that a particular witness has previously perjured
       13    himself or herself a court will give an instruction to
       14    scrutinize such a witness' testimony with care.  That is an
       15    instruction --
       16             THE COURT:  Great care.
       17             MR. BAKER:  Perhaps.
       18             That is an instruction given after the fact of the
       19    perjury has been established in evidence.  The government would
       20    suggest that at this point in the proceedings when the
       21    affirmative evidence presented by the government authenticates
       22    and establishes the reliability of the recordings, that an
       23    appropriate instruction would be one similar to what the court
       24    gave in its preliminary instructions to the jury that tells the
       25    jury that the question of how much weight to give to the
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        1    evidence is a question for them to resolve and that essentially
        2    this evidence should be treated as all other evidence in that
        3    respect.  And then depending on the contrary evidence that is
        4    presented later in the trial, it may be appropriate for a
        5    different instruction to be given later in the trial when there
        6    is some evidence in the record that would support the notion
        7    that this evidence is deserving of special scrutiny.
        8             But for the court to give such an instruction at this
        9    time would be essentially pre-figuring what may or may not
       10    occur later in the trial and so at this point we ask that the
       11    court simply instruct the jury that the question of the weight
       12    to be given to the recordings is a question for them to
       13    consider as they have previously been instructed.
       14             THE COURT:  Okay.
       15             Mr. Tigar.
       16             MR. TIGAR:  The government urged the Knohl case on
       17    your Honor with great fervor last evening and we looked at that
       18    language and thought it was helpful.  As I pointed out in my
       19    oral presentation, the circuit has with this clear and
       20    convincing evidence standard done something different with
       21    wiretap evidence.  And I don't know what the reasons are, your
       22    Honor.  Some of them are hidden and maybe what Judge Hurlans
       23    was getting at was a little bit like suspicion.  But the
       24    circuit, at any rate, has said clear and convincing evidence
       25    and that I think justifies what the Knohl court said.
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        1             You know, it isn't just that old British saying about
        2    gentlemen don't listen to other gentlemen's conversations.  It
        3    is the ubiquity of this evidence makes it very difficult to
        4    combat.  I think you ought to give the instructions right from
        5    the case.
        6             MR. BAKER:  Your Honor, in the Knohl decision, now
        7    that you have pointed me to the right part of it, just before
        8    the phrase that paraphrases the instruction, the court says
        9    essentially where the evidence is admitted or where the
       10    recordings are admitted, "but the evidence is conflicted on
       11    these points" -- that is, the points of authenticity and
       12    accuracy -- then the court must "caution the jury to scrutinize
       13    the evidence with care," and so the government's point is that
       14    as of right now there is not that record of conflicting
       15    evidence.
       16             THE COURT:  But, you know, you can dispute evidence by
       17    cross as well as on a direct case and I don't recall if in
       18    Knohl they are talking solely about essentially the cross
       19    examination of the government's witnesses on the chain of
       20    custody.  That is certainly what a lot of it is about.  But
       21    there was sufficient evidence with respect to authentication
       22    and accuracy for the foundation, but it was the disputes over
       23    how the evidence came about that led the court to say what the
       24    trial court should say with respect to an instruction.  And I
       25    will think about it, but Knohl certainly points the way to an
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        1    instruction when there is a dispute over authenticity and
        2    accuracy.
        3             MR. BAKER:  Your Honor, I would only point out in
        4    addition just based on the structure of the Knohl opinion the
        5    previously quoted passage, the one on which Mr. Tigar relies
        6    that your Honor directed me to, appears at the end of the
        7    portion of the opinion or in the portion of the opinion where
        8    the Second Circuit is essentially reciting the law generally.
        9             The Second Circuit is not specifically indicating at
       10    that point in the opinion that that instruction was in fact
       11    given.  Later in the opinion -- all I am saying is it's
       12    unclear.  Later in the opinion, on page 441, just below the top
       13    of that page, it describes what actually happened in the trial
       14    court in the Knohl case and it says, "Thereafter the jury,
       15    after hearing testimony and arguments relative to the
       16    reliability and accuracy of the tape, and under proper
       17    instructions from the court, reached its own conclusion on that
       18    that issue."
       19             So that later sentence suggests to me that the way it
       20    actually happened in the Knohl case was that, as I said, after
       21    there had been conflicting testimony and arguments, which
       22    suggests summations, that in its concluding instructions the
       23    court gave whatever instructions it gave and so that just goes
       24    back to my point that we would request just a "usual weight"
       25    instruction at this point in the trial.
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        1             THE COURT:  Well, I will think about it.  But the
        2    court did say it must caution the jury, and the other thing is
        3    it seems to me that this is a time when I would be giving
        4    several instructions to the jury, including the reliability and
        5    weight of the evidence as all issues of fact are for you to
        6    determine and I have to give instructions to the jury with
        7    respect to the use of the transcripts and this would appear to
        8    be an appropriate time for another instruction.
        9             I will think about it over lunch.
       10             Let me ask the next question.
       11             I understand there are the two instructions and I will
       12    explain those to you after lunch.
       13             After those instructions are worked out, are tapes
       14    ready to be read with transcripts?
       15             There is also a stipulation to be worked out over
       16    lunch.
       17             MR. BAKER:  Correct.  And at that point the
       18    transcripts are ready.  We do have a means of playing the audio
       19    at the moment.  What we are hoping to do over the lunch hour is
       20    bring in the necessary technology for a better means of playing
       21    the audio.  Currently we would be playing it outloud using
       22    essentially a speaker, but given the not very good acoustics of
       23    the courtroom our hope is that over the lunch hour we can
       24    arrange for headsets so that all of the jurors and the parties
       25    and attorneys will be able to listen to the recordings with the
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        1    headsets.  But we do believe that either way we are ready to
        2    begin presenting through the playing of certain recordings and
        3    the presentation of the transcripts.
        4             MR. TIGAR:  Does the government intend with each
        5    recording to play the SRI or to exhibit or display that to the
        6    jury?
        7             MR. BAKER:  We do not because the SRI, or the relevant
        8    SRI, which is the date and time of the call and the telephone
        9    number on which it was intercepted, appear in the header of
       10    each transcript and that is how we anticipated presenting that
       11    information about each call to the jury.
       12             In addition, it is not the government's intention to
       13    play every call for the jury.  Obviously English-language calls
       14    need to be played because the recording is the evidence and the
       15    transcript is an aid to the jury.
       16             As to Arabic calls, it is the government's intention
       17    to play certain calls so that the jury can hear samples for
       18    themselves of how a call sounds or perhaps as the trial
       19    progresses play particular calls for particular reasons if a
       20    tone or inflection or voice is important for some reason, but
       21    it is not our intention to subject the jury to hearing each
       22    call twice by listening to the recording in Arabic and then
       23    having it read to them in English.
       24             MR. TIGAR:  We have no objection to that procedure,
       25    your Honor.  During our presentation we will present the SRIs
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        1    because of the oddball information that is in them.
        2             THE COURT:  Okay.
        3             Anything else that I should resolve before lunch?
        4             Otherwise you have got reasonable work to do and I
        5    will see you 10 minutes before 2.
        6             (Luncheon recess)
        7             (Continued on next page)
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        1                   A F T E R N O O N   S E S S I O N
        2    2:00 p.m.
        3               (In open court; jury not present)
        4             THE COURT:  Good afternoon, all.  Be seated.
        5             MR. TIGAR:  We will proceed, your Honor, with this --
        6    we agreed to it and ask that it be given.
        7             MS. BAKER:  Your Honor, the government has received it
        8    and read it.  We respectfully disagree with it, for the reasons
        9    I stated earlier, but obviously we take it as a ruling by the
       10    Court.
       11             THE COURT:  You disagree only with the second
       12    paragraph, I take it, about disputes over authenticity.
       13             MS. BAKER:  Correct.
       14             THE COURT:  Okay.  All right.  Are we going to bring
       15    the jury in?  Are we ready?  Are the technical issues resolved?
       16    I see some headphones.
       17             MS. BAKER:  Your Honor, we believe that all of the
       18    technical issues are resolved and that all of the technology is
       19    working and we may play the first call.
       20             Just for the Court's information, the first call,
       21    Exhibit 1001, is an English language call.  And we will be
       22    playing that one.  And that -- whenever the Court will like to
       23    tell the jury about the instruction, and so on.  That call,
       24    because it's in English, we would ask that while it's playing
       25    that we be permitted to display the corresponding excerpted
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        1    transcript.
        2             And then the next few calls, 1002, 1003, 1004, are
        3    Arabic language calls.  As to those, we would ask to play them
        4    in Arabic but then we would, after playing them in Arabic, ask
        5    to go back and display and read aloud the English language
        6    translations.  And if the Court requires -- if the Court needs
        7    to know anything about the operation of the headsets to be able
        8    to tell it to the jury, Mr. Barkow can speak to that.
        9             MR. TIGAR:  Your Honor, the first call, 1001X, we
       10    would like to know against whom it's being offered and for what
       11    purpose.  It is a call between Mr. Sattar and Mrs. Sattar in
       12    English on the 22nd of April, 1996, Recounting what Mr. Sattar
       13    found out -- we'd like to know that, so we would request an
       14    instruction.
       15             MS. BAKER:  Your Honor, Government Exhibit 1000 --
       16    withdrawn.
       17             Let me start by just saying, so that everyone
       18    understands the numbering and lettering system:  The audio
       19    recording itself for each call is the number without a letter.
       20    So 1001 is the recording itself which is contained on the DVD
       21    that is marked as 1000.
       22             The excerpted transcript 1001X, "X" is an excerpted
       23    transcript; "T" is a whole.  This call is being offered to
       24    prove the existence of the Count 2 conspiracy to kill and
       25    kidnap.  It's a call in which Sattar discusses with his wife
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        1    the fact that Mustafa Hamza -- who other evidence has shown and
        2    will show is one of the leaders of the Islamic group -- Mustafa
        3    Hamza announced that the Islamic group was going to kidnap
        4    Americans until the sheikh -- meaning Omar Abdel Rahman -- is
        5    released.  So this is evidence offered to prove the existence
        6    of the Count 2 conspiracy.
