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

This is the transcript of Day 23 of the proceeding and Day 14 of the trial.

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

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

        2    -------------------------------------x
        3               v.                            S1 02 Cr. 395 (JGK)
        4    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        5    and MOHAMMED YOUSRY,
        6                          Defendants.
        7    -------------------------------------x
        8                                            July 15, 2004
        8                                            9:40 a.m.
       10    Before:
       11                          HON. JOHN G. KOELTL
       12                                            District Judge
       13                              APPEARANCES
       14    DAVID N. KELLEY
       15         United States Attorney for the
       15         Southern District of New York
       16    ROBIN BAKER
       17    ANTHONY BARKOW
       17    ANDREW DEMBER
       18         Assistant United States Attorneys
       19    KENNETH A. PAUL
       19    BARRY M. FALLICK
       20         Attorneys for Defendant Sattar
       21    MICHAEL TIGAR
       22         Attorneys for Defendant Stewart
       23    DAVID A. RUHNKE
       23    DAVID STERN
       24         Attorneys for Defendant Yousry
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1               (At the sidebar)
        2             THE COURT:  I checked the calendar, and September 16th
        3    is a holiday that I've already indicated we wouldn't sit on.
        4    So the juror who has a spouse who won a trip for the 16th
        5    through the 20th, the only day that would be affected is the
        6    20th.
        7             In fairness, it seems to me that I should still call
        8    the juror in and say, if you can change it or switch it, that
        9    would be good.  That's what we ask with respect to vacations.
       10    If you can't, then we will understand, because we take days
       11    that individual jurors need for personal reasons.  So, please
       12    check and then tell me.
       13             And I think I should do that first thing this morning,
       14    to take two minutes with the juror.  So the parties are welcome
       15    to come back to the robing room.
       16               (Continued on next page)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1               (In the robing room)
        2               (Juror No. 292 enters the robing room; Mr. Morvillo
        3    and Ms. Shellow-Lavine in attendance)
        4             THE COURT:  Whenever I talk to a juror, I always have
        5    some of the lawyers present, so that shouldn't concern you.
        6    You can ignore them.
        7             JUROR:  Okay.
        8             THE COURT:  I don't want to talk to you about any of
        9    your views of the case or anything like that.  I never talk to
       10    jurors about substance.  The reason I'm talking to you is
       11    Mr. Fletcher told me that your spouse won a sweepstakes and
       12    it's for the 16th through the 20th.
       13             JUROR:  20th of September.
       14             THE COURT:  Of September.  We would not be sitting on
       15    the 16th.  It's -- I indicated at the outset that there are
       16    various holidays that are observed.  The 16th is one of them.
       17    So we would not be sitting on the 16th in any event.  So the
       18    only date that's affected for us is the 20th.  Now, I don't
       19    know what the details of the trip are.  Let me leave it with
       20    you this way:
       21             If it is a trip that can, you know, reasonably be
       22    rescheduled so that we don't lose that day, that would be good,
       23    because I've asked jurors in general to reschedule vacations
       24    because every day that a juror takes off all of us take off.
       25             JUROR:  I appreciate that.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             THE COURT:  So if it is reasonably possible to simply
        2    take the trip and reschedule it, or return from the trip on the
        3    19th so that we don't take off on the 20th, those are
        4    possibilities that I suggest to you.  And it would be good if
        5    you could do that.
        6             If all else fails and you tell me, No, Judge, this is
        7    really, really important, it's like a doctor's appointment or
        8    something else, and -- for my spouse or whatever, this is
        9    important, I've also indicated that I defer to personal
       10    emergencies for jurors.
       11             So I appreciate it if you could look into it and
       12    reschedule it or avoid any problem on 20th.  That would be
       13    great because that gives us that day for everyone.
       14             But if you absolutely can't, then it would be a date
       15    that none of us could sit.
       16             JUROR:  I appreciate that.  I'll see what I can do to
       17    move or come back a day early.
       18             THE COURT:  I appreciate that.  Thank you.
       19             JUROR:  Thank you.
       20             THE COURT:  And again, whenever I talk to a juror,
       21    don't repeat anything that I say to other jurors.
       22             JUROR:  No.
       23             THE COURT:  Thanks.
       24               (Juror No. 292 exits the robing room)
       25             MR. MORVILLO:  Should we seal this portion of the
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    transcript?
        2             THE COURT:  Only if it's a matter of -- personal
        3    issues.  I've done it with health problems and whatever.  I
        4    don't think I've done it with respect to a vacation.  I don't
        5    see a reason to do that.
        6             MR. MORVILLO:  I was just wondering if we needed to.
        7             MS. SHELLOW-LAVINE:  We have no request to do that.
        8             MR. MORVILLO:  Nor does the government.
        9             THE COURT:  Okay.
       10               (Continued on next page)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1               (In open court; jury not present)
        2             THE COURT:  Please be seated, all.
        3             MR. RUHNKE:  Your Honor, just very briefly before the
        4    jury comes in, there is an issue we've been discussing with the
        5    government back and forth that may arise around the time of the
        6    mid morning break, and that is the government's attempt to
        7    introduce Exhibit 508 which is a newspaper article reporting a
        8    fatwa involving bin Laden and Taha.  We would like to be heard
        9    before that is presented to the jury.
       10             And I just clarified with the government that it was
       11    not an article that was taken out of anyone's home or during a
       12    search.  It's simply an article that the government has
       13    obtained, and we want to be heard on it before it's presented,
       14    and we think around the break will be a natural time.
       15             THE COURT:  Fine.  The government should not seek to
       16    admit it, refer to it, until I've heard the parties.
       17             MR. BARKOW:  One other quick issue, your Honor -- this
       18    may also occur around the break -- we may seek to publish a
       19    portion of Government Exhibit 2031, which the Court ruled
       20    admissible.  That's the protocols of the elders of Zion.  What
       21    we're proposing to publish to the jury was the introduction --
       22    from the cover to the introduction, and we wanted to raise
       23    that.  We didn't know if any of the parties were going to seek
       24    to have us publish the entirety of the exhibit.
