20 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 25 of the proceeding and Day 16 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/
4000 47KLSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 July 20, 2004 8 9:25 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4001 47KLSAT1 1 (In open court; jury not present) 2 THE COURT: Good morning, all. Please be seated. We 3 have a few minutes because Mr. Grate wanted to speak with the 4 jurors. 5 MR. GRATE: Actually, I want to speak to you. 6 (Off the record) 7 (At the sidebar) 8 THE COURT: A couple of things. Mr. Grate is going to 9 talk to the jurors about going out to lunch and the 10 arrangements for going out to lunch and menus and the like. 11 We'll send the jurors out to lunch on an irregular basis, and 12 I'll let you know on any day when the jurors are going to go 13 out to lunch, and we'll have to take about a two-hour break 14 over the lunch hour on a day that that happens. 15 And I won't do anything over that lunch hour, so you 16 can all take a long lunch. Because I understand the security 17 detail will have to assist in taking the jurors out to lunch. 18 Second, the marshals raised with me whether I had any 19 problem with jurors remaining in the hallway. I mentioned to 20 you earlier I've allowed the jurors to stretch their legs in 21 the back corridor, and from time to time, at least one juror 22 will sit outside the jury room going over the juror's notes. 23 Other jurors may spend more time in the other room that we've 24 provided which provides an additional rest room. And my 25 reaction to all of that is I have no problem with any of that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4002 47KLSAT1 1 The jury room is not so large that if individual jurors want to 2 get away -- it's, I think, all to the good for the jurors to be 3 able to do that. And the back corridor is -- the marshals are 4 in it, so to me, there's no problem. But I wanted to raise it 5 with you. 6 MR. STERN: Seems fine. 7 THE COURT: All righty. 8 (In open court) 9 THE COURT: In going over my notes from yesterday, I 10 had a question. Also, I viewed my prior opinion and looked at 11 the indictment, and I don't recall testimony yesterday with 12 respect to any tape of the alleged July 13, 2001 prison visit. 13 MR. MORVILLO: Your Honor, that's because the witness 14 who can testify to that retired from the FBI recently and was 15 on vacation yesterday and is flying here as we speak and will 16 be here tomorrow to testify with respect to that meeting. 17 THE COURT: All right. Well then, it's premature for 18 me to start ruling on the rest of the tapes. 19 MR. BARKOW: Your Honor, if I may -- I don't know if 20 the Court had other issues it wanted to get to before. We had 21 two things we wanted to raise briefly. The first relates to 22 the first piece of evidence that we wished to start with this 23 morning, which is Government Exhibit 508 which the Court ruled 24 as redacted is admissible. And what we have done is, at this 25 point, covered the portion that is to be redacted with a piece SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4003 47KLSAT1 1 of paper that is glued or taped on. What we had intended to do 2 today is when we publish this, not to hand it to the jury, but 3 to have someone hold it up and show it to them. 4 Defense counsel, especially defense counsel for Miss 5 Stewart, raised an issue with respect to this because it is 6 taped or glued on, and expressed concern that it could be 7 peeled off and what was underneath could be seen. So what we 8 propose to do is use an exacto knife or something and cut it 9 out and have that be what eventually goes back to the jury, and 10 maybe even mount it on a board, so as to make it that it's 11 still in the same size, it's an original newspaper article. 12 But they seem to have a problem with that. I'm not entirely 13 sure, I think they want us to cut the article to pieces and 14 rearrange it. But we would like to present it this way, and 15 we'd ask the Court to allow us to do that. That was the first 16 issue that I wanted to raise. 17 THE COURT: If there is -- if there's an issue, it's 18 redacted so it can be removed, and if the parties would rather 19 that it be physically cut out and put on a -- mounted on 20 another piece of paper, that's fine. 21 MR. BARKOW: We actually don't have a problem with 22 that, your Honor. What I'm actually saying, and I don't 23 completely understand what they propose that we do, but I think 24 they want us to cut it and rearrange it in some way and not 25 even hold it up to the jury this way at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4004 47KLSAT1 1 MS. SHELLOW-LAVINE: Your Honor, our suggestion to 2 Mr. Barkow had been because when you hold up the piece that's 3 there, it's sort of like asking the jury not to notice that the 4 hippopotamus is not there. That merely moving the half 5 columns, still leaving it in its full size so that it's 6 obviously still full size from a newspaper, but therefore not 7 with the huge white hole in the middle, a process which, with 8 an exacto knife, shouldn't take very long and which doesn't 9 remove the content. 