        7             And, as the government has argued previously, because
        8    the government needs to prove the Count 2 conspiracy in order
        9    to prove Counts 4 and 5, we request that any limiting
       10    instruction take that into consideration.
       11             MR. RUHNKE:  I believe that your Honor has dealt with
       12    exactly that same situation before, and it has a limiting
       13    instruction, that this is offered not against Mr. Yousry or
       14    Ms. Stewart, but to prove the Count 2 conspiracy only and
       15    should not be considered as evidence against Mr. Yousry or Miss
       16    Stewart.  It's much the same issue in the context of the Sattar
       17    searches.  We discussed that at length.
       18             THE COURT:  Yes.
       19             MR. PAUL:  Your Honor, just so I understand, is it
       20    your Honor's intention to read a limiting instruction before
       21    each and every transcript as it is read as to how the jury can
       22    formulate and apply these transcripts to which count and which
       23    defendant?  Because if so, on behalf of Mr. Sattar, we will
       24    object.
       25             THE COURT:  Well, I asked the parties centrally what
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        1    instructions they wanted or sought with respect to these calls,
        2    and worked on the instructions with respect to the calls before
        3    lunch.  No one raised an issue with respect to this with me
        4    before lunch.  I'm -- or indeed, up until now.  Let's -- and so
        5    the issues are -- the issue that was raised by Mr. Tigar and
        6    averred to by Mr. Ruhnke is the question of, quote, relevance,
        7    or against whom the exhibit -- against whom the conversation is
        8    offered.  And as to that, the government essentially says
        9    it's -- as I understand it -- offering it as to all of the
       10    defendants.  The reason that it's offering it as to all of the
       11    defendants is it goes toward the background and context of the
       12    Count 2 conspiracy, and -- first.
       13             And, second, the existence of the Count 2 conspiracy
       14    is part of the proof with respect to Defendants Ms. Stewart,
       15    Mr. Yousry, with respect to Counts 4 and 5.  And that's true.
       16    I went back and looked at Ms. Stewart's proposed instruction,
       17    for example, with respect to Count 5, and there's a difference
       18    between the -- Ms. Stewart's proposed instruction and the
       19    government's proposed instruction as to whether the element of
       20    the offense is preparation for or the actual violation of --
       21    preparation or the actual conspiracy to kill and kidnap.
       22             But in any event, the evidence under either
       23    instruction is relevant to both Ms. Stewart and Mr. Yousry.
       24    And there comes a point where, for example, the defendants
       25    could not reasonably argue, you know, you can't consider any
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        1    evidence of the Count 2 conspiracy against us because it's
        2    being offered for the -- it goes toward evidence of the Count 2
        3    conspiracy.  If that were right, at the end of all of the
        4    evidence, the defendants could say there's no evidence of a
        5    Count 2 conspiracy against us.  That's been offered against us.
        6    And then point to the elements of the offense in Counts 4 and 5
        7    and say, No evidence.
        8             So it is true that evidence of a Count 2 conspiracy is
        9    relevant to Ms. Stewart and to Mr. Yousry.  I give careful
       10    instructions when asked, and sometimes even when not asked,
       11    with respect to everything that comes before me.  And I
       12    resolved the issues with respect to the Sattar search, and
       13    there was agreement with respect to those instructions with
       14    respect to the Sattar search.
       15             Now, these telephone calls.  To the extent that the
       16    argument is relevance or to what does it go, the government
       17    says it goes toward the Count 2 conspiracy, which is relevant
       18    to all of the defendants.  That I explained in somewhat more
       19    detail.
       20             MR. RUHNKE:  That's really not right.
       21             THE COURT:  I'm sorry?
       22             MR. RUHNKE:  That's really not right.  The Count 2 --
       23    the evidence regarding Count 2 becomes relevant to the
       24    defendants Yousry and Stewart only at the moment that the jury
       25    determines beyond a reasonable doubt that the conspiracy charge
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        1    in Count 2 actually existed.  So that in its coming in for --
        2    as an element of, in a sense, Counts 4 and 5 conspiracy, if the
        3    jury doesn't find that Count 2 exists, none of that evidence
        4    would ever have been admissible against Ms. Stewart or
        5    Mr. Yousry.  That's the same way we resolved this issue when it
        6    came up in exactly the same context in the results of the
        7    search of Mr. Sattar's home.  There's a deja vu quality to the
        8    argument:  The government said the same thing; we're saying the
        9    same thing.  Some of these conversations will be admissible,
       10    the government will argue, against all defendants and no
       11    limiting instruction will be required.  But some won't.
       12             And when the conversation is not admissible against my
       13    client -- first, I'm obligated to request a limiting
       14    instruction.  I'm obligated.  That's the fair way of treating
       15    this evidence when it comes to my client.  And before we broke
       16    for lunch, the issue was:  What is the global instruction we're
       17    going to be giving the jury on how to handle these tapes?  Not
       18    what tape was admissible with what defendant -- what defendant,
       19    what tape?
       20             I don't think it's fair to say that we hadn't thought
       21    about this issue at all.  It depends on what's the first thing
       22    that came through their offer, and who's it against.  That's
       23    the government's proffer.
       24             MS. BAKER:  Your Honor, the government indicated
       25    sometime ago that it intended to present the telephone call
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        1    evidence chronologically, and the defendants have known the
        2    universe of calls for some time.  And chronologically, this
        3    call is the earliest call, and the defendants for sometime have
        4    had various full and excerpted versions of the transcripts of
        5    all of these calls.  So objections like this that go to the
        6    content of the call and how that content can be used by the
        7    jury could certainly have been raised prior to this moment.
        8             On merits, the government believes that your Honor's
        9    explanation a few moments ago was exactly correct.  And
       10    whatever instruction was given previously, the law is as your
       11    Honor has just stated it.
       12             The government cannot prove Counts 4 and 5 without
       13    proving preparation for or the existence of the Count 2
       14    conspiracy.  And so the government submits that no limiting
       15    instruction is necessary here, but if any instruction were to
       16    be given, that it would be sufficient not to single out
       17    defendants by name, but to say, with respect to this one
       18    particular call, that this call is offered as evidence with
       19    respect to Count 2.  That would be sufficient at this point,
       20    and then later, when the Court gives the jury its overall set
       21    of instructions regarding the charges, it will become clear to
       22    the jury that they must find preparation for or the existence
       23    of the Count 2 conspiracy in order to find Counts 4 and 5.
       24             THE COURT:  That was in fact an alternative that was
       25    offered by Mr. Ruhnke at one time.  1001 is offered with
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        1    respect to the Count 2 conspiracy.
        2             MR. RUHNKE:  Yes?  I didn't know if you were looking
        3    at me or Ms. Baker.
        4             THE COURT:  No.  Ms. Baker suggests as an
        5    instruction -- this is offered with respect to the Count 2
        6    conspiracy.
        7             MR. RUHNKE:  It is offered with respect to the Count 2
        8    conspiracy, but what does that tell the jury?  Your Honor says
        9    this is a suggestion I made earlier.  I accept that, I probably
       10    did.  I'm not sure what the context is.  I'll certainly accept
       11    that at some point I referred to Count 2, but if you were to
       12    deliver that limiting instruction to the jury and say, Ladies
       13    and gentlemen, please tell me what that means to you as you
       14    listen to this evidence -- they wouldn't have a clue.
       15             The answer is that it's admissible against -- it's not
       16    admissible against Mr. Yousry or Ms. Stewart.  And that's a
       17    fact.  That conversation is not going to make evidence against
       18    them.  It goes to proof of the Count 2 conspiracy.  Mr. Yousry
       19    or Ms. Stewart are not named in Count 2.
       20             THE COURT:  But the government is required to prove
       21    that Count 2 -- the preparation for or the actual Count 2
       22    conspiracy as part of the proof with respect to Counts 4 and 5.
       23    So --
       24             MR. RUHNKE:  I agree.
       25             THE COURT:  So the proof of the Count 2 conspiracy
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        1    cannot be excluded from evidence with respect to Mr. Yousry and
        2    Ms. Stewart.
        3             MR. RUHNKE:  I agree.
        4             THE COURT:  But if that's true, then the instruction
        5    cannot be correct, that it cannot be considered against them.
        6             MR. RUHNKE:  It would be a much more difficult
        7    limiting instruction to craft if we had been severed and the
        8    government was setting out to prove count -- prove a conspiracy
        9    in which none of the defendants are named.
       10             THE COURT:  If you had been severed, there would be no
       11    instruction.  The evidence would come in against both
       12    defendants because the evidence is relevant against both
       13    defendants, because the proof of the Count 2 conspiracy is
       14    relevant to Counts 4 and 5.
       15             MR. RUHNKE:  Your Honor, respectfully, the evidence
       16    would not come in against both defendants.  If we had been
       17    severed, your Honor would have to craft some kind of
       18    instruction which would say, Although the defendants before you
       19    are not charged with participating or being a member of a
       20    conspiracy to kill and kidnap in Egypt, it is the government's
       21    duty to establish to your satisfaction beyond a reasonable
       22    doubt that such a conspiracy did exist, and if you ever get to
       23    that point, the fact that the conspiracy existed becomes
       24    relevant to Counts 4 and 5.
       25             THE COURT:  But the jury would then hear all of that
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        1    same evidence and they would hear it in the case solely against
        2    Ms. Stewart and Mr. Yousry.
        3             MR. RUHNKE:  I'm not agreeing that they would hear it.
        4    They're going to hear it in this case as well.  However, in
        5    this case there is a Count 2 conspiracy.