       25             THE COURT:  All right.  You can raise that with the
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    defendants.  If you sought to publish it, it would be subject
        2    to the limiting instructions that I had given.  Okay?  So don't
        3    admit it before the break, until you've had an opportunity to
        4    discuss the issue.  Okay?
        5             Anything else?  All right, let's bring in the jury.
        6               (Continued on next page)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1               (Jury entering courtroom)
        2               (In open court)
        3             THE COURT:  All rise, please.  Please be seated, all.
        4             Good morning, ladies and gentlemen.
        5             JURORS:  Good morning.
        6             THE COURT:  It's good to see you all.  Mr. Barkow?
        7             MR. BARKOW:  Your Honor, we would like to proceed, if
        8    we can, with the publication of and reading of government
        9    Exhibit 1044X, where we ended yesterday.
       10             THE COURT:  All right.
       11             MR. BARKOW:  If we may, can we start just by putting
       12    the first page on so we get the date?  This is a call, your
       13    Honor, on November 14 of 1999.  I will continue reading the
       14    part of Sa'ad Hasaballah, and Mr. Forkner will continue reading
       15    the part of Ahmed Abdel Sattar.  We finished yesterday with
       16    Page 17.
       17             THE COURT:  Okay.
       18             MR. BARKOW:  May I proceed?
       19             THE COURT:  Yes, please.
       20             (At this point, Government Exhibit 1044X, in evidence,
       21    was displayed and read to the jury, continuing)
       22             MR. BARKOW:  Your Honor, at this point we'd ask --
       23    we're shifting, if we may, to some of the Sattar search issues.
       24    I'd ask Mr. Forkner be excused.
       25             THE COURT:  All right.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             MR. BARKOW:  Specifically, your Honor, what we'd like
        2    to do is offer into evidence and then read government
        3    Exhibit 2042 and -- which I think is not yet in evidence.  We
        4    would offer that in evidence and ask if we can publish it to
        5    the jury.
        6             THE COURT:  All right.  Ladies and gentlemen, this
        7    exhibit is subject to the same limiting instructions that I
        8    gave you with respect to this series of exhibits.  This exhibit
        9    is offered only against Mr. Sattar and not against Ms. Stewart
       10    or Mr. Yousry, and it's offered only with respect to the
       11    knowledge, intent and state of mind of Mr. Sattar, and that's
       12    the only purpose for which you can consider it.
       13             MR. BARKOW:  Your Honor, may we publish on the screen
       14    for the jurors Exhibit 2042?
       15             THE COURT:  Yes.
       16             (At this point, Government Exhibit 2042, in evidence,
       17    was displayed and read to the jury)
       18             THE COURT:  This is a convenient time for us to take a
       19    stretch break, as long as there's a summary there.  Ladies and
       20    gentlemen, when I say a stretch break, that means you can get
       21    up and physically, you know, stretch.
       22               (Brief recess)
       23             THE COURT:  All right.  You may proceed.
       24             (At this point, Government Exhibit 2042, in evidence,
       25     was read to the jury, continuing)
       25                 (Continued on next page)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             MS. BAKER:  Your Honor, the government offers at this
        2    time a stipulation marked as Government Exhibit 2086T-B.
        3             THE COURT:  All right.  No objection, Government
        4    Exhibit 2086T-B received in evidence.
        5             (Government's Exhibit 2086T-B received in evidence)
        6             MS. BAKER:  May I read it to the jury, your Honor?
        7             THE COURT:  Yes.
        8             (At this point, Government Exhibit 2086T-B in evidence
        9    was read to the jury by Ms. Baker)
       10             THE COURT:  All right.
       11             MS. BAKER:  Your Honor, based on that stipulation and
       12    prior testimony, the government at this time offers Government
       13    Exhibit 2040 and 2040T, 2077 and 2077t, 2079 and 2079T.
       14             THE COURT:  All right.  No objections, Government
       15    Exhibits 2040 and 2040T, 2077 and 2077t, 2079 and 2079T
       16    received in evidence.
       17             (Government's Exhibits 2040, 2040T, 2077, 2077T, 2079
       18    and 2079T received in evidence)
       19             MS. BAKER:  At this time we request permission to
       20    display to the jury and read Government Exhibit 2040T.
       21             THE COURT:  All right.
       22             (At this time, Government Exhibit 2040T in evidence
       23    was read to the jury by Ms. Baker)
       24             THE COURT:  Could you hold on one moment?
       25             Ladies and gentlemen, with respect to these three
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1    exhibits and the translations of those exhibits, these exhibits
        2    are admitted only against Mr. Sattar and not against Ms.
        3    Stewart or Mr. Yousry.  They are admitted solely with respect
        4    to the knowledge, intent, and state of mind of Mr. Sattar and
        5    Omar Abdel Rahman, and you may consider them solely for that
        6    purpose.
        7             Thank you.
        8             Go ahead.
        9             (Reading continued)
       10             THE COURT:  All right.
       11             Ladies and gentlemen, we will take our mid-morning
       12    break for ten minutes.  Please remember my continuing
       13    instructions not to talk about the case.  Keep an open mind.
       14             All rise please.
       15             Follow Mr. Fletcher to the jury room.
       16             (Jury left the courtroom)
       17             THE COURT:  Please be seated all.
       18             There was one issue that you all were going to discuss
       19    but there was another issue, which was 508, that was not one
       20    that you were going to discuss.
       21             MR. RUHNKE:  It was the issue of 508, yes, your Honor.
       22             THE COURT:  Right.
       23             MR. RUHNKE:  Your Honor, I don't know if you have seen
       24    Exhibit 508 or if the government has a copy that they can
       25    display for the court.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             THE COURT:  I have it.
        2             MR. RUHNKE:  Okay.  It's a newspaper -- do you have
        3    the newspaper page?