10 MR. BARKOW: The point is, though, that there will be 11 a huge white hole somewhere because there's only so much 12 content on here once you remove the part that's redacted. So 13 no matter how we arrange it, there's going to be a space that 14 is white. As with any other redacted pieces of evidence, it 15 seems an instruction about redaction, that it has no bearing or 16 effect on a case would be sufficient because the jury would 17 have no idea what was there. 18 THE COURT: I don't see a way of rearranging that. 19 And rearranging it would interfere with the integrity of the 20 original other than by just taking it out. 21 MS. SHELLOW-LAVINE: It would leave a blank column at 22 the -- I believe reading right to left, the left-hand side of 23 the page. It's just changes the size of the hippopotamus. 24 THE COURT: I think I understand. If the parties 25 agree, the way of doing it is to take the second column from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4005 47KLSAT1 1 the left or the second and third columns from the left and move 2 them up so that the space is half at the top and half at the 3 bottom of that column. 4 MR. BARKOW: I don't think that works, your Honor, 5 because the bottom here, there's three, and then this piece 6 here is on the bottom which is a separate -- I think this is 7 actually the fatwa. It cuts over into the fourth column from 8 the left. So even if one were to move these up, then this one 9 here would still be dangling, so to speak, at the bottom, and 10 then this would be white space here. So the only way to make 11 it compact would be to turn it on its side or something like 12 that. So it seems like the only way to keep it together is 13 just to cut out the middle. 14 THE COURT: I think what Miss Shellow-Lavine was 15 saying would be, you can take the second, third and fourth 16 columns up to the beginning of the fatwa on the right and move 17 those up. It would reduce probably by a third the white space 18 at the top and the white space to the bottom. Since the 19 assumption is that the jurors can't read Arabic in any event, 20 if some Arabic is cut off in doing that, it will not be a 21 problem. We've left in Arabic as redacted from the 22 translation. But it just moves that space up and reduces the 23 amount of uninterrupted white space. 24 MR. BARKOW: On the bottom, your Honor -- this is from 25 Al-Quds Al-Arabi. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4006 47KLSAT1 1 THE COURT: You can talk about it, but another way of 2 doing it is simply to take the second and third column in their 3 completeness at the bottom and move those up. It would -- 4 those two, just move it halfway up. It will leave white space 5 at the bottom of the second and third columns, but less white 6 space at the top, and it will leave a column of white space in 7 what would otherwise be the fourth column. 8 MR. BARKOW: I guess the other issue is we had 9 intended to start with this. Can we hold this up to jury this 10 way and then do the cutting and pasting later? 11 THE COURT: It won't take long. 12 MR. BARKOW: Can we take a break? 13 THE COURT: Would everyone agree with that as a 14 reasonable way to present it. 15 MS. SHELLOW-LAVINE: Thank you, your Honor. That 16 would be good for us. 17 THE COURT: Okay. 18 MR. MORVILLO: Your Honor, may I be excused for a 19 minute? 20 THE COURT: Sure. 21 MR. BARKOW: The other thing we wanted to raise -- and 22 obviously, as we said yesterday, as Ms. Baker said yesterday, 23 we can't take a position on -- this relates to the redactions 24 of the prison visits. We obviously can't take a position on it 25 yet because we don't know what's in there. But we just wanted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4007 47KLSAT1 1 to make the Court aware of the logistical issue as we see it 2 now. 3 Our versions of these transcripts of prison visits are 4 essentially ready. There won't be really any really 5 significant, if any, changes from the last changes, what we 6 were to offer into evidence. But obviously the remainder, the 7 part defendants proposed yesterday to offer into evidence, that 8 is, the parts that were redacted or minimized, are not ready. 9 And we don't know how much was redacted because we're not aware 10 of the content, but we believe it's several hours. 