        6             THE COURT:  Hold on.  They would hear it in a case
        7    solely against Ms. Stewart and Mr. Yousry and they would hear
        8    it because there is a Count 2 conspiracy and because proof of
        9    the Count 2 conspiracy is relevant to Ms. Stewart and
       10    Mr. Years.  So --
       11             MR. RUHNKE:  This may be a quarrel of words.  The
       12    existence, ultimate proof of the existence of a Count 2
       13    conspiracy may become relevant at some point as a subelement of
       14    Counts 4 and 5.  Not the complete elements of 4 and 5, but as
       15    subelement of Counts 4 and 5.  Proof of Count 2 does not equate
       16    to proof of Counts 4 and 5, certainly.  Because Count 2 is
       17    established doesn't mean therefore they are guilty of Counts 4
       18    and 5.  Obviously.
       19             THE COURT:  Only -- it's only part of the evidence
       20    that the government would have to prove and admit against
       21    Ms. Stewart and Mr. Yousry.
       22             MR. RUHNKE:  I'm quarreling with the words "admit
       23    against".  It's proof of an event, which if proved -- the
       24    evidence -- take the 1001 in which Mr. Sattar has a
       25    conversation with his wife where his wife says she read
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        1    something in the newspaper about some guy saying something.
        2    And the guy is saying, Let's kidnap Americans until the sheikh
        3    is released.  That's what I read in the newspaper.  That's what
        4    the newspaper is reporting.  I'm obviously paraphrasing it to
        5    make it more hypothetical than it is.
        6             At a separate trial, the jury would -- it would ill
        7    serve the jury for them to think that Ms. Stewart and
        8    Mr. Yousry are to be held liable as coconspirators for that
        9    conversation, because that wouldn't be the case.  That would be
       10    an independent piece of evidence which the government is using
       11    to attempt to prove up Count 2 as actually existing.  It would
       12    not be evidence that could be used against Mr. Yousry or Miss
       13    Stewart unless and until they found that Count 2 existed and
       14    then they wouldn't really be using that evidence against them,
       15    they'd be using it to prove Count 2.  And a function of Count 2
       16    is it becomes, as I said, a subelement of the charges contained
       17    in 4 and 5.  It is under no circumstances ever evidence that's
       18    admissible as against Ms. Stewart and Mr. Yousry.  It would
       19    have to come in at a separate trial.  The jury would have to be
       20    given a limited instruction at a separate trial as well.
       21             So why are you giving this evidence when the
       22    government -- the government shouldn't be surprised and the
       23    representatives of the Court should not be either that on a
       24    piece of evidence by evidence by evidence basis, there's been a
       25    lot of evidence that's been admitted for limited purpose, and
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        1    that will continue to be the case with regard to the tape
        2    recordings.
        3             THE COURT:  What is your proposal?
        4             MR. RUHNKE:  My proposal is the evidence here is
        5    admissible only on the charges contained in Count 2 and should
        6    not be considered as to Ms. Stewart or Mr. Yousry.  That's my
        7    proposal.
        8             THE COURT:  Government?
        9             MS. BAKER:  Your Honor, that simply misstates the law.
       10    The first part of it is accurate, which is that the evidence is
       11    offered in connection with Count 2; but the latter part of it,
       12    that it is not admissible against Mr. Yousry and Ms. Stewart,
       13    is simply inaccurate for the reasons your Honor was just
       14    explaining.
       15             Your Honor told the jury during jury selection, and I
       16    believe again in preliminary instructions, which defendants
       17    were charged in which counts.  Your Honor will explain that to
       18    the jury in detail at the end of the case, and so at this point
       19    in the trial, so as not to embark now on those complicated
       20    instructions, we submit that it is most legally correct and
       21    accurate and sufficient to simply instruct them that this
       22    evidence is offered in connection with Count 2 and not say
       23    anything about which particular defendants it therefore is
       24    offered against and not against.
       25             The only other thing I would add, in the middle of
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        1    this colloquy I was reminded by my colleagues that actually
        2    this evidence was also being offered in support of Count 3,
        3    which is the charge of solicitation of crimes of violence
        4    against Mr. Sattar.  And so we would amend our request that if
        5    the Court is going to give an instruction, that the instruction
        6    be that this particular call is offered with respect to
        7    Counts 2 and 3.
        8             THE COURT:  All right.  I will give an instruction
        9    that is offered with respect to Counts 2 and 3, which I believe
       10    is the -- the legally correct instruction.
       11             And if the parties -- and I will say, you know, I've
       12    explained the different conspiracies alleged in this case.  And
       13    I will explain it again in final instructions, the different
       14    charges in this case.  And I will explain it to them again in
       15    final instructions.
       16             If anyone wants me at this point to repeat the charges
       17    on the individual conspiracies, I will just tell them that this
       18    is offered in connection with the conspiracy charge in Count 2
       19    and count -- with the charges in Counts 2 and 3.
       20             MR. RUHNKE:  Your Honor -- your Honor has obviously
       21    objected to the requests we've made and I would rest on that.
       22             THE COURT:  All right.  Anyone else want to be heard?
       23    What about after we get through 1001?
       24             MR. RUHNKE:  Your Honor, I mean, the government
       25    certainly has a position as to which transcripts it's offering
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        1    as to which defendants.  And where they're being offered --
        2             THE COURT:  I mean, rather than taking another break
        3    after we get through 1001.
        4             MR. RUHNKE:  I agree with that.
        5             THE COURT:  -- I'm raising what I should tell the jury
        6    with respect to what comes after 1001, and what are the next
        7    transcripts?
        8             MR. RUHNKE:  Your Honor, we are not in a position to
        9    know who the government is offering these against, frankly.
       10    We've been given transcripts -- we have been given
       11    translations; we've been dealing with them for months.  And if
       12    the government stands up and says, This is offered against all
       13    three defendants, which we've never had an opportunity really
       14    to work out, we might object and we might not object.  It's --
       15    I don't have any -- I mean, there's nothing that's gone on the
       16    floor that has parsed out this kind of a limitation, at least
       17    not that I remember.  I'm not saying it couldn't have happened
       18    in the past, but I can't remember it happening.
       19             THE COURT:  Well, you know, sufficient unto the day,
       20    we can get through 1001, and I've explained the instruction I
       21    would give on 1001:  That it's offered in connection with
       22    Counts 2 and 3.  And my question is, do we get to any of the
       23    other transcripts today or not?  Or do we call it a day after a
       24    1001 and finish the day with reading other documents?  And then
       25    spend the rest of the time, if the parties wish, going over the
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        1    next series of transcripts if there are requests for any
        2    limiting instructions?
        3             I do have some -- I mean, I do have some appreciation,
        4    sympathy, for the arguments on both sides.  I mean, people saw
        5    the transcripts coming; they knew the order they were going to
        6    be done.  If there were requests for limiting instructions that
        7    I would have to rule on, I would have hoped that they would be
        8    brought to my attention before we come in after lunch ready to
        9    put on headphones and begin to listen.
       10             So my question now is, the next -- after 1001, the
       11    next tapes were going to be in Arabic, right?
       12             MR. RUHNKE:  Your Honor, it's my understanding --
       13    maybe the government can tell me where I'm wrong -- that the
       14    next series of tapes in large numbers are admissible only or
       15    offered only on the Counts 2 and 3 conspiracies.
       16             No?  All right.  The government is correcting me.
       17             MS. BAKER:  No, your Honor.  In fact, the government's
       18    position is that the next several calls, 1002, 1003, 1004, are
       19    offered for, among other purposes, the Count 1 conspiracy in
       20    which all three defendants were charged, and therefore never
       21    offered against all defendants -- and I don't mean to say that
       22    they're offered only for Count 1, but including for Count 1,
       23    and therefore no limiting instruction would be appropriate with
       24    respect to those three calls.
       25             THE COURT:  1002, three and four?
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        1             MS. BAKER:  Correct.  And your Honor, we believe that
        2    that will be true with respect to the overwhelming majority of
        3    the remaining calls.
        4             MR. RUHNKE:  Then perhaps what the government could do
        5    is identify for all of us those conversations it is not
        6    offering as to all three defendants, if that's a much smaller
        7    number.  And we can look at them.  I mean, I'm not saying this
        8    took us by surprise, because everyone knew the information as
        9    stated.  For example, we are dealing with the Sattar searches.
       10    We went through a process.  We should perhaps have gone through
       11    the same process with the tapes.  And to the extent the defense
       12    is at fault, I apologize.
       13             THE COURT:  Never necessary to apologize, Mr. Ruhnke.
       14             MR. RUHNKE:  The alternative would be to just sort of
       15    let this happen, and if there are limited purposes, we have an
       16    obligation to defend against that.
       17             THE COURT:  How long is 1001?
       18             MS. BAKER:  Your Honor, 1001 is very, very brief.
       19    Playing it and following along will take maybe a minute or
       20    less.  I mean the transcript is only about one page long.
       21             THE COURT:  Well, the representation is that 1002,
       22    1003, 1004, are offered against all defendants.  1001 is
       23    offered with respect to Counts 2 and 3.  1002, three and four
       24    are offered with respect to all defendants.
       25             Now, if there is -- if you want, if you want more time
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        1    or you just -- there's a stipulation that has to be read with
        2    respect to the other translator.
        3             MR. MORVILLO:  Your Honor, there are three
        4    stipulations.  There's also a little bit more of the Sattar
        5    search evidence we wanted to read before we started with the
        6    transcripts.  Maybe a paragraph.  Not much.  I don't want to
        7    overstate it.  Display it to the jury.
        8             MS. BAKER:  Right, and then the remaining Sattar
        9    search evidence is the rather quick paging through on the
       10    display of two exhibits.  Maybe that will take, I don't know,
       11    five or 10 minutes.  And then the reading of the document that
       12    is only, as indicated, a page long.
       13             So although there is some other material to be
       14    covered, we don't think that that other material we just
       15    enumerated combined with Government Exhibit 1001 would take the
       16    remainder of the day.
       17             THE COURT:  I'm not suggesting -- just taking us to
       18    the next break.
       19             MR. MORVILLO:  I'm not confident it would do that
       20    either, your Honor.
       21             THE COURT:  I'm sorry?
       22             MR. MORVILLO:  I'm not confident it would do that
       23    either.
       24             THE COURT:  Oh, sure, it will.  I can call the next
       25    break.