        4             THE COURT:  I just have the translation 508T.
        5             MR. RUHNKE:  508 is a translation of the newspaper
        6    page which is the government is now putting up on the screen,
        7    your Honor.
        8             THE COURT:  Okay.
        9             MR. RUHNKE:  This comes up in the following context:
       10    As part of the government's first motion in limine, or one of
       11    their motions in limine, they sought permission from the court
       12    to introduce evidence of the fact that Taha was a signatory to
       13    a fatwah issued by Osama Bin Laden in February 1998.  That
       14    fatwah called upon Muslims "to kill Americans and plunder their
       15    wealth wherever and whenever they find it."
       16             You granted the government's motion in limine at page
       17    9 of your order dated June 11, 2004.  You did so based on the
       18    government's proffer that the evidence would include telephone
       19    calls between Taha and Sattar during which the two discussed
       20    the fatwah.  You noted the government sought to admit the
       21    evidence only against Sattar and not Stewart and Yousry.
       22             I believe we have had the telephone call that is
       23    referred to in the government's paper and in your order.  If I
       24    am wrong on that, the government will certainly correct me.
       25    But that was 1002X, which was played yesterday, or the day
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1    before.  This is a discussion between Taha and Al-Zayat,
        2    Montasser Al-Zayat.  And at page 19 of that transcript Taha
        3    tells -- at page 20 -- Taha tells Al-Zayat that he wants him to
        4    read a newspaper article of an interview with him that was
        5    published in Al-Quds on August 15, 1998.  The context is that
        6    the bombings of the American embassies in Tanzania and Kenya
        7    had taken place on August 7, 1998, and most of the article is
        8    discussing who was responsible or could have been responsible
        9    for the bombings of the American embassies.  And in the article
       10    reference is made to a February 1998 fatwah that nobody had
       11    paid much attention to to kill Americans wherever they can be
       12    found.
       13             To put some further time frames on this, the phone
       14    conversation occurs on December 12, 1998, and what Taha is
       15    telling Al-Zayat is that they should read the interview of him
       16    that is contained in that newspaper article; that he should
       17    read it and he would like the brothers "inside," which I take
       18    is a reference to prison members of the Islamic Group, to also
       19    read it as an example of the kind of things people should be
       20    saying in the media.
       21             I do not see a reference in the discussion of the
       22    fatwah at that point, and if there is some other discussion,
       23    believe me, there is enough going on in this case that I could
       24    have missed it.  I don't see any discussion of the fatwah
       25    itself, just of the newspaper interview of Taha.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1             The newspaper article itself, which the government
        2    seeks to introduce, is not an article that was recovered
        3    anywhere.  It's not an article, for example, that Sattar had in
        4    his house or Mr. Yousry had in his house or anybody had in
        5    their house.  The government simply went and got the article
        6    from public sources and now wishes to introduce the article,
        7    the entire article, into evidence.  We have had for some time a
        8    translation -- I have believe we had it for some time, I may be
        9    wrong on that too -- of parts of the article.  Although I am
       10    looking at the translations that are 508T, 508T2, 508T3, and
       11    508T4, and they are dated this month, some as recently as
       12    yesterday.  So I guess maybe we couldn't have had the final
       13    translations for more than a week or so.
       14             But it does not appear that what was stated on the
       15    tape between Taha and Al-Zayat would in any sense justify
       16    introduction of the entire newspaper article, part of which is
       17    a long discussion of who is responsible for the bombing, part
       18    of which is a biography, a biographical sketch of Osama Bin
       19    Laden, a large photograph of Osama Bin Laden, a biographical
       20    sketch of Taha that is all contained within this newspaper
       21    article.
       22             I understand that it's only admissible and offered
       23    against Mr. Sattar and I presume somewhere in this conversation
       24    of December 12, '98 Mr. Sattar was a participant and may have
       25    been there as part of a three-way telephone call.  Otherwise,
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        1    it would not have been recorded.  So Sattar at least is a
        2    passive listener to part of the conversation.
        3             But our application is -- now that we have it all in
        4    context as distinct from the in limine motion -- to have the
        5    court not admit it at all pursuant to Rule 403 or,
        6    alternatively, certainly not to admit the parts of the
        7    newspaper article -- for example, the photograph of Bin Laden
        8    and the discussion of who Bin Laden is and his background -- as
        9    unfairly prejudicial.
       10             When we were selecting a jury in this case the court
       11    told the jury this case had nothing to do with September 11.
       12    September 11 is not alleged to be part of this case.  I think
       13    to my mind, and to every American, Osama Bin Laden and
       14    September 11 are inseparable.  So our application is to not
       15    allow the exhibit to the extent that there may be a discussion
       16    of the fatwah in there that in the context now that you have
       17    heard it all and in the context of everything else you have
       18    seen, that it's unfairly prejudicial to everybody on trial and
       19    to not allow the evidence.
       20             MR. TIGAR:  Your Honor, may I add a few words?
       21             THE COURT:  Sure.
       22             MR. TIGAR:  In addition to the general problems of a
       23    media article that sweeps well beyond the fatwah, I would point
       24    in Exhibit 1002X to page 23 which is a reference by Mr. Sattar
       25    to the group, presumably the group that issued whatever
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        1    statement Taha was telling Al-Zayat about.  He says -- excuse
        2    me, the front -- and let me start again.  The front is the
        3    group that issued the statement.  "The group" I take to be the
        4    Islamic Group.  Because Mr. Sattar says at lines 8 through 10
        5    "the group is not part of the front."  And then he says
        6    beginning at line 20, "even when they talk about the front,"
        7    and he names the members of the front, which means the Islamic
        8    Group is not part of it.
        9             Then at page 25 Al-Zayat picks up again, beginning at
       10    line 5, and says, "The group has a lot of problems.  They don't
       11    need to get into conflict with another power, especially if it
       12    is a great power, a superpower."  And Taha says "Uhm," and then
       13    Al-Zayat picks up and says, "We don't need enmity with
       14    America."
       15             So to the extent there is discussion on 1002 that
       16    supports the fatwah, it points exactly away, and to introduce
       17    this bunch of stuff which comes out of the newspaper in the
       18    context of the embassy bombings and Osama Bin Laden, well,
       19    raises a problem that Mr. Ruhnke is talking about.  But I did
       20    want to point out those additional paragraphs or passages from
       21    1002.