11 It took us years really to get the parts that we want 12 to offer into evidence ready. And we think that it would 13 take -- we don't really know, but we think it would take weeks 14 to get the rest ready in a similar fashion. That included 15 transcription in a final form, enhancement of the audio on that 16 part, and -- excuse me, I guess the enhancement is done for the 17 whole part, but the transcription then is the issue of the 18 remaining parts. To finalize that could take some time. We 19 don't know how long. 20 And we can't take a position on yet as what our view 21 is as to whether those other parts are admissible, but we just 22 wanted to make the Court aware, and if it turns out that we 23 don't agree or we don't believe that those parts are 24 admissible, then we might be in a position where we 25 unfortunately might need -- not have anything to do for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4008 47KLSAT1 1 sometime. And we think that it might be -- and again, we don't 2 have a -- we're not taking a position on this yet, but the -- 3 it might be quicker and -- to at that point engage in a 4 completeness analysis of whatever parts the defendants might 5 try to cross designate than it would be to have the government 6 go back and finalize the entirety of those redacted parts, 7 which we do think would take some decent amount of time, though 8 we don't know how much. So we just want to do put that out on 9 the table so the court's aware of what we see as a logistical 10 hurdle we might be approaching. 11 THE COURT: There's nothing for me to rule on right 12 now. I just -- there are a couple of practical suggestions 13 that I make to you: 14 Your position, Mr. Barkow, is somewhat inconsistent 15 with Ms. Baker's position yesterday. Not from a legal 16 position, but from a strictly practical position that it may be 17 in -- that the government would not want to put in parts of the 18 transcripts, and if the defendants sought to introduce the 19 other parts as part of their own case, the government would 20 seek to put in the whole. 21 MR. BARKOW: What I am saying is, I guess, correct, is 22 slightly different than what Ms. Baker said yesterday, and the 23 explanation is last night we went back and talked about this in 24 some more detail and -- 25 THE COURT: But you should ask yourself if the best SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4009 47KLSAT1 1 solution for all parties is to have all of the transcripts 2 admitted at the same time, how that could best be accomplished, 3 if it can be accomplished? That's the first point. And it 4 really is, from a practical standpoint, not from a legal 5 standpoint -- I realize there are all of the issues with 6 respect first of all to the stipulation; and secondly with 7 respect to a completeness analysis, and you could introduce 8 those as part of your own case and take all of the risks that 9 Ms. Baker want to do avoid yesterday. 10 The other observation that I would make to you is you 11 should, as soon as this issue is, as I expect will be, resolved 12 quickly, with respect to Mr. Ruhnke's letter, it may be that 13 the defendants say they've been working on these transcripts 14 for a long time, and they've had access to this. The 15 government may or may not agree with those transcripts. I know 16 the government's been working on their transcripts for a long 17 time. But the government may eventually think that the defense 18 transcripts or the defense portions are just dandy. 19 MR. BARKOW: I guess the problem is if they were to 20 give us their proposed transcripts we would need to ask the 21 same people to verify the accuracy of those that we would need 22 to have transcribed. And while that might be a faster process, 23 we, obviously, don't think we would be able to figure that all 24 out, although I know Ms. Stewart's proposal relates mostly to 25 English. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4010 47KLSAT1 1 THE COURT: And you also have it within your power, 2 unlike really the portions that you offer as part of your case, 3 if the defendants seek essentially to have cross-designations 4 and they say, Okay, just listen to the rest of the tape, and 5 here's our proffer with respect to the transcripts, you know, 6 from a practical standpoint, you certainly should ask yourself 7 the question: Is there anything in those translations that we 8 care about? 9 MR. BARKOW: Right. Your Honor, we're not taking a 10 position now because we don't know what's in there. We just 11 wanted to let the Court -- because yesterday Ms. Baker said 12 what she said and because last night we talked about it, we 13 wanted to make the Court aware that that wasn't entirely where 14 we're at right now. 15 THE COURT: I know. But then also, when I say that 16 the position you're taking today is different from the position 17 Ms. Baker took yesterday, don't look at me quizzically as 18 though you don't understand what I'm saying. 19 MR. BARKOW: No, no. I agree, your Honor. What I'm 20 saying today is different than what Ms. Baker said yesterday. 21 So my facial expression was -- I don't know what I was 22 expressing with that. 23 We're not taking a position right now. And we can't 24 until we know what's in there. But what motivated us today in 25 raising this to your Honor was, one, just to put on your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4011 47KLSAT1 1 Honor's radar screen the logistical issue that we saw perhaps 2 coming down the road. And secondly to raise it because -- 3 THE COURT: As the logistical issue, let me just point 4 out -- I mean, the number of -- the amount of additional 5 evidence which is admitted in terms of the telephone calls 6 alone are -- 7 MR. BARKOW: Well, at this point your Honor, actually, 8 we've estimated and I don't know that the reading of those 9 calls will take all that long. 10 THE COURT: Including 1300 and 1301? 