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        1             MR. MORVILLO:  So ordered.
        2             THE COURT:  And -- because, there's -- there are the
        3    stipulations, the remainder of the Sattar exhibits, the
        4    instruction with respect to the tapes, and playing the first
        5    tape, before we go to a break to consider the other tapes.  And
        6    defendants are wanting the break, so before we go to 1001, we
        7    really should go to a break.
        8             MR. RUHNKE:  In terms of time, your Honor, I'm looking
        9    at 1002, that's 35 pages long.  So I don't know how much more
       10    we'll get through than that today.
       11             THE COURT:  All right.  I'm certainly also prepared to
       12    deal at the break if necessary with the remaining documents
       13    from the Sattar search, also.  So let's -- you haven't passed
       14    out these to the jury yet.
       15             MR. BARKOW:  They are, your Honor -- they're sitting
       16    on their chairs.
       17             THE COURT:  This just modulates the volume.
       18             MR. BARKOW:  Only two things they need to know, the
       19    ball has to be facing outwards.  And they're all off right now,
       20    and the knob modulates the volume.  But they're all in the off
       21    position now, so when the jurors start, they won't be too loud
       22    for them.  And then they can turn it up as loud as they need.
       23             THE COURT:  All right.
       24             MR. MORVILLO:  Your Honor, just a matter of logistics,
       25    when I'm finished reading the stipulations I'm going to be
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        1    offering into evidence the excerpted transcripts from the calls
        2    prepared by the two language specialists.  It's a very, very
        3    long list of calls.  I'm happy to read each one individually --
        4    that will take some time -- but at the same time, I'm also
        5    prepared to just offer the "X" exhibits that correspond to the
        6    key exhibits that the witnesses testified with respect to and
        7    with respect to the stipulation that's going to be read.
        8             If the Court has a preference with respect to that,
        9    I'm happy to oblige.
       10             THE COURT:  I don't have a preference so long as the
       11    record is clear.  And I think you may have to read the numbers
       12    to make the record clear as to what's being offered and
       13    admitted.
       14             MR. MORVILLO:  I'm happy to do that, your Honor.  I
       15    just didn't want you to think that I was wasting time.
       16             THE COURT:  No.  I'll admit them subject to any
       17    requests for any appropriate limiting instructions that I may
       18    be asked to give.
       19             Okay.  Let's call in the jury.
       20               (Continued on next page)
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        1               (In open court)
        2             THE COURT:  Please be seated, all.
        3             Good afternoon, ladies and gentlemen.
        4             JURORS:  Good afternoon.
        5             THE COURT:  Good to see you.  You've got some
        6    earphones on your chair, and you can just hold them for the
        7    moment.  I will explain to you a little later on in the
        8    afternoon how to use those earphones right before you will have
        9    an opportunity to use them.  So at this point, just hold onto
       10    them.  All right?
       11             Ms. Baker.
       12             MS. BAKER:  Your Honor, at this point the government
       13    would like to continue with the publication of some of the
       14    evidence from the search of Sattar's residence.
       15             THE COURT:  All right.
       16             MS. BAKER:  We would ask to begin by displaying to the
       17    jury one page at a time, government Exhibit 2081.
       18             THE COURT:  All right.  And ladies and gentlemen, this
       19    is subject to the limiting instructions that I had given you
       20    before lunch:  This evidence is being offered only against
       21    Mr. Sattar and not against Ms. Stewart or Mr. Yousry; and it's
       22    being offered with respect to the knowledge, intent and the
       23    state of mind of Mr. Sattar.
       24             And 2072 is also being offered with respect to
       25    background and context.
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        1             Okay?
        2             MS. BAKER:  This is the top portion of the first page
        3    of Government Exhibit 2081.  The original exhibit is individual
        4    business cards, your Honor, but this is a color copy for
        5    presentation.
        6             (At this point, Government Exhibit 2081, received in
        7    evidence, was displayed to the jury)
        8             MS. BAKER:  And this is the back of the same page.
        9             And this is the back of that page.
       10             And this is the back of that page.
       11             MR. DEMBER:  Excuse me just one moment.
       12               (Off the record discussion)
       13             MS. BAKER:  Sorry, the last page of Government
       14    Exhibit 2081.
       15             Your Honor, we'd ask to exhibit now in the same manner
       16    Government Exhibit 2072.
       17             THE COURT:  Okay.  I've already given limiting
       18    instructions regarding 2072.
       19             MS. BAKER:  I'll need to change pages on this.  The
       20    original document is one long continuous strip of paper.
       21             THE COURT:  Okay.
       22             MS. BAKER:  I have to show it on the ELMO.
       23             THE COURT:  Okay.
       24             (At this point, Government Exhibit 2072, received in
       25    evidence, was displayed to the jury)
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        1             MS. BAKER:  Your Honor, that was the first document
        2    within 2072.  There are a continuous set of documents.  I will
        3    now continue with the others.
        4             THE COURT:  Okay.
        5               (Continued on next page)
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        1             MR. BAKER:  Your Honor, that completes that exhibit,
        2    and, finally, we would ask permission to display and read to
        3    the jury Government Exhibit 2062.
        4             THE COURT:  All right.  I will give limiting
        5    instructions on this exhibit, ladies and gentlemen, the same
        6    limiting instructions.
        7             (At this point, Government Exhibit 2062 in evidence
        8    was read to the jury by Ms. Baker)
        9             THE COURT:  All right.
       10             MR. MORVILLO:  Your Honor, at this time I would offer
       11    into evidence three stipulations, Government Exhibit 1000S,
       12    Government Exhibit 1313, and Government Exhibit 1314.
       13             THE COURT:  All right.
       14             No objection, Government Exhibits 1000S, 1313 and 1314
       15    are received in evidence.
       16             (Government's Exhibits 1000S, 1313 and 1314 received
       17    in evidence)
       18             MR. MORVILLO:  May I read and publish these exhibits
       19    to the jury, your Honor?
       20             THE COURT:  Yes.
       21             (At this point, Government Exhibit 1000S in evidence
       22    was read to the jury by Mr. Morvillo)
       23             MR. MORVILLO:  If I may, your Honor, read the
       24    attachment.
       25             THE COURT:  All right.
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1             (Attachment read)
        2             MR. MORVILLO:  May I read Government Exhibit 1313,
        3    your Honor?
        4             THE COURT:  Yes.
        5             (At this point, Government Exhibit 1313 in evidence
        6    was read to the jury by Mr. Morvillo)
        7             MR. MORVILLO:  May I read Government Exhibit 1314,
        8    your Honor?
        9             THE COURT:  Yes.
       10             (At this point, Government Exhibit 1314 in evidence
       11    was read to the jury by Mr. Morvillo)
       12             MR. MORVILLO:  Your Honor, at this time the government
       13    would offer into evidence Government Exhibit 1000, Government
       14    Exhibit 1015 and the following X transcripts:  1001X, 1002X,
       15    1009X, 1010X, 1011X, 1012X, 1016X, 1017X, 1022X, 1023X, 1025X,
       16    1027X, 1028X, 1029X, 1030X, 1032X, 1033X, 1035X, 1044X, 1046X,
       17    1047X, 1049X, 1051X,1054X, 1060X, 1061X, 1062X, 1067X, 1092X,
       18    1093X, 1099X, 1102X, 1104X, 1120X, 1121X, 1122X, 1123X, 1124X,
       19    1125X, 1126X, 1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X,
       20    1134X, 1135X, 1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X,
       21    1167X, 1169X, 1179X, 1180X, 1181X, 1183X, 1184X, 1188X, 1189X,
       22    1192X, 1194X, 1199X, 1200X, 1205X, 1212X, 1214X, 1217X, 1226X,
       23    1228X, 1229X, 1003X, 1004X, 1005X, 1006X, 1007X, 1008X, 1013X,
       24    1014X, 1026X, 1031X, 1045X, 1052X, 1053X, 1069X, 1071X, 1088X,
       25    1089X, 1090X, 1091X, 1094X, 1100X, 1101 X, 1111X, 1112X, 1117X,
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                                      (212) 805-0300
        1    1119X, 1136X, 1143X, 1144X, 1152X, 1161X, 1168X, 1170X, 1182X,
        2    1186X, 1190X, 1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X,
        3    1222X, 1223X, 1224X, 1227X and 1230X.
        4             THE COURT:  All right.
        5             MR. TIGAR:  Is counsel done with the list?
        6             MR. MORVILLO:  Yes, I am.
        7             MR. TIGAR:  I wanted to make sure that the record is
        8    clear with respect to our position on all of this and that I
        9    need not say more.
       10             THE COURT:  All right.  We can certainly take it up at
       11    the break just to make sure that I am clear.
       12             Those exhibits are all received in evidence such as
       13    has been given with limiting instructions.
       14             (Government's Exhibits 1001X, 1002X, 1009X, 1010X,
       15    1011X, 1012X, 1016X, 1017X, 1022X, 1023X, 1025X, 1027X, 1028X,
       16    1029X, 1030X, 1032X, 1033X, 1035X, 1044X, 1046X, 1047X, 1049X,
       17    1051X,1054X, 1060X, 1061X, 1062X, 1067X, 1092X, 1093X, 1099X,
       18    1102X, 1104X, 1120X, 1121X, 1122X, 1123X, 1124X, 1125X, 1126X,
       19    1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X, 1134X, 1135X,
       20    1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X, 1167X, 1169X,
       21    1179X, 1180X, 1181X, 1183X, 1184X, 1188X, 1189X, 1192X, 1194X,
       22    1199X, 1200X, 1205X, 1212X, 1214X, 1217X, 1226X, 1228X, 1229X,
       23    1003X, 1004X, 1005X, 1006X, 1007X, 1008X, 1013X, 1014X, 1026X,
       24    1031X, 1045X, 1052X, 1053X, 1069X, 1071X, 1088X, 1089X, 1090X,
       25    1091X, 1094X, 1100X, 1101 X, 1111X, 1112X, 1117X, 1119X, 1136X,
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        1    1143X, 1144X, 1152X, 1161X, 1168X, 1170X, 1182X, 1186X, 1190X,
        2    1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X, 1222X, 1223X,
        3    1224X, 1227X and 1230X received in evidence)
        4             MR. TIGAR:  Thank you, your Honor.
        5             THE COURT:  Okay.  All right.
        6             MR. MORVILLO:  Your Honor, the government would at
        7    this time ask for permission to play Government Exhibit 1001
        8    and hand out Government Exhibit 1000 or display for the jury
        9    Government Exhibit 1001X.
       10             THE COURT:  Okay.
       11             Ladies and gentlemen, let me give you an instruction.
       12             The government has offered evidence in the form of
       13    recordings of telephone calls, specifically Government Exhibits
       14    1000 and 1015 which are now in evidence.  You have heard
       15    disputes over the authenticity and accuracy of the recording.