       22             THE COURT:  All right.
       23             MS. BAKER:  Your Honor, let me begin by addressing Mr.
       24    Ruhnke's last point and then by proffering some of the contents
       25    of 1002X, which is already in evidence, and the proposed
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        1    Exhibit 508 by reference to its translations.  I hope to make
        2    clear to the court the relevance of this evidence and refute
        3    the points that Mr. Ruhnke and Mr. Tigar have raised.
        4             First, at the end Mr. Ruhnke seemed to be suggesting
        5    that there would be unfair prejudice from introduction of this
        6    exhibit because it includes reference to and includes a
        7    photograph of Bin Laden.  Your Honor has already ruled on the
        8    403 prejudice argument with respect to this type of exhibit
        9    generally -- that is, the fatwah to which Bin Laden was a
       10    signatory -- in your June 11 order and ruled that there was not
       11    undue prejudice.  The fact that the original Arabic newspaper
       12    article includes a photograph of Bin Laden doesn't change the
       13    prejudice calculus.
       14             There are going to be references to Bin Laden in this
       15    case and, indeed, later in the case there will be telephone
       16    calls that relate to the conference that was broadcast on
       17    Al-Jazeera in September of 2000, which was a conference of Bin
       18    Laden, Taha, Al-Zawahiri, in which they talked about waging
       19    jihad to free Abdel Rahman.  And that conference, broadcast on
       20    Al-Jazeera, is referenced in a series of telephone calls.
       21    Mr. Sattar is watching it on television as the calls
       22    demonstrate.  And so the government's evidence at that part of
       23    the case will include the video of the conference and obviously
       24    the video of the conference will depict Bin Laden.
       25             So your Honor has already addressed the 403 issues
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        1    relating to the fact that Bin Laden essentially makes an
        2    appearance in this case in these limited contexts and in light
        3    of the fact that one of those limited contexts is in fact a
        4    video that depicts Bin Laden, we respectfully submit that the
        5    fact that this newspaper article includes a photograph of Bin
        6    Laden doesn't change the prejudice calculus here.
        7             But to get specifically to the contents of the article
        8    and how they relate to the telephone call, which is already in
        9    evidence and was already read as reflected in the excerpted
       10    transcript, which is Government Exhibit 1002X.
       11             (Continued on next page)
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        1               (In open court; jury not present)
        2               (Continuing argument)
        3             MS. BAKER:  1002X, or the call reflected in that, is a
        4    three-way call in which Sattar and Taha begin speaking to each
        5    other, as reflected on Page 1 of Government Exhibit 1002X.  And
        6    then Sattar conferences in Montasser Al-Zayyat.  The first
        7    relevant part of the conversation is at Pages 19 to 20 of
        8    Government Exhibit 1002X.  And it's important that the Court
        9    know exactly what this portion of the transcript says, so I'm
       10    going to just briefly read from the transcript.
       11             THE COURT:  It would have been helpful before now to
       12    have reference to the transcript.
       13             MS. BAKER:  I understood you had a hard copy.  It
       14    should be on your screen right now, Judge.
       15             MR. TIGAR:  You can borrow ours.
       16             MS. BAKER:  I apologize, your Honor.  You don't have a
       17    hard copy?
       18             THE COURT:  It's a request I made yesterday.
       19             MS. BAKER:  I'll hand up a hard copy, and also, it's
       20    on the screen.
       21             The relevant portion starts at Page 15, on Line 19, at
       22    which Taha says:  There was an interview with me that was
       23    published in Al-Quds newspaper dated August 15, Page 3.
       24             Al-Zayyat:  Ah.
       25             Taha:  August 15, '98.
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        1             Al-Zayyat:  Yeah.
        2             Taha:  Page 3.
        3             Al-Zayyat:  We haven't seen that one.
        4             Taha:  Okay.  Try to get that issue, please.  It's
        5    dated August 15, '98.
        6             And turning now to Page 20.
        7             MR. MORVILLO:  May I hand up a hard copy of the
        8    transcript?
        9             THE COURT:  Fine.  What page?
       10             MS. BAKER:  20.
       11             Al-Zayyat:  August.
       12             Taha:  Hah?
       13             Al-Zayyat:  Okay.  I'll try to get it from Cairo
       14    office or retrieve it from the, eh...
       15             And then Sattar, who has been listening all along,
       16    chimes in at that point, which indicates he's been specifically
       17    following this conversation.  He chimes in by saying:  From the
       18    Internet.
       19             Taha:  Ah, issue dated 15 and 16.
       20             Al-Zayyat:  Okay.
       21             Taha:  Which is Saturday's and Sunday's weekly issues,
       22    Page 3.
       23             Al-Zayyat:  Was it published in two issues?
       24             Taha:  No, no.
       25             Sattar -- again, Sattar chiming in, simultaneously:
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        1    It's one issue.
        2             Taha:  It's one issue.
        3             Sattar:  It's one issue for Saturday and Sunday.
        4             Al-Zayyat:  Perfect.
        5             Taha:  Eh, eh, I want you to read this interview.  I
        6    also want the brothers inside to get it alongside with or
        7    without the book.
        8             Al-Zayyat:  Ah.
        9             Taha:  And they are to be told that this is our way of
       10    media coverage of issues.
       11             So that portion of 1002 is significant for two
       12    reasons.  First is Taha adopting the article.  And, as I'll get
       13    to in a moment, when I start proffering some of what's in the
       14    article, portions of the article are an interview of Taha,
       15    explicitly presented as such.  But then there's also some other
       16    text which is background to why the interview is occurring and
       17    some of the issues in the interview.