11 MR. BARKOW: The transcripts for the 1300 disk are not 12 entirely complete yet. And so we don't have an exact or 13 reliable estimate of how long it will take to presents those. 14 Of the remaining ones on the 1000 DVD, there are a number that 15 would take us up to -- and this is the second issue I wanted to 16 raise, that it will take us up to, for not chronologically, the 17 February 21000 prison visit. And it was our strong desire to 18 present this case to the extent possible in some sort of 19 chronology. And the logistical issue with respect to the 20 prison visits, this says what we discussed last night, we fear 21 might substantially disrupt our order of presentation. So 22 although there are some calls -- if we were to go through for 23 example on the 1000 DVD to the end, we would have calls I think 24 from 2001, and that is simply not the way that we would like to 25 present the evidence. And we think that -- and we recognize SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4012 47KLSAT1 1 the issues with respect to the use of jury time and the like, 2 but we also think that we're being -- we've been put into a 3 situation here where a day or two before we wanted to present 4 this February 2000 prison visit, this issue has been put onto 5 the table by the defendants, and we don't think that our 6 presentation of the case should entirely bear the brunt of what 7 we view as a rather late clearly stated position by them. 8 MR. RUHNKE: Your Honor, I was able yesterday to write 9 this off as a miscommunication. But for the last two weeks 10 we've been talking with government representatives including 11 Mr. Barkow about playing prison visits and phone calls from 12 start to finish. It is difficult for me to understand how that 13 was misunderstood. But I'll accept that it was misunderstood. 14 So we'll leave it as a misunderstanding, it should not be left 15 as, this is what the defense has done to the poor government. 16 I'm willing to leave it as a miscommunication. I'm not willing 17 to leave it as a case of the defense somehow springing a trap 18 on the unwary government. 19 MR. BARKOW: I'm not suggesting that. 20 THE COURT: Stop. 21 MR. RUHNKE: That it would be a week or two before 22 they started to play the visits. And that is one of the 23 reasons the discussions were kind of ongoing in an unurgent 24 way. 25 I'm not asking your Honor to decide anything, I'm just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4013 47KLSAT1 1 putting forth a different perspective. 2 MR. BARKOW: Your Honor, I'm sorry. I'm not 3 suggesting that it was a trap. I'm only saying that -- and 4 I'll accept that it was a miscommunication, because I think 5 that subsequent conversations between us and Mr. Ruhnke have 6 made clear that, at least in our conversations with him, we 7 were not on the same page as to what was going on. And it was 8 a misunderstanding, I think, on both sides. 9 But, because of that misunderstanding, we're in this 10 position now. And that is all I meant to say, is that we don't 11 think that our order of presentation should bear -- entirely 12 bear the brunt of that misunderstanding. And I don't mean to 13 say that Mr. Ruhnke misled us, and I don't mean to say that 14 there was any bad faith at all in what Mr. Ruhnke was doing in 15 his discussions with me. But I really do think, reflecting 16 back on the conversations I had with him, we completely 17 misunderstood each other, and that's unfortunate, but that's 18 where we are now. 19 MR. TIGAR: Your Honor, I don't want to get into the 20 middle of this one, but I have a practical problem: I spoke to 21 Mr. Dember this morning about a witness named Noel Herold who 22 did the enhancement on the prison tapes. And I had agreed with 23 Mr. Dember that I was not going to make an issue out of, you 24 know, You enhanced these first; you didn't enhance those; and 25 these were differently treated than those -- because I thought SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4014 47KLSAT1 1 that the whole issue, who was going to present what and how, 2 was going to be resolved basically all at once. There's no 3 reason for me to try to make some untoward suggestion about the 4 government's desire to limit what the jury hears if indeed 5 that's not what's going to happen, and I'd like to stick to 6 that. 7 So if there's going to be some sea change in what I 8 have thought was, you know, an orderly process towards a 9 resolution, then we should know it. I take it, from what I've 10 heard, it's not. 11 I would comment that, chronologically, we started with 12 Mr. Fitzgerald and Mr. Francisco, and then we had a playing of 13 a tape of a reading of the SAM of Sheikh Rahman in May of 2001. 