       16    Therefore, I caution you that you should scrutinize this
       17    evidence with care.
       18             The reliability and weight of this evidence, as with
       19    all issues of fact, is for you, the jury, to determine.  Some
       20    of the recordings contain portions that are in English.  The
       21    government will be permitted to display documents which it
       22    prepared containing the government's interpretation of what
       23    appears on the recordings which have been received as evidence.
       24    Those are displayed as an aid or guide to assist you in
       25    listening to the recordings which are in evidence.  However,
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        1    the typed documents are not in and of themselves evidence.
        2    Therefore, when the recordings are played I advise you to
        3    listen very carefully to the recordings themselves.  You alone
        4    should make your own determination of what appears on the
        5    recording based on what you heard.  If you think you hear
        6    something differently from what appears on the transcript, then
        7    what you hear is controlling.  Let me say again, you, the jury,
        8    are the sole judges of the facts.
        9             Some portions of the recordings are in Arabic.  It was
       10    necessary for the government to obtain translations of those
       11    conversations into English so that you, the jury, could
       12    understand the recordings.  The transcripts or portions of
       13    transcripts of those conversations that are in Arabic embody
       14    the testimony of the Arabic translators as to what appears in
       15    the recordings.  These transcripts were admitted into evidence.
       16    To the extent that you accept or reject the testimony of those
       17    witnesses, you may accept or reject the transcripts themselves
       18    of the Arabic conversations.
       19             Remember that the jury is the ultimate fact finder
       20    and, as with all evidence, you may give the transcripts such
       21    weight, if any, as you believe they deserve.
       22             Now, at this point, ladies and gentlemen, a recording
       23    will be played and you will be asked to listen to the
       24    recording, and I believe that the recording is in English and
       25    so you should take my instruction with respect to transcripts
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        1    of what is in English being an aid to you in listening to the
        2    recording which is in evidence.  And to listen you should put
        3    on the earphones when the recording is played.  And there is a
        4    little dot on the front of the earphones.  You should make sure
        5    that that dot is pointing out so that you can receive what
        6    comes through the earphones, and there is a little knob on the
        7    earphones in which you can adjust the volume.  It should be
        8    turned down now so that you don't hurt your ears, but you can
        9    turn it up if you think that it's necessary to do that.
       10             All right.
       11             MR. BAKER:  Your Honor, I believe the headphones may
       12    actually be in the off position at the moment and so the jurors
       13    may need to turn it up just a little bit to turn it on by the
       14    volume.  Also, before we start playing the first recording of
       15    the Exhibit 1001, may we put the transcript on the screen and
       16    read the header portion of the transcript to the jury which is
       17    the identifying information of the call?
       18             THE COURT:  Yes.
       19             And I should also add one other thing, ladies and
       20    gentlemen.  I have instructed you with respect to the various
       21    charges in the case and I have reviewed with you in the course
       22    of the preliminary instructions that I gave you the charges by
       23    counts in the indictment, and I explained that the indictment
       24    contains simply charges.  The indictment isn't evidence of
       25    anything and I explained and emphasized to you that the
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        1    indictment is not evidence of anything.
        2             In order to keep track of certain evidence I instruct
        3    you that the first recording, 1001, is being offered with
        4    respect to Counts 2 and 3 of the indictment and, again, I will
        5    give you further instructions in my final instructions to you.
        6             All right.
        7             MR. BAKER:  May we display the top of the first page
        8    of Government Exhibit 1001X?
        9             THE COURT:  Yes.
       10             MR. BAKER:  Call primarily in English.
       11             Monitor number:  4.
       12             Line ID:  7184423513.
       13             Session start:  04/22/1996, 10:03:54.
       14             Call direction:  Unknown.
       15             Contact ID:  Blank.
       16             Audio file name:  19960422 underscore 100354
       17    underscore 17184423513.
       18             Participants:  Sattar equals Ahmed Abdel Sattar.
       19             L. Sattar Lisa Sattar.
       20             Abbreviations:  (UI) equals unintelligible.  (PH)
       21    equals phonetic spelling.  Three dots equals an incomplete
       22    thought, and underscore equals spoken in Arabic.
       23             Your Honor, at this point if you would like to ask the
       24    jurors to put on their headsets we would then play the
       25    recording and follow or display the transcript as the recording
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        1    plays.
        2             THE COURT:  All right.
        3             Ladies and gentlemen, remember to turn on the
        4    headphones and if you can't hear just raise your hand right
        5    away and we will stop.
        6             (At this point Government Exhibit 1001X was played to
        7    the jury)
        8             THE COURT:  All right.
        9             Ladies and gentlemen, you can take your headphones off
       10    now, and at this point it's time for our mid-afternoon break
       11    for ten minutes.
       12             Please remember my continuing instructions.  Please
       13    don't talk about the case or anything to do with it.  Keep an
       14    open mind until you have heard all the evidence, I have
       15    instructed you on the law, and you have gone to the jury room
       16    to begin your deliberations.
       17             All rise please.
       18             Please following Mr. Fletcher to the jury room.
       19             (Jury left the courtroom)
       20             THE COURT:  Please be seated all.
       21             The first thing I wanted to raise was I wanted to make
       22    sure that there wasn't something missing when you stood up, Mr.
       23    Tigar, that --
       24             MR. TIGAR:  Nothing missing, your Honor.  But this was
       25    an offer in the presence of the jury of an exhibit to which I
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        1    had objected.  Your Honor had ruled out of the sight and
        2    hearing of the jury and I just wanted to make sure that there
        3    wasn't a piece of transcript around there that had me
        4    consenting to something to which I do not consent.
        5             THE COURT:  Okay.  But there are no objections that I
        6    didn't hear and rule on.  And the reason I raise that is there
        7    were stipulations with respect to excerpts and transcripts and
        8    I appreciate that I ruled with respect to the foundation issues
        9    this morning with respect to Government Exhibits 1000 and --
       10             MR. TIGAR:  1015.
       11             THE COURT:  And 1015.
       12             MR. TIGAR:  Yes, your Honor.  Those were included in
       13    the offer in the presence of the jury.  I am a little hard of
       14    hearing but I saw it on the screen and that is why I stood up.
       15             THE COURT:  Okay.
       16             MR. TIGAR:  Also, as we go through this process, as
       17    things develop we may have 106 things to play with respect to
       18    particular ones.  We may have some more of the considerations
       19    Mr. Ruhnke brought up about limiting instructions.  But the
       20    basic admissibility decision as far as Ms. Stewart and I and
       21    Ms. Shellow-Lavine are concerned we have been heard, you have
       22    ruled, and there it is.
       23             THE COURT:  Okay.
       24             MR. BAKER:  Your Honor, two things I wanted to
       25    address.  One thing that Mr. Tigar just said and I also wanted
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        1    to put one other thing on the record.
        2             With respect to completeness objections under Rule
        3    106, each of these excerpted transcripts that were just
        4    received had been provided to the defense specifically for the
        5    purpose of addressing any rule of completeness or translation
        6    issues relating to the transcripts.  They were provided and in
        7    certain instances the defense requested that additional
        8    portions be added.  They either were or there was back and
        9    forth negotiation and eventually a resolution was reached.  So
       10    I don't understand Mr. Tigar's claim again that there may be
       11    Rule 106 objections because the whole point was to have the
       12    process to resolve all of that before the excerpted transcripts
       13    were offered.
       14             The other matter I wanted to put on the record is at
       15    the end of the lunch break when all parties returned to the
       16    courtroom, I provided Mr. Tigar with a disk.  I don't recall
       17    whether it was CD or a DVD containing copies in the original
       18    Lockheed Martin format of approximately 150 audio files which
       19    are a significant portion of the universe of recordings that
       20    the government will be offering into evidence at this trial.
       21             THE COURT:  Okay.
       22             MR. TIGAR:  Number one, your Honor, I haven't made any
       23    objections that I haven't made.  When and if I do make them,
       24    which I don't anticipate would happen because we did have some
       25    discussions, I will make them.
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        1             THE COURT:  Okay.  I actually appreciate that.  I
        2    think -- "appreciate" in the sense of understanding.
        3             I took the 106 argument actually as a defense --
        4             MR. TIGAR:  It is an anchor to windward, your Honor.
        5             THE COURT:  I did think that you all had worked out
        6    the issues of completeness.  But if something comes up,
        7    something comes up.
        8             All right.
        9             MR. TIGAR:  Number 2, I have been tendered a disk by
       10    Ms. Baker.  It appears to bear the signature of Mr. Kerns.  I
       11    don't know what is on it but I accept the representation.  It
       12    says on it Lockheed Martin files.  It cannot, of course,
       13    contain the original Lockheed Martin files because those were
       14    destroyed.  But whatever it contains we will investigate it and
       15    we appreciate receiving it.
       16             THE COURT:  All right.
       17             Now, do the parties want to be heard on the next set
       18    of exhibits?
       19             MR. RUHNKE:  Just from the government as to who they
       20    are offering it against.
       21             MR. BAKER:  Your Honor, as I said earlier, the next
       22    three calls, which are reflected in the excerpted transcripts
       23    1002X, 1003X and 1004X are offered against all parties for
       24    various purposes, including as evidence of Count 1 in which all
       25    parties are charged.