       18             But the government submits that by virtue of that
       19    portion of 1002X, Taha is essentially adopting the article in
       20    its entirety as his statement and his -- a demonstration of his
       21    way that the Islamic Group, in his view, should be dealing with
       22    the media on the various issues that it is in the process of
       23    addressing.
       24             Now, to turn to a portion of the translation of the
       25    article itself, a portion of the translation that is marked as
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        1    Government Exhibit 508-T2.  That portion of the translation is
        2    the translation of the fatwa itself.  And if your Honor looks
        3    at that portion of the translation, you'll see that the fatwa
        4    is entitled:  Text of World Islamic Front's statement urging
        5    jihad against Jews and crusaders, so the substance of the fatwa
        6    is there is or should be the formation of this united front, so
        7    that the key reference there is the term "Front".
        8             By the way, in the text of the article itself, it does
        9    make clear, 508-T, Page 2, the article makes clear that the
       10    fatwa for the formation of the Front was initially issued in
       11    February, February of 1998, so the existence of the fatwa and
       12    the Front have been around for approximately six months at the
       13    time of this article that we are offering, 508; and has been
       14    around for about 10 months, almost 10 months, at the time of
       15    the telephone call, Government Exhibit 1002.
       16             And some of the rest of the conversation in 1002
       17    examine, which I'll turn to right now -- indicates that Sattar
       18    was familiar with the fatwa and the Front event, if he had not
       19    yet read this specific article that Taha was urging that he
       20    adopt and read.
       21             So if you would turn to 1002X, Page 23, you will see
       22    the discussion relating to the fatwa, specifically to the Front
       23    created in the fatwa, continues with Sattar saying, at Lines 8
       24    to 10:  Among the things I want to say is, your statement that
       25    came on the Internet, [stuttering] that we, eh, that the group
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        1    is not a part of the Front and so forth.
        2             And then they continue down.  And then at the bottom
        3    of Page 23, Lines 20 to 23, Sattar says:  Okay, this is
        4    [stuttering] the way they think here.  They didn't name....
        5    Even when they talk about the Front, which is, the Front for
        6    fight against Jews and Christians --
        7             Let me pause to say that's his paraphrasing or a
        8    slightly different translation of the title of the fatwa
        9    itself.
       10             And then, continuing with the transcript of the call:
       11    Eh, they mean al Qaeda, the jihad, a Pakistani group and a
       12    group of Bangladesh.
       13             Now, it appears that what Sattar is referring to in
       14    that portion of the call is what was alleged in the embassy
       15    bombing indictment that had been handed down in this district.
       16    And that that indictment made a certain reference to this front
       17    established by this fatwa.  And Sattar is, in this sentence,
       18    making the point that when the embassy bombing indictment
       19    talked about the fatwa, the embassy bombing indictment did not
       20    specify that the Islamic Group was a part of the Front created
       21    by the fatwa.
       22             Now, that assertion by Sattar of the embassy bombing
       23    indictment is the same point that Mr. Tigar was just making,
       24    that there's reason to believe that the Islamic Group as a
       25    whole, the Group, was not part of the Front formed by the
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        1    fatwa.  The government respectfully submits that that point is
        2    irrelevant to this admissibility determination and to the
        3    government's theories in this case.  The government's case, the
        4    charges in this indictment that is on trial here now, is not
        5    about the Islamic Group as a whole.  The Islamic Group is
        6    relevant because of its activities in the past, its history,
        7    but at the time of the events at issue in this trial, the
        8    Islamic Group has become factionalized:  It's not functioning
        9    as a united whole.  There's the Taha faction and there's the
       10    other faction.  And what's become clear in this case is that
       11    Sattar is on the side of the Taha faction, and so the relevance
       12    here is that Taha individually signed on to this fatwa,
       13    creating this front.  And the fact that the Islamic Group as a
       14    whole refused to do so and that Taha later stated publicly that
       15    the group as a whole was refusing to do so, is -- I mean, it
       16    may be relevant, that may be evidence that the defense seeks to
       17    advance, but that doesn't defeat the relevance or admissibility
       18    of this evidence because Taha himself is the coconspirator in
       19    the Count 2 conspiracy to kill and kidnap.
       20             And Taha himself is a participant in the solicitation
       21    to violence in Count 3.  He's also a coconspirator in Count 1.
       22    But for this evidence, the relevance is Counts 2 and 3.
       23             And so, because Taha is a participant in that
       24    activity, the fact that he, individually, not the Group as a
       25    whole, is the signatory to this fatwa creating this front, is
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        1    the relevant point for purposes of determining admissibility,
        2    weighing the 403 issues and so on.
        3             Just to provide the Court a little more information,
        4    again on Page 25 of Government Exhibit 1002X, they continue
        5    discussing this fatwa.  On Page 25 is Al-Zayyat referring to
        6    it.  And then on Page 26 it's referred to again, I believe by
        7    Taha himself.
        8             So the government submits that in light of Taha's
        9    express adoption of this article, which is marked as 508, in
       10    the call 1002, of its transcript 1002X, and in light of
       11    Sattar's obvious familiarity with the fatwa and the Front as
       12    reflected in the content of the call, and the fact that Sattar
       13    chimes in right at that point in the conversation when this
       14    article is referenced, that he's either seen the article or he
       15    has essentially been tasked by Taha to go see the article, the
       16    government therefore respectfully submits that therefore the
       17    article should be received in its entirety against Sattar as
       18    relevant evidence on Counts 2 and 3, adopted statements by Taha
       19    in furtherance of the Count 2 conspiracy.
       20             Now, the government initially sought to introduce just
       21    the text of the main article itself, which includes the
       22    explicit interviews of Taha portions.  And that main portion of
       23    the article is reflected in the translation marked as 508-T.
       24             Plus the government seeks the text of the fatwa
       25    itself, which is set forth, translated, in 508-T2.