14 So the chronological sweep has at times for other reasons been 15 interrupted without noticeable harm to the integrity of 16 anything. 17 THE COURT: That's a fair point. It makes so much 18 sense to try and get these done all at the same time. For the 19 reasons that Ms. Baker said yesterday, and for the reasons that 20 defendants have said. 21 It's also -- I don't want to go over the 22 correspondence and conversations between the parties, but on 23 the level of miscommunication, I place some weight on what 24 Mr. Ruhnke says about when he expected the prison tapes to be 25 played. Which was not like, you know, today or quickly. That SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4015 47KLSAT1 1 there was going to be a little time. 2 At the same time, I ask myself when were the 3 defendants going to come forward with their transcripts and the 4 like for the remainder of the prison recordings that were not 5 being offered by the government. And I also ask myself -- I 6 know that these final transcripts are almost the same as the 7 last set of transcripts that the defendants have had for 8 sometime. 9 At the same time, I place some credence on what 10 Mr. Ruhnke said about when the final transcripts that were 11 actually going to be offered were given because it reflects 12 something about when in the orderly presentation of the case it 13 was expected that the prison recordings would be read or 14 introduced. 15 So it really behooves the parties to try and move this 16 along, and, Mr. Ruhnke, it would be really useful for you to 17 not only write the letter to Mr. Schmidt but talk to 18 Mr. Schmidt. 19 MR. RUHNKE: I sent the letter, I faxed the letter 20 relatively late last night. I intend to call him this morning 21 or as soon as I can practicably do that. 22 THE COURT: Because I really have to -- if a response 23 is not promptly forthcoming, I'd have to look at the order and 24 ask myself whether I should simply follow the order and 25 stipulation to move this along. Because there are procedures SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4016 47KLSAT1 1 that the parties have agreed to and that I had ordered, and a 2 copy of that order I'm confident was sent to, I believe, 3 counsel for Sheikh Abdel Rahman at the time. 4 MR. RUHNKE: I think so, your Honor, yes. 5 THE COURT: And as to timing, it seems to me that the 6 the parties are moving the case along with some expedition in 7 terms of blanket examinations and stipulations and where we are 8 in terms of trial days and the evidence. I could be wrong on 9 that, and it may change day-to-day. But that's no reason that 10 we shouldn't continue to move along in an expeditious fashion. 11 Anything else? Is the -- the article is being done? 12 I haven't double-checked the -- checked the redactions, but 13 they appeared to be in accordance with my opinion. Redacted 14 another three paragraphs. 15 MR. BARKOW: Your Honor, we will check again. 16 Ms. Baker prepared that exhibit. I have not actually examined 17 it. So I cannot say myself that it has those other paragraphs 18 taken out, but -- 19 MR. MORVILLO: Your Honor, I'm not sure if they've 20 been taken out in the Arabic, but I know they've been taken out 21 in the translation. 22 THE COURT: No -- in the translation? 23 MR. MORVILLO: Yes. 24 THE COURT: Yes. Anything else? 25 MR. MORVILLO: Your Honor, Miss Grant informs us it's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4017 47KLSAT1 1 going to take about a half hour to prepare this final copy of 2 the exhibit. That was about 15 minutes ago. 3 MS. GRANT: I'll go back at 10:25. 4 MR. MORVILLO: 10:25. 5 THE COURT: Okay. Anything else for me? We'll take 6 10 minutes and Mr. Ruhnke can make his call. 7 MR. RUHNKE: Thank you. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4018 47KSSAT2 1 (In open court; jury not present) 2 THE COURT: Good morning. 3 Please be seated all. 4 MR. RUHNKE: Your Honor, I can bring you up to date 5 quickly. I spoke with Mr. Schmidt during the break. He is 6 aware and understands the situation and the need for a quick 7 answer. He is going to speak with Mr. Clark and confer with 8 him and then we will talk some more. He is going to get back 9 to us. 10 THE COURT: All right. 11 MR. BARKOW: Your Honor, Mr. Morvillo went back to the 12 litigation support section of our office to bring back the 13 exhibit as soon as it's done. He hasn't made it back yet. 14 Mr. Dember just stepped out to go to the rest room. 15 THE COURT: Mr. Barkow, with respect to 508, there was 16 an issue that I left with you with respect to the translation, 17 whether that was the translation. 18 MR. BARKOW: There is a stipulation, your Honor. Yes, 19 there is a stipulation that is agreed to on that. 20 THE COURT: Okay. 21 MR. MORVILLO: Your Honor, can I hand up what the 22 redaction looks like? 23 THE COURT: Surely. Show it to defense counsel 24 please. 25 MR. MORVILLO: Ms. Shellow-Lavine said it was lovely. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4019 47KSSAT2 1 THE COURT: Okay. 2 MR. MORVILLO: Your Honor, as a result of the delay 3 here, it's my understanding that we have a witness who is ready 4 to go right now who was hoping to catch a train this afternoon 5 to go back to Washington. So Ms. Baker is walking over with 6 him and they should be here in a minute. 7 THE COURT: All right. 8 While we have a minute, let me raise another issue. 9 I have asked the government to provide an exhibit list 10 and there was an updated exhibit list with the dates when 11 documents are in evidence and I appreciate that, and then there 12 was an amendment to the last few pages. 13 I would ask, in view of the number of exhibits in the 14 case, for defense counsel also to check the list on an ongoing 15 basis so that you are all on board with respect to the same 16 list. 17 MS. SHELLOW-LAVINE: Your Honor, I have been checking. 18 As we receive it on a rolling basis I try and check theirs 19 against mine. 20 THE COURT: Great. Thank you. 21 And I don't know how often the government is going to 22 give me an updated list. 23 MR. MORVILLO: How often would you like one, your 24 Honor? We can do it on a daily basis if you like. We can do 25 it on a weekly basis. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4020 47KSSAT2 1 I am told we don't update our list every day but we 2 can certainly do it on a weekly basis. 3 THE COURT: A weekly basis is fine. 4 MR. MORVILLO: Your Honor, may we bring the witness 5 in? 6 THE COURT: Yes. 7 All right, are we ready to bring in the jury? 8 MS. BAKER: Yes, your Honor. 9 (In open court; jury present) 10 THE COURT: Please be seated all. 11 Good morning, ladies and gentlemen. Good to see you 12 all. 13 Again, ladies and gentlemen, as I told you before, if 14 there seems to be some delay in bringing you out in the 15 morning, there are things that I take care of before you come 16 out and I hope that it expedites the time that you are sitting 17 in the jury box. I understand the chairs are not all that 18 comfortable, so if I can take care of those issues and use your 19 time better while you are in the jury box, I try to do that. 20 So I appreciate your indulgence. 21 The government may call its next witness. 22 MS. BAKER: The government calls Noel Herold. 23 NOEL HEROLD, 24 called as a witness by the Government, 25 having been duly sworn, testified as follows: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4021 47KSSAT2 Herold - direct 1 DIRECT EXAMINATION 1 47KSSAT2 Herold - direct 2 BY MS. BAKER: 3 Q. Mr. Herold, the acoustics in this room are not very good, 4 so please pull the microphone towards you a little bit and try 5 to make sure to speak into it and keep your voice up. 6 Who do you work for? 7 A. I am a contractor for the Federal Bureau of Investigation 8 at Quantico, Virginia. 9 Q. What facility of the Federal Bureau of Investigation do you 10 work at? 11 A. It's called the Engineering Research Facility. 12 Q. How long have you been working as a contractor for the FBI? 13 A. Since June of 1996. 14 Q. In very general terms, what kind of work do you do for the 15 FBI as a contractor? 16 A. Well, before I was a contractor I was an employee with the 17 FBI for almost 27 years. And I supervised -- I worked in the 18 field and came to the lab and worked in firearms identification 19 and then I eventually moved to the electronics engineering, and 20 I have been in engineering for almost 20 years, actually almost 21 25 years, and I supervise cases and work cases and supervise 22 people underneath me. When I became a contractor I no longer 23 had the supervisory responsibilities but I continued to work 24 cases. 25 Q. Let me ask, and let's back up and come forward SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4022 47KSSAT2 Herold - direct 1 chronologically. 2 What is your college degree in? 3 A. I have a Bachelor of Arts degree in atomic and nuclear 4 physics. 5 Q. What did you do before you joined the FBI? 6 A. I worked for Grumman Aerospace for approximately 5 years on 7 the project Apollo primary guidance and navigation subsystem. 8 Q. And in what field or capacity were you working for Grumman? 9 A. Well, I was considered a physicist in the test and support 10 of the guidance equipment on the Apollo lunar module. 11 Q. In what year did you first start working for the FBI? 12 A. I worked for them in January of 1970. 13 Q. Were you a special agent for the FBI initially? 14 A. Yes. 15 Q. Where were you assigned initially as a special agent for 16 the FBI? 17 A. I was assigned to the Cincinnati office where I worked 18 fugitive cases and then I was assigned to the New York office 19 where I worked organized crime. 20 Q. Where were you assigned next with the FBI? 21 A. Then I was assigned to the Laboratory Division, Firearms 22 Identification Unit. 23 Q. How long did you do that? 24 A. I was there for approximately 3-1/2 years. 25 Q. Basically were you doing the examination of firearms, guns, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4023 47KSSAT2 Herold - direct 1 in that position? 