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        1             MR. RUHNKE:  I certainly understand why it's offered
        2    on Count 1.  It discusses efforts to get communication back and
        3    forth to the sheikh so I have no objection to the instruction,
        4    but when Ms. Baker says it's offered for various purposes, is
        5    there some limitation that she has in her mind or is it simply
        6    offered as is?
        7             MR. BAKER:  No, it's offered generally.  I don't have
        8    any limiting purpose in mind.
        9             MR. RUHNKE:  That certainly will take us the balance
       10    of the afternoon and then some.
       11             MR. MORVILLO:  Actually, your Honor, it's a 34-page
       12    transcript.  Based on my assessment each page takes about a
       13    minute depending on how dense, maybe a minute and a half to
       14    read.  The government had intended to play a few moments of the
       15    Arabic recording prior to beginning to read.  It's possible
       16    that this could take 45 minutes to read.
       17             Would you like us to stop at 4:30 and continue
       18    tomorrow?
       19             THE COURT:  I do like to let the jury go at 4:30.  If
       20    we go a little longer than 4:30 we can pick up tomorrow but
       21    let's stop close to 4:30.
       22             Okay.
       23             All right.  See you shortly.
       24             (Recess)
       25             THE COURT:  Please be seated all.
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        1             Are we ready to bring in the jury?
        2             MR. MORVILLO:  Yes, your Honor.  I wanted to say in
        3    accordance with the court's prior ruling as to --
        4             MR. PAUL:  Mr. Sattar has no lawyer, so we probably
        5    should wait.
        6             THE COURT:  I am sorry.
        7             (Pause)
        8             THE COURT:  Okay, no problem, Mr. Fallick.  Nothing
        9    happened and Mr. Stern pointed out that you weren't here so,
       10    fine.
       11             MR. MORVILLO:  Your Honor, in accordance with the
       12    court's prior ruling with respect to the reading of portions of
       13    transcripts that are attributed to defendants, the government
       14    has here a paralegal from its office, Adam Forkner, and if he
       15    could come up and sit in the witness stand with the permission
       16    of the court.
       17             THE COURT:  All right.
       18             You should say before the jury "May I ask that Mr.
       19    Forkner from our office read part of the transcript."
       20             MR. MORVILLO:  Would you like me to specify which
       21    parts will be read by which people?
       22             THE COURT:  If you wish.
       23             MR. MORVILLO:  Okay, thank you.
       24             Are you ready to bring in the jury now?
       25             MR. MORVILLO:  Yes, your Honor.
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        1             THE COURT:  Okay.
        2             MR. MORVILLO:  While Mr. Fletcher is getting the jury,
        3    we have spoken to the parties and since this is a three-person
        4    telephone call, we would propose using the two podiums and the
        5    witness box.  We can pull this podium away from the jury rail.
        6    However, the microphone is not on.  I don't believe it's on.
        7             THE COURT:  Can't someone read two parts or else --
        8             MR. MORVILLO:  We can have somebody read from the
        9    table.
       10             THE COURT:  I don't want somebody from the table.
       11    Either one person or two people from that podium or that
       12    microphone would be just fine.  Okay?
       13             MR. MORVILLO:  Very well.
       14             (In open court; jury present)
       15             THE COURT:  All right, please be seated all.
       16             Mr. Morvillo.
       17             MR. MORVILLO:  At this time the government would
       18    request permission to play a portion of Government Exhibit 1002
       19    to the jury.  The call is in Arabic and, for the record, the
       20    government would also request permission to display for the
       21    jury the corresponding transcript, Government Exhibit 1002X.
       22             THE COURT:  All right.  And they won't be using the
       23    headphones?
       24             MR. MORVILLO:  The headphones for the first portion we
       25    play and after we play a few moments the government requests
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        1    permission to play the entirety of the transcript to the jury.
        2    Mr. Adam Forkner, a paralegal from our office, is sitting in
        3    the witness box and we would request that he read the
        4    attributions to Mr. Sattar.  I will read the attributions to
        5    Mr. Taha, and Mr. Dember will read the attributions to
        6    Mr. Al-Zayat.
        7             THE COURT:  Okay.
        8             MR. MORVILLO:  For the record, your Honor, this call
        9    is dated December 12, 1998 at 16:43:45 and the participants are
       10    Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa and Montasser
       11    Al-Zayat.
       12             THE COURT:  All right, ladies and gentlemen, please
       13    put on the headphones.
       14             (At this point, portions of Government Exhibit 1002X
       15    in evidence were played to the jury)
       16             (Continued on next page)
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        1             MR. MORVILLO:  Your Honor, may we?
        2             THE COURT:  All right.  Ladies and gentlemen, take
        3    your headphones off.  Remember, this is the first transcript
        4    which is from a recording in Arabic, and remember my
        5    instruction that the transcripts were portions of transcripts
        6    of those conversations that are in Arabic embodying the
        7    testimony of the Arabic translators as to what appears in the
        8    recordings.  These transcripts were admitted into evidence.  To
        9    the extent that you accept or reject the testimony of those
       10    witnesses, you may accept or reject the transcripts themselves
       11    of the Arabic conversations.  Remember that the jury is the
       12    ultimate fact-finder, and, as with all evidence, you may give
       13    the transcripts such weight if any as you believe they deserve.
       14             All right?
       15             MR. MORVILLO:  May we proceed, your Honor?
       16             THE COURT:  Yes.
       17             (At this point, Government Exhibit 1002, in evidence,
       18    was read into the record by Messrs. Dember, Morville and
       19    Forkner.)
       20             MR. MORVILLO:  Your Honor, the call shifts here a
       21    little bit so it would be a good time to break.
       22             THE COURT:  Ladies and gentlemen, I try to break with
       23    you at about 4:30.  It's about 4:30, so we'll break for the day
       24    and resume tomorrow at 9:30.
       25             Please, remember my continuing instructions:  Don't
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        1    look at or listen to anything about the case.  If you should
        2    see something, turn away.  Don't talk about the case.  Remember
        3    to keep open mind until you've heard all the evidence, I've
        4    instructed you on the law and you've gone to the jury room to
        5    begin your deliberations.
        6             Have a good evening.  I look forward to seeing you
        7    tomorrow.  All rise, please.
        8             Please follow Mr. Fletcher to the jury room.
        9               (Jury exits the courtroom)
       10               (Continued on next page)
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        1               (In open court; jury not present).
        2             THE COURT:  Please be seated.  You may step down.
        3             First, there is an outstanding motion in limine with
        4    respect to a witness.
        5             MS. BAKER:  Your Honor, if you're referring to the
        6    cooperating witness whose testimony the government proffered
        7    regarding the recordings, in light of your Honor's admission of
        8    the recordings this morning, the government does not intend to
        9    call that witness tomorrow, and we will advise the parties and
       10    the Court if and when we decide to call that witness in our
       11    direct case.
       12             At this point, we are going to wait and see how things
       13    progress in the direct case.  It may be that we end up not
       14    calling that witness in our direct case at all.
       15             THE COURT:  Okay.  That resolves that, at this point.
       16             The government should indicate the transcripts and
       17    calls that it expects to introduce tomorrow.  Have you done
       18    that already?
       19             MS. BAKER:  Your Honor, the government intends to
       20    proceed chronologically through the calls on the DVD marked as
       21    Government Exhibit 1000, and so all parties have a listing of
       22    the recordings on that DVD.  The list is Government
       23    Exhibit 1000L, so, generally speaking, we will be taking the
       24    calls in that order and everyone can just follow along on that
       25    list.
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        1             THE COURT:  And the next question that Mr. Ruhnke is
        2    going to ask is whether there are any limiting instructions
        3    that the government proposes with respect to the upcoming
        4    transcripts.
        5             MS. BAKER:  Your Honor, we will review the next number
        6    of transcripts this evening.  But as I indicated earlier,
        7    generally for calls at any point after the start of the Count 1
        8    conspiracy, which starts in 1997, the government is offering
        9    those calls generally without any limitation.
       10             THE COURT:  Okay.
       11             MR. TIGAR:  Perhaps this is an appropriate time, your
       12    Honor -- I know that the government considers Mr. Taha to be a
       13    conspirator in Count 1, and perhaps other counts.  Does the
       14    government offer Mr. Al-Zayyat as a conspirator in Count 1?
       15             MS. BAKER:  Yes, we do.  Indeed, generally, the
       16    various Islamic group leaders who will figure in these calls,
       17    that would include Mustafa Hamza, Salah Hashim, so on,
       18    Al-Zayyat, the government's view is that all of them are
       19    conspirators in the Count 1 conspiracy, and others in other
       20    conspiracies, but an overall theme in the case is that the
       21    various IG leaders wanted to know Sheikh Abdel Rahman's
       22    position with regard to initiative and other Islamic Group
       23    matters, and so because the focus of Count 1 was violating the
       24    SAMs and allowing Abdel Rahman to continue to function as one
       25    of the leaders of the Islamic Group, the government's position
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        1    is that all of these people are coconspirators in the Count 1
        2    conspiracy.
        3             MR. TIGAR:  We've had a lot of discussion in the case
        4    about Mr. Al-Zayyat.  Does the government -- and of course
        5    there were many people involved in dealing with him.  Does the
        6    government regard any American lawyers who have dealt with
        7    Mr. Zayyat directly as conspirators in the process that has
        8    just been described?  I think it's a fair question, because if
        9    they do, some of those lawyers may be reluctant to come here.
       10             THE COURT:  The parties are welcome to discuss that.
       11    It's plain from the allegations in the indictment that
       12    Ms. Stewart is an alleged coconspirator in Count 1, and it
       13    is -- it's not clear to me that until the issue gets raised
       14    with respect to specific evidence or specific transcripts
       15    coming up, something should be said on that basis.
       16             The defense raises the question that if that position
       17    were taken, that it could be discouraging presumably to a
       18    defense witness.  And so the parties are welcome to discuss
       19    that, but it's not clear to me that that has to be answered at
       20    this point.