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        1             And if I might just display for your Honor for a
        2    moment the way the government intends to present the original
        3    508.  It's a full-size copy of the page of the newspaper.  The
        4    main article -- the beginning of it is indicated by this flag
        5    with the Number 1 in the upper right hand corner of the
        6    document, because Arabic reads from right to left.  So the text
        7    of the main article is all set forth, basically spread around
        8    the whole two-page -- or the whole one large page.  And then
        9    there are three separate pieces, additional pieces, each of
       10    which is set forth in a box.  The box at the bottom of the page
       11    flagged with the flag marked Number 2 is the text of the fatwa.
       12    And this is the translation marked as 508-T2.
       13             In the middle of the page are two additional boxes
       14    each of which has a photograph and some text underneath it.
       15    The government was not originally seeking to offer a
       16    translation of that text, but it's our understanding that
       17    Mr. Sattar requests that translations of that text be included
       18    as well, so now the translations of those two pieces of text
       19    are set forth in 508-T3 and 508-T4.  And each of these sections
       20    of the exhibit has been flagged with a 3 and a 4 to show the
       21    corresponding parts.
       22             And just to be clear, the government obtained this
       23    exhibit from the publisher of Al-Quds.  The handwriting at the
       24    top of the page when it says, 15 August 1998, that was written
       25    on there by somebody who was involved with sending it to us.
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        1    But it also does say, printed -- in the upper right hand corner
        2    in Arabic, it indicates -- sorry, in a mixture of Arabic and
        3    regular numerals, it says at one point, 15/16 1998, and then at
        4    the bottom of the page it is printed, Al-Quds Al-Arabi,
        5    Volume 10, issued 2881, Saturday/Sunday, 15/16, August, 1998.
        6             And in the call, Taha does specifically indicate that
        7    it was Page 3 of that particular issue of the newspaper.  And
        8    the upper left-hand corner of the original exhibit does reflect
        9    that it's Page 3.
       10             MR. RUHNKE:  By way of brief reply, your Honor, it is
       11    the core of our argument that a couple of brief references to a
       12    newspaper article in the course of a long, long conversation,
       13    is a very thin vehicle for what the government is attempting to
       14    make out of it.  That Taha in the conversation cites an
       15    interview as an example of how we should handle, quote, "our
       16    way of media coverage of issues", close quote, and from that,
       17    the government posits they can bring Osama bin Laden into this
       18    case, to bring the very virulent and prejudicial, in the
       19    nonlegal sense, "fatwa", which basically says that Americans
       20    are to be attacked, wherever they are and wherever they may be
       21    found.
       22             Whatever probative value there is to the interview of
       23    Taha in which he discusses the -- his views of any number of
       24    things -- I think that probative value is substantially
       25    outweighed by the danger of unfair prejudice.  And there's also
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        1    the problem of confusion of the issues under 403 because there
        2    is all this almost Byzantine back-and-forth about who's part of
        3    what group and who supports what group; are we in Group A or
        4    Group B?  Who's in the Islamic Group; who's in the Front?
        5             What is the Front?
        6             And a concern that we had by the number of limiting
        7    instructions the Court is required to give the jury that part
        8    of the danger is, to us, being Mr. Yousry and, referentially,
        9    Miss Stewart, that the government will lose sight of who this
       10    evidence is admitted against.  And it's a case of a little bit
       11    of discussion supporting an overwhelmingly prejudicial offer on
       12    the government's part.  It's not as if the newspaper articles
       13    cited earlier were found in anyone's home.  It's not as if
       14    although Mr. Sattar is on the line as a listener and as a
       15    participant, that the search of his home in fact uncovered this
       16    article, therefore putting him on notice of what the article
       17    was.
       18             We think, in an overall sense, the article should not
       19    be admitted; the interview should not be admitted, now that
       20    your Honor has had the context and seen what this looks like,
       21    in the actual presentation of the trial, so we renew our
       22    objection to this article.
       23             MR. TIGAR:  Your Honor, may I speak briefly on behalf
       24    of Miss Stewart?  In addition to Mr. Ruhnke's points, which I
       25    think are coherent and cogent, of course, you know the embassy
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        1    bombing case did deal with this fatwa, and did not at all bring
        2    in the Islamic Group.  The government didn't mention the
        3    Islamic Group.  That wasn't their theory.  They didn't do
        4    anything with it.  We've got lawyers that were in that case
        5    here.
        6             But for us, the important thing, in addition to what
        7    Mr. Ruhnke says is, suppose that Mr. Taha's statement is an
        8    adoption of the interview portion of the article?  That's about
        9    as far as that would go.  Why would that be admissible against
       10    anybody here?
       11             We have some interest in Count 2, as the Court has
       12    pointed out.  So let me talk about that.  It is before the
       13    conspiracy charged in Count 2 began because it is a 1998
       14    conversation.  Moreover, Mr. Al-Zayyat was said to be a
       15    conspirator.  The government said that.  Mr. Sattar was said to
       16    be a conspirator, the government said that.  But what we have
       17    here is that when Mr. Taha says something, Mr. Sattar
       18    contradicts him and points out that this Front that issued the
       19    fatwa does not include the Islamic Group, and even goes so far
       20    as to mention that the government isn't saying that.
       21             And then, in the portions that I read, Mr. Al-Zayyat
       22    rebukes Mr. Taha and tells him it's a bad idea to incur the
       23    enmity of the United States.  This is a strange conspiratorial
       24    conversation when by a vote of two to one the people are saying
       25    that they're not part of it and you shouldn't do it.  So
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        1    therefore the 801(e)(2)(E) link that the government needs to
        2    have in order to make the alleged adoption -- which it already
        3    overstates -- work, simply fails.
        4             MS. BAKER:  Your Honor, the adoption by Mr. Taha at
        5    Page 19 of the transcript could not be more explicit.  And
        6    Sattar's chiming in references at that point indicate that he
        7    has read the article.  He chimes in by saying it's one issue
        8    dated the 15th and 16th or Saturday and Sunday.