2 A. That is right. 3 Q. And when did you begin working in the radio engineering 4 section, or now the engineering section, of the FBI? 5 A. It was approximately May of 1975 I started working there. 6 Q. And what sorts of work have you done over the time that you 7 worked in that capacity both while you were employed by the FBI 8 and now in your capacity as a contractor? 9 A. Well, I worked on of course firearms and I worked on 10 testing silencers because if the device is a silencer for a 11 firearm that is a federal crime. So we have to determine 12 whether it is or not. I have worked on acoustics. I worked on 13 video enhancement, audio enhancement, copyrighted video and 14 audio. I have done some instructing and I worked on 15 authenticity of audio and video as well. 16 Q. What, if any, specialized training have you received that 17 relates to the work that you do with audio and video? 18 A. Well, as to firearms primarily the training is with an 19 experienced examiner. You work on cases with them and you 20 understand how things are done and what kind of problems you 21 are faced with. And in addition to that there are many books 22 and there are many symposiums that are provided by various 23 companies, like Panasonic and Sony, that give us instruction. 24 Q. Have you previously testified in any courts as an expert in 25 the handling or processing of audio and/or video? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4024 47KSSAT2 Herold - direct 1 A. Yes, I have. 2 Q. About how many times? 3 A. Roughly 90 to 100 times. 4 Q. In what sorts of courts generally where? 5 A. Well, I testified in state court, local court, federal 6 court, and international courts. 7 Q. Have you lectured or given any training to anyone else in 8 fields relating to the examination and processing of audio or 9 video? 10 A. Yes, I have lectured to our new agents, classes that come 11 into the academy, and to the TTAs, technically trained agents, 12 who come back from the field and they receive training from us 13 on technical matters. 14 I have also provided some training and lectures to 15 NATIA, the organization that is the National Association of 16 Technical Investigators. 17 Q. That was an acronym N-A-T-I-A? 18 A. Yes, it is. 19 Q. Have you had any articles or other writings published on 20 subjects that relate to the examination or processing of audio 21 or video? 22 A. Yes, I have had a couple of articles published, one on 23 audio copy writing and one on video, and another one on setting 24 up video and audio laboratories for police. 25 Q. So in total for about how many years have you conducted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4025 47KSSAT2 Herold - direct 1 examinations and been involved in processing audio and video 2 recordings? 3 A. Oh, almost 30 years. 4 Q. Can you estimate at all how many audio and video recordings 5 you have examined and processed during that period of time? 6 A. Well, it probably averaged about 3-1/2 tapes per case and I 7 work close to 200 cases a year. So if you do the math on that, 8 it's thousands of tapes. 9 MS. BAKER: Your Honor, the government offers Mr. 10 Herold as an expert in the examination and processing of audio 11 and video recordings. 12 MR. TIGAR: May I inquire briefly, your Honor? 13 THE COURT: Yes. 14 VOIR DIRE EXAMINATION 15 BY MR. TIGAR: 16 Q. Mr. Herold, are you going to be telling us today about 17 analogue originals or digital originals? 18 A. These original tapes are analogue tapes. 19 Q. And that has been the field in which you have been doing 20 most of your work over the years, correct? 21 A. Well, that is the field that everybody has been doing most 22 of the work because digital is rather new and, like everybody 23 else, I have been introduced to the new digital world. 24 Q. So you are not here to talk to us at all about any digital 25 originals, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4026 47KSSAT2 Herold - direct 1 A. Not digital originals, no. 2 MR. TIGAR: We have no objection, your Honor. He is 3 an expert as far as we are concerned. 4 THE COURT: All right. With that consent, that is 5 fine. 6 DIRECT EXAMINATION (Continued) 7 BY MS. BAKER: 8 Q. Mr. Herold, let me ask you now about the work that you 9 performed in connection with this case. 10 Did you process certain audio and video recordings in 11 connection with this case? 12 A. Yes, I did. 13 MS. BAKER: Your Honor, may I approach the witness? 14 THE COURT: Yes. 15 Q. Mr. Herold, I have placed there on the witness stand next 16 to you 26 tapes that are marked for identification as 17 Government Exhibits 1700 through 1725. 18 Did you have an opportunity yesterday evening to 19 examine each of those tapes more closely? 20 A. Yes, I did. 21 Q. Based on your examination of those tapes yesterday evening, 22 did you recognize them? 23 A. Yes, I did. 24 Q. What are they? 25 A. These are tapes that were received by me in our engineering SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4027 47KSSAT2 Herold - direct 1 laboratory in the course of business in a sealed envelope. 