       21             MR. TIGAR:  With respect, your Honor -- and I'll make
       22    this position:  It is clear to us.  I am shocked to hear that
       23    the government regards a respected human rights lawyer and
       24    well-known man of peace as a conspirator.  We'll get to that
       25    when we get to a hearing, because that's a bridge they will
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    have to try to cross.
        2             Your Honor retains authority under Federal Rule of
        3    Criminal Procedure 7 to compel the government to identify
        4    people.  You've declined up to now to exercise that authority.
        5    I stand here and tell your Honor that I am surprised by the
        6    Muntasir Al-Zayyat designation that I just heard for the first
        7    time, and I respectfully suggest -- no, I don't suggest at all.
        8    I renew my motion for a Bill of Particulars, limited, your
        9    Honor, to the question that I posed at the outset with respect
       10    to American lawyers.  I think it has to do with what we have to
       11    meet here.
       12             THE COURT:  All right.  Government?
       13             MS. BAKER:  As your Honor acknowledged in rulings
       14    earlier in the case, the function of a Bill of Particulars is
       15    to ensure that a defendant has sufficient evidence to
       16    adequately defend himself or herself against being placed in
       17    jeopardy for the second time on the same charges.  The
       18    defendants in this case have more than adequate information to
       19    meet that function of the Bill of Particulars, and there is no
       20    reason for the Court at this time to grant the relief that
       21    Mr. Tigar is seeking on behalf of Ms. Stewart.
       22             If and when the occasion presents itself, if and when
       23    the government seeks to offer statements by some other American
       24    lawyer as statements in furtherance of the conspiracy, the
       25    government will make the necessary proffer or argument to
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        1    establish the evidentiary predicate for the offer of that
        2    evidence.
        3             THE COURT:  Okay.
        4             MR. TIGAR:  I know the Court is not disposed to grant
        5    this motion, but may I just say that limiting the Bill of
        6    Particulars to double jeopardy really is a solecism unworthy of
        7    the government of the United States.  The 1966 amendment to
        8    Rule 7 made that clear.
        9             THE COURT:  Okay.  The renewed application is denied,
       10    and -- all right.
       11             That -- I believe -- the parties will have more than
       12    sufficient time to pursue the transcripts, and telephone calls.
       13             Do the parties want me to finish with the remaining
       14    five documents from the Sattar search at this point?
       15             MR. BARKOW:  Yes, your Honor, if your Honor is
       16    prepared to do so.  I would ask, I guess, since there's been
       17    correspondence on this over several days, which five in
       18    particular are the ones...?
       19             THE COURT:  I believe they're the only ones that are
       20    left open, are 2040, 2077, 2079, 2057, and 2070.
       21             MR. BARKOW:  Yes, your Honor, we would.
       22             THE COURT:  All right.  I'm prepared to rule.
       23             With respect to documents 2040, 2077 and 2079, these
       24    are all speeches of Omar Abdel Rahman.  It is unclear whether
       25    they were given -- it is unclear when they were given, but from
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        1    the text they appear to be before Sheikh Rahman was in prison.
        2    They were all found in the search of Mr. Sattar's premises.
        3    Only Miss Stewart and Mr. Yousry object on, among other
        4    grounds, that they are cumulative and irrelevant.
        5             I discussed these documents on the record with the
        6    parties last time that I discussed the documents.  The
        7    documents are relevant to Mr. Sattar's state of mind and to
        8    Omar Abdel Rahman's state of mind.  They are not cumulative
        9    because they are particularly relevant to Mr. Sattar's state of
       10    mind.  And there is no evidence that he was aware of the -- of
       11    all of the speeches of Sheikh Rahman which were introduced at
       12    the trial, although Ms. Stewart was aware of those speeches,
       13    and that was noted in the stipulation.
       14             The introduction of these speeches is not unfairly
       15    prejudicial to Miss Stewart or to Mr. Yousry.  However, in view
       16    of the objections raised by Ms. Stewart and Mr. Yousry, I will
       17    give a limiting instruction with respect to each of these three
       18    speeches.  And there is no basis to believe that the jury could
       19    not follow these instructions.
       20             With respect to these three speeches, the speeches
       21    would be subject to the following limiting instruction:
       22             These exhibits are admitted only against Mr. Sattar
       23    and not against Ms. Stewart or Mr. Yousry; they are admitted
       24    solely with respect to the knowledge, intent and state of mind
       25    of Mr. Sattar, and Omar Abdel Rahman.  And you may consider
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        1    them solely for that purpose.
        2             And I've also considered again Ms. Stewart's renewed
        3    application for a severance, and there is no basis for that
        4    application in connection with these three speeches.  There is
        5    nothing to believe that the jury cannot follow the -- these
        6    instructions.  There's no basis to believe that Ms. Stewart
        7    would be -- would suffer any prejudice at all from the
        8    introduction of those three speeches.
        9             The remaining two items then are 2057 and 2070.  2057
       10    is the so-called will, which includes calls to violence,
       11    including:  "Destroy their nation", "Tear them apart", "Ruin
       12    their economy", "Burn their companies", "Plunder their
       13    interests", "Sink their boats", "Bring down their airplanes",
       14    "Slaughter them on land, sea and air".  2070TA is a speech by
       15    Omar Abdel Rahman from prison urging jihad to free him.
       16             The documents are offered against all three
       17    defendants.  Only 2070TA is offered.  2070 TB is withdrawn, I
       18    believe.
       19             And as I said, only Ms. Stewart and Mr. Yousry object.
       20             With respect to 2057, the objections are on grounds of
       21    relevance and hearsay, and the objection to 2070A is on the
       22    grounds of relevance and 403.  The documents are plainly
       23    relevant.  They reflect Omar Abdel Rahman's intent and state of
       24    mind.  They're also relevant to Mr. Sattar's intent and state
       25    of mind.  There are calls for violence while Omar Abdel Rahman
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        1    is in prison as opposed to earlier calls for jihad.  To the
        2    extent that they predate the Count 2 conspiracy, they would be
        3    background to that conspiracy.  The fact that they relate to
        4    the Count 2 conspiracy would not make them irrelevant to
        5    Ms. Stewart and Mr. Yousry since proof of that conspiracy would
        6    be relevant to the charges in Counts 4 and 5.  The relevance is
        7    not outweighed by any danger of unfair prejudice.  Any power
        8    the evidence has comes from its relevance and not from an
        9    appeal to impermissible considerations.
       10             Finally, to the extent that the defendants have
       11    suggested that the evidence is barred by anything in Noto and
       12    Watts, there is no basis for those arguments.  However, the
       13    government does not offer these statements for the truth of
       14    anything that is said in those statements.  Therefore, while I
       15    will certainly listen to any other appropriate instructions
       16    suggested by the parties, as I always do, I believe that the
       17    appropriate instruction for both of these documents are, quote,
       18    "These documents are not admitted for the truth of anything
       19    that is said in these statements, and you may not consider them
       20    for the truth of what is said", unquote.
       21             And that is my suggested instructions with respect to
       22    those two documents.
       23             MS. BAKER:  Your Honor, the government would request
       24    that you not give such a limiting instruction because the fact
       25    that the statements are not factual assertions with the truths
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1    but rather are essentially verbal acts and therefore the
        2    statements fall outside the definition of hearsay goes to the
        3    legal question that the Court has to determine in deciding
        4    whether or not to admit the evidence.  That fact or that
        5    finding that they are not hearsay because they are not factual
        6    assertions with truths is independent of the purpose for which
        7    the jury can use the statements, or the question of how much
        8    weight the jury might decide to give to the statements, and the
        9    limiting instruction that your Honor is proposing to give
       10    suggests that the jury can't use the statements in certain ways
       11    when in fact your Honor's earlier parts of your decision,
       12    finding them admissible, indicates that in fact they are
       13    generally admissible, and can be generally viewed by the jury.
       14             So respectfully we submit that the instruction is
       15    inconsistent with the earlier part of the ruling and, as I
       16    said, is mixing the function of the Court in finding them not
       17    hearsay with the purpose for which they may be used by the
       18    jury.
       19             THE COURT:  I thought I was reflecting what the
       20    statement by Mr. Barkow was in his letter, not for the truth.
       21             MS. BAKER:  Your Honor, I don't have Mr. Barkow's
       22    letter in front of me, but he and I consulted when he was
       23    working on that letter, and the government's intention, however
       24    the letter was phrased, was that on the threshold question for
       25    the Court on admissibility -- this was based on the earlier
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    colloquy in court.  On the threshold question of admissibility
        2    for the Court there was colloquy about whether or not the
        3    statements were hearsay and therefore had some exception to the
        4    hearsay rule, and the government's ultimate position is that
        5    the statements are not subject to the hearsay rule because they
        6    are not factual assertions offered for their truth, and
        7    therefore the hearsay rule is simply inapplicable.
        8             But again, we submit that that's a different question.
        9    That's the legal question for the Court, whether the hearsay
       10    rule is a bar to the admissibility, and the Court has now
       11    essentially found that the hearsay rule is not a bar to
       12    admissibility because they are not factual.  Therefore, they
       13    don't have a truth or falseness.
       14             But that's a different question for the purpose for
       15    which the jury might use them, and the instruction suggests
       16    that there's some purpose for which they cannot be used.
       17             THE COURT:  Well, the government -- I mean, you've
       18    said they're not being offered for the truth, so that gets
       19    beyond the hearsay.  They're being offered for the fact that
       20    these statements are being made.  So when that happens, the
       21    usual instruction that I then give is:  These are not being
       22    offered for the truth of what's said.  So that you can assure
       23    yourself that the jury doesn't take them for the truth of
       24    something that's being said.
       25             MS. BAKER:  I recognize what your Honor --
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        1             THE COURT:  And if I -- you know, you can't get them
        2    in on the argument that they're not being offered for the
        3    truth, and then not say they're not being offered for the
        4    truth.  And I, you know, I very carefully follow the rules, and
        5    I instruct the jury, I explain what hearsay is and I take them
        6    through limiting instructions and all of that, and I just don't
        7    understand how you can say, You're right, your Honor, we're not
        8    offering them for the truth.  Just don't tell that to the jury.