        9             But just to turn back to the content of the article
       10    itself, at Page 2 of Government Exhibit 508-T, which is the
       11    translation of the main part of the article, there's an
       12    explanation of the fact that the Islamic Group as a whole was
       13    not part of the fatwa and the Front, but in the middle of that
       14    page is the following paragraph.  Asked why he signed the
       15    religion ruling with Bin Laden/Al-Zawahiri, Taha said:  The
       16    purpose was for Muslims to unit in their confrontation against
       17    the forces of tyranny and aggression that dominate Muslim
       18    peoples.
       19             So again, as I argued earlier, Taha himself is
       20    signatory to the fatwa, is re-endorsing it here, clearly
       21    believes in it, and that is its relevance here for purposes of
       22    this case.
       23             I want to also point to Page 5 of 508-T, just to make
       24    clear that this article has a lot of relevant content.  It's
       25    not just a little passing reference.
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        1             The third full paragraph on Page 5 of 508-T is quoting
        2    Taha directly, and at that point he says the following,
        3    starting in the middle of that paragraph:
        4             We have declared our position toward the United
        5    States.  We are hostile to the United States because it is
        6    hostile to the Islamic nations because it is trying to
        7    subjugate them, and because Dr. Omar Abdel Rahman is still in
        8    American prisons.  The Egyptian and the U.S. security agencies
        9    know that the Group tried to carry out operations against the
       10    U.S. interests but could not succeed.  We will continue our
       11    hostility to the United States as long as the Americans are
       12    hostile to our nations, as long as they hold our sheikh in its
       13    prisons, and as long as they continue to support the Zionist
       14    entity in our Palestine, in our Jerusalem.
       15             Highly relevant.  Makes clear that Sattar read it.
       16    And for all these reasons, the government submits that it is
       17    clearly relevant to Counts 2 and 3 and that the prejudice does
       18    not outweigh the high probative value.
       19             Your Honor, if you wish to bring the jury back in and
       20    not rule on this now -- we had another speech that we could
       21    turn to.  I didn't realize that this was taking so long to
       22    address this issue.  We started on what was supposed to be a
       23    break.
       24             THE COURT:  Right.  But we'll take three minutes.  I'm
       25    plainly not going to rule on it now, in any event.  And I'll
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        1    give you a couple of observations at the end of the morning and
        2    give you the opportunity to give me anything further that you
        3    want on this.
        4             Okay.  We'll just take three minutes so that you can
        5    have a break
        6               (Recess)
        7               (In open court; jury not present).
        8             THE COURT:  Okay, let's bring in the jury.
        9               (Continued on next page)
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        1               (Jury entering)
        2             THE COURT:  Please be seated, all.
        3             Ladies and gentlemen, as I've told you, we'll be
        4    breaking at 12:15 today.  Our break took longer because again I
        5    was dealing with some legal issues that have nothing to do with
        6    any of your -- the issues you will decide.  And so I appreciate
        7    your indulgence on it.
        8             MR. MORVILLO:  Your Honor, at this time the government
        9    would request permission to read to the jury Government Exhibit
       10    2077-T, which is in evidence.
       11             THE COURT:  Ladies and gentlemen, I've given you a
       12    limiting instruction regarding this exhibit, and I ask you to
       13    follow that instruction.
       14             MR. MORVILLO:  Your Honor, this will take up the
       15    approximately 15 minutes we have left.
       16             THE COURT:  Yes, go ahead.
       17             MR. MORVILLO:  May I proceed, your Honor?
       18             THE COURT:  Yes.
       19             (At this point, Government Exhibit 2077-T, in
       20    evidence, was displayed and read to the jury)
       21             THE COURT:  This is a convenient time to break.
       22    Ladies and gentlemen, we'll break for the day, and we'll resume
       23    on Monday morning at 9:30.  Please remember my continuing
       24    instructions:  Please don't look at or listen to anything to do
       25    with the case.  Keep an open mind until you have heard all the
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        1    evidence, I have instructed you on the law, and you have gone
        2    to the jury room to begin your deliberations.  Please don't
        3    talk about the case or anything having to do with it.
        4             Have a good weekend.  I look forward to seeing you
        5    Monday.  All rise.  Follow Mr. Fletcher to the jury room.
        6               (Jury exits the courtroom)
        7               (In open court; jury not present)
        8             THE COURT:  Please be seated, all.  The -- I'll view
        9    the articles and I'll consider the transcript.  Is there
       10    anything else that the parties wanted to tell me on this?
       11    Ms. Baker?
       12             MS. BAKER:  Two things very briefly, your Honor.
       13    First, obviously, as your Honor is aware, at Page 10 of your
       14    June 11, 2004 order, you previously found that the high
       15    probative value of fatwa is not substantially outweighed by the
       16    danger of unfair prejudice to any of the defendants, and so the
       17    government's argument today was essentially that your Honor
       18    should adhere to that prior ruling, and that nothing about the
       19    nature of the article in which the fatwa is here referenced and
       20    incorporated in any way changes that prior ruling.
       21             The other thing is, I'm not able to say as I stand
       22    here right now which, if any, other intercepted telephone calls
       23    that we are presenting may include references to the fatwa or
       24    Front, so I just would request the opportunity -- we will
       25    search the transcripts of the calls and advise your Honor later
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        1    this afternoon which other ones may reference --
        2             THE COURT:  The motion in limine refers to telephone
        3    calls.
        4             MS. BAKER:  Yes, and we will advise your Honor of
        5    which other calls.
        6             THE COURT:  All right.  There are -- the parties can
        7    give me, if they wish -- I'm not requiring this -- anything
        8    else that they want to address by today at 5:00 o'clock.  Is
        9    that reasonable?  I don't want to place burdens on you that --
       10    you know, I don't want to -- if you say, you know, we've
       11    explained our position to you, that's fine.  And then if
       12    there's any response, it would be by 10:00 a.m. tomorrow.