        9             MS. BAKER:  Your Honor, if I might, I fear that I'm
       10    not explaining it clearly now.
       11             I really do think that there is a distinction between
       12    the general situation that your Honor just referred to and the
       13    situation here.  In the general situation that your Honor just
       14    referred to, the statements themselves have factual assertions
       15    in them, which factual assertions are capable of having truth.
       16    But because the statements are being admitted under a specific
       17    hearsay exception, even though the statements have a truth
       18    capacity to them, they're not being offered for the truth.
       19             These statements, because they are commands, don't
       20    have a truth capacity to them.  They're a completely different
       21    kind of utterance.  And to give the instruction that your Honor
       22    proposed sort of suggests that they do have a truth capacity to
       23    them, but that the jury has to set that aside.
       24             And that's the government's concern.  It's applying a
       25    label to the statements that don't really fit.  These are not
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1    assertions of fact, so they just are not capable of having
        2    truth or falseness.
        3             If your Honor wanted to instead give some sort of
        4    instruction that perhaps accomplishes the purpose but
        5    differently, for example, these statements are being offered to
        6    show that they were made, that Abdel Rahman made them --
        7    something that defines them more as the verbal acts, which was
        8    the basis for your Honor admitting them, rather than by trying
        9    to say what they were not.
       10             THE COURT:  Okay.  Do the defendants have a view?
       11             MR. RUHNKE:  If they're not offered for the truth,
       12    they're not offered for the truth.  And I think the jury has
       13    the right to know that.  So we do believe that your Honor's
       14    instruction is appropriate.
       15             THE COURT:  I agree with that.  I think the
       16    instruction is appropriate.  And the government says, but this
       17    is a different kind of statement because it really doesn't have
       18    a truthful content, it has a -- you look at it and it's not as
       19    though there are facts that are stated that are being offered
       20    for their truth.  If that's correct, and I very much understand
       21    that, then it really is not in any sense prejudicial to any of
       22    the parties or misleading the jury to say that these statements
       23    are not being offered for the truth of anything that's said,
       24    and that the jury can't consider them for the truth.  Because
       25    that, in fact, is the substance of what is going on.
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        1             Whether it is because there is no factual content to
        2    them, or because whatever factual content there is is -- should
        3    be disregarded, they are not being offered for the truth of
        4    anything that's said, and the jury is not to consider them for
        5    the truth of what is said.
        6             And so that appears to be the appropriate limiting
        7    instruction with respect to those two exhibits.
        8             Do the parties anticipate anything for me tomorrow
        9    morning?  I really would like to start with the jury at 9:30.
       10    And the answer to that depends on whether you come in at 9:00
       11    or 9:15.
       12             MR. TIGAR:  For Ms. Stewart, your Honor, I hesitate to
       13    state a present intention that might change based on later
       14    events, but I tell you in all sincerity, that is our present
       15    intention:  That we will have nothing for your Honor.
       16             MR. BARKOW:  Your Honor, today we offered into
       17    evidence, and it was received, Government Exhibit 405, the
       18    glossary, during the testimony of Ms. Banout.  And we published
       19    it in parts, but it is a glossary of terms, and one of them
       20    actually was used, Da'wa, in this transcript, and we were going
       21    to ask your Honor whether we might copy it for the jurors so
       22    they can use it as a reference in case others of those terms
       23    were used during the transcript -- within the transcripts, so
       24    they can refer to it.  For example, when Da'wa was used, they
       25    could look it up afterwards, or during, actually.
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        1             THE COURT:  What are the parties' positions with
        2    respect to that?
        3             MR. TIGAR:  Your Honor, a party has the discretion to
        4    publish a document to the jurors in any fashion the Court
        5    permits, and our only concern would be that then copies would
        6    have to be collected back from the jurors and not taken to the
        7    jury room as to start a kind of juror scrapbook about the case.
        8             But subject to that, your Honor, if the government
        9    wants to distract the jurors from the transcripts, that's fine
       10    with us.
       11             THE COURT:  There's no objection to doing it, so long
       12    as it's passed out and collected.  But I -- I always stop the
       13    juries when, for example, the parties wants to pass things and
       14    continue with the testimony.  You know, while some jurors are
       15    looking at something, others are listening to the testimony.
       16    The thought that jurors could be randomly turning to a glossary
       17    to go over four columns, is -- doesn't seem to me to be the
       18    most -- the most reasonable way to use the juror's time when
       19    they're supposed to be paying attention to what's being read or
       20    heard.
       21               (Continued on next page)
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                                      (212) 805-0300
        1             MR. BARKOW:  Your Honor and Mr. Tigar both raised good
        2    points on this and so perhaps instead what we might propose is
        3    that for calls that use a term on the glossary at the end of
        4    the presentation, we could re-publish that section of the
        5    glossary to explain it.
        6             THE COURT:  That would be alright.
        7             MR. PAUL:  Judge, just for scheduling purposes, are we
        8    to assume that tomorrow will be taken up with the reading of
        9    transcripts for the entire day?
       10             MR. MORVILLO:  I think that is a safe assumption.
       11             MR. PAUL:  Thank you.
       12             MR. BAKER:  Your Honor, just in terms of scheduling
       13    going forward, the government when Agent Kerns was on the stand
       14    had him briefly authenticate an additional DVD which was marked
       15    as Government Exhibit 1300.  The government provided copies of
       16    that DVD to defense counsel.  We are going to be providing
       17    either later this afternoon or first thing tomorrow a
       18    replacement copy of that DVD because it turned out that it had
       19    a couple of recordings that we decided to cut but lacked a
       20    different recording that we are intending to use.
       21             But, in any event, the government anticipates, unless
       22    the parties are willing to stipulate that Agent Kerns would
       23    give the same testimony with respect to 1300 that he did with
       24    respect to the other disks, the government does expect some
       25    time within the next day or two or so to recall Agent Kerns for
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                                      (212) 805-0300
        1    the purpose of authenticating and offering that additional DVD
        2    which will be again marked as Government Exhibit 1300.
        3             THE COURT:  Yes, Mr. Tigar.
        4             MR. TIGAR:  In order to evaluate that issue, I don't
        5    think I have a master list such as a 1300L that lists the same
        6    identifying information with respect to the calls.  If I could
        7    have that, then we could look back and see am I just spinning
        8    my wheels here or I do want to get that poor Marine back here?
        9             THE COURT:  Yes, the defendants should be provided
       10    with the equivalent of a 1300L, both with respect to the
       11    original and with respect to the replacement.
       12             MR. BAKER:  We will absolutely do that, your Honor.
       13    Although I thought from things Mr. Tigar had said previously
       14    that he was aware that if you just put that DVD in your DVD
       15    drive and click on "My Computer" in a Windows environment, what
       16    shows on your screen is exactly what is printed in that list.
       17    So he could effectively have that list any time.
       18             MR. TIGAR:  Your Honor, I did do that and I did open
       19    one file, so I know how to do that.  I have asked for an
       20    exhibit.  If I get it, I will consider the stipulation.
       21             THE COURT:  All right.
       22             I said that the government should provide that both
       23    with respect to a 1300L with respect to the original disk, as
       24    well as a 1300L with respect to the replacement disk so that
       25    it's reasonably determinable what has been taken out and what
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                                      (212) 805-0300
        1    has been put in.
        2             Okay.
        3             Anything else for me?
        4             Is it all right to start tomorrow at 9:15?
        5             Okay, see you all at 9:15.
        6             Have a good evening.
        7               (Trial adjourned to July 14, 2004 at 9:15 a.m.)
        8                                 o 0 o
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        1                          INDEX OF EXAMINATION
        2    Examination of:                               Page
        3    NABILA BANOUT
        4    Direct By Mr. Barkow   . . . . . . . . . . .  3586
        5    Cross By Mr. Stern . . . . . . . . . . . . .  3627
        6    Cross By Mr. Paul  . . . . . . . . . . . . .  3633
        7    Redirect By Mr. Barkow . . . . . . . . . . .  3637
        8                          GOVERNMENT EXHIBITS
        9    Exhibit No.                                        Received
       10     1000 and 1015   . . . . . . . . . . . . . . . . . . 3586
       11      407  . . . . . . . . . . . . . . . . . . . . . . . 3602
       12      405  . . . . . . . . . . . . . . . . . . . . . . . 3615
       13     1000S, 1313 and 1314  . . . . . . . . . . . . . . . 3677
       14    1001X, 1002X, 1009X, 1010X, 1011X, 1012X, 1016X, 1017X,
       15    1022X, 1023X, 1025X, 1027X, 1028X, 1029X, 1030X, 1032X,
       16    1033X, 1035X, 1044X, 1046X, 1047X, 1049X, 1051X, 1054X,
       17    1060X, 1061X, 1062X, 1067X, 1092X, 1093X, 1099X, 1102X,
       18    1104X, 1120X, 1121X, 1122X, 1123X, 1124X, 1125X, 1126X,
       19    1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X, 1134X,
       20    1135X, 1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X,
       21    1167X, 1169X, 1179X, 1180X, 1181X, 1183X, 1184X, 1188X,
       22    1189X, 1192X, 1194X, 1199X, 1200X, 1205X, 1212X, 1214X,
       23    1217X, 1226X, 1228X, 1229X, 1003X, 1004X, 1005X, 1006X,
       24    1007X, 1008X, 1013X, 1014X, 1026X, 1031X, 1045X, 1052X,
       25    1053X, 1069X, 1071X, 1088X, 1089X, 1090X, 1091X, 1094X,
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1    1100X, 1101X, 1111X, 1112X, 1117X, 1119X, 1136X, 1143X,
        2    1144X, 1152X, 1161X, 1168X, 1170X, 1182X, 1186X, 1190X,
        3    1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X, 1222X,
        4    1223X, 1224X, 1227X and 1230X . . . . . . . . . . .  3679
        5                                 o 0 o
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