       13             The arguments today, it seems to me, raise a couple of
       14    additional issues.  And they may or may not be additional; I
       15    just raise them for you.  Part of the argument by the counsel
       16    for Mr. Yousry and Ms. Stewart was that the article actually
       17    goes beyond what could be viewed as adopted by Taha.  Taha
       18    says, Read my interview.  That's a way of -- that we get the
       19    message to read.  And so Taha is quoted in the article which is
       20    referred to.  And his interview also discusses the fatwa
       21    itself.  The article seems to go somewhat beyond that with, for
       22    example, the information with respect to the embassy bombings,
       23    which is not referred to as I saw it in the transcript.
       24               (Continued on next page)
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        1             Now, some of the background may be sought as context
        2    or 106 completeness, particularly by Mr. Sattar, but I haven't
        3    heard that other than the government's representation that
        4    Mr. Sattar wanted the two boxes in the article.  So I point
        5    that out to you.
        6             Second, as I have repeatedly said, it's very important
        7    to define what this is being offered for and what the area of
        8    admissibility is, whether it's being offered for state of mind
        9    or intent, which are in and of themselves exceptions to the
       10    hearsay rule.
       11             I gave in my motion in limine one limiting
       12    instruction, which I said I would give with respect to this
       13    evidence.  That was without the benefit of the specific
       14    evidence that was being sought to be admitted.
       15             Counsel for Ms. Stewart raised the issue of whether
       16    this could be admitted under 801(d)(2)(e).  I didn't hear that
       17    the government was seeking to admit this under 801(d)(2)(e).  I
       18    just didn't hear what the response was.  Whether it's being
       19    offered for the truth, whether it's an exception to the hearsay
       20    rule, or whether it's being offered as not hearsay under
       21    801(d)(2)(e), or whether it is not only not being offered
       22    against Ms. Stewart, who made that objection, but that the jury
       23    should not consider it for its truth against that objecting
       24    defendant.
       25             So you can look at the proposed limiting -- the
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        1    government can respond on that issue and the parties can look
        2    at what I have already said would be a limiting instruction
        3    with respect to this evidence and determine whether any other
        4    limiting instruction, if any, should be given if I decide that
        5    the evidence would come in.
        6             There is another issue which is out there, which in
        7    deciding the motion in limine I went through the issues.  I
        8    went through the 403 analysis and that 403 analysis still is
        9    quite applicable to to the issues that I dealt with and
       10    considered at some length in the motion in limine.  It is
       11    possible, as I said, that there could be specific redactions to
       12    the article if there are specific issues.  For example, there
       13    are photographs in the article which are not essential to the
       14    article.  There is the discussion of the embassy bombings,
       15    which I don't see in the telephone transcript being discussed
       16    and which, as I said, raises a different issue.
       17             And if there were to be -- and I am not saying that
       18    there have to be, because I want to see what the parties'
       19    positions are -- if there were redactions from the article,
       20    then the issue would be whether the article itself with plain
       21    redactions goes in or, rather, whether some stipulated excerpt
       22    from the article goes in.  But I couldn't, I don't think,
       23    simply admit the excerpt from the article without some
       24    stipulation.
       25             So those were the additional questions in my mind that
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        1    were raised by the arguments of the parties.
        2             Okay?
        3             Both sides can submit anything they want, all sides,
        4    by 5 o'clock, and you can respond, everyone else, by 10 o'clock
        5    tomorrow morning.
        6             Anything else?
        7             Good afternoon, all.
        8             MR. BARKOW:  Your Honor, what time should we be here
        9    on Monday?
       10             THE COURT:  Oh, I will try to get to this over the
       11    weekend, but is there any reason why this issue has to be
       12    decided by first thing Monday morning?
       13             MR. MORVILLO:  I don't believe so, your Honor.  We
       14    intend to present some witnesses on Monday that we would be
       15    able to move past this.
       16             THE COURT:  And there are all of these other
       17    transcripts which I thought were being read in chronological
       18    fashion.
       19             MR. MORVILLO:  They are, your Honor.  But of course
       20    this article fits in with what we have already read and to the
       21    extent we can avoid having to double back too far, we would
       22    like to read it as close to the reading of the transcript as
       23    possible.  But having said we are already about a year past it.
       24             THE COURT:  I thought so.
       25             MS. BAKER:  Just to be clear, your Honor, our plan is
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        1    to go chronologically.  We already need to double back a little
        2    bit because we have a second DVD with additional calls that we
        3    will be seeking to introduce on Monday.  Some of those calls
        4    are earlier than where we are now in the chronology but we
        5    didn't have a choice because we didn't have that disk in
        6    evidence yet, which we hope we will on Monday.
        7             So our intention at this point is before continuing
        8    further forward in the chronology to double back and pick up
        9    some of the things that we skipped over, which would include
       10    some earlier calls as well as this article.  But on Monday we
       11    will take a break from the chronological move forward to
       12    present some witnesses.
       13             THE COURT:  Okay.
       14             MR. TIGAR:  That will be Agent Kerns?
       15             MS. BAKER:  Agent Kerns is one of the witnesses who
       16    will testify on Monday.
       17             MR. TIGAR:  We will look forward to receiving the
       18    names and Jencks material of the witnesses that will be
       19    attending.
       20             THE COURT:  I think you should all be here by 9
       21    o'clock Monday.  All right.
       22             I can't tell you that I will have resolved all of your
       23    issues on these exhibits, but I think 9 o'clock is the more
       24    prudent time for you to be here on Monday.  Okay.
       25             (Trial adjourned to July 19, 2004 at 9 a.m.)
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1                          GOVERNMENT EXHIBITS
        2    Exhibit No.                                    Received
        3     2086T   . . . . . . . . . . . . . . . . . . .  3761
        4     2040, 2040T, 2077, 2077T, 2079, 2079T . . . .  3761
        5                                 o 0 o
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300

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