2 Q. How is it that you were able to recognize each of them as a 3 tape that you received? 4 A. My initials and laboratory number and date are on each 5 tape. 6 MS. BAKER: Your Honor, I would request permission to 7 display as an example Government Exhibit 1700 on the ELMO, the 8 label. 9 MR. TIGAR: No objection, your Honor. 10 THE COURT: All right. We can do that. 11 Q. I think I am going to have to hold it here for the moment. 12 Mr. Herold, would you explain which markings on this 13 label were made by you that allow you to recognize the tape? 14 A. Well, the Q11, my initials, the laboratory number, and 15 under that there is a date. 16 Q. Immediately to the right of the Q11 there is a little 17 marking. You indicated those are your initials? 18 A. Yes, and they are my initials NH compressed. 19 MS. BAKER: I am sorry, your Honor, I apologize for 20 interrupting the witness. I didn't realize it wasn't displayed 21 to the jury. 22 May we do that? 23 THE COURT: Yes. 24 MS. BAKER: Thank you. 25 Q. I am sorry, would you repeat what you said about which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4028 47KSSAT2 Herold - direct 1 markings are yours? 2 A. Well, the Q11 is our laboratory sequential number and it 3 was assigned under the laboratory number. My initials follow 4 the Q11, and then there is a laboratory number along with my 5 lab initials following that. And underneath is the date at 6 which I opened the tape. 7 Q. And you were about to explain the little marking next to 8 the Q11 and how that represents it. 9 A. When we worked at firearms we had to mark tiny fragments of 10 metal and tiny pieces of cartridge cases and so we compressed 11 our initials so we can make them out, and that is just the way 12 I did it. I compressed the N and the H together. It's kind of 13 laying on its side but that is an H. 14 Q. Let me ask you about the left-hand most markings that you 15 put there, the Q11. 16 Was each of these original tapes that you received and 17 worked with assigned a different Q number? 18 A. When a case comes into the Laboratory Division, whether 19 it's a state, local or federal case, it's assigned a bureau 20 file number and that file number follows the case throughout. 21 So if there are additional submissions that file number is 22 always referred to. 23 So this case was assigned a file number and when they 24 looked at the submissions that had previously been submitted on 25 this case, the last submissions preceded Q11 so the next SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4029 47KSSAT2 Herold - direct 1 submission would have been Q11. So Q11 was assigned to that 2 and you might have Q11, Q12, Q13 and there might be additional 3 submissions on some other point on some other venue, and then 4 that is supplied by the Evidence Control Group in the lab and 5 they are the ones that assign all the Q numbers. We simply go 6 by whatever their assignment is. 7 Q. Within anyone FBI case number, should each Q number be 8 different so that each piece of original evidence has a 9 different identifying Q number? 10 A. It can. Sometimes they can get crossed up and sometimes 11 you will have the same Q numbers assigned over again but that Q 12 number goes to that particular lab number, which is a 9 digit 13 followed by the 2 letters, and so that makes it unique. Even 14 if you had a repetition of the Q numbers it would still apply 15 to that particular lab number. So that makes it unique. 16 Q. And if the FBI assigns more than one case number to things 17 that eventually end up as part of the same prosecution, can you 18 end up with items in as evidence in the same prosecution that 19 have the same Q numbers because they had different FBI file 20 numbers or laboratory numbers? 21 A. That is conceivable, yes. 22 Q. To your knowledge, in this series of 26 tapes that I am 23 asking you about now, does each tape have a different Q number? 24 A. Yes, they do. 25 Q. Are all of those Q numbers sequential or are there some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4030 47KSSAT2 Herold - direct 1 gaps? 2 A. There are some gaps but they are sequential as to how at 3 the time that they were received, so a tape with a higher Q 4 number was received later than a tape with a lower Q number. 5 Q. And as far as gaps in Q numbers and how that can occur, 6 other than possibly misnumbering, could it occur because a 7 particular item came in and was handled by someone else in a 8 laboratory other than you? 9 A. Sure. It could have been assigned to somebody in serology, 10 firearms, hairs and fibers, even the fingerprint division. So 11 it could have had its own Q number and by the time you see the 12 next Q that you are going to work on you may have gone through 13 several Q numbers. 14 Q. As part of the work that you did with these 26 tapes, did 15 you watch and listen to each of the tapes when you received it? 16 A. Yes. Each tape was played back in the proper play-back 17 system and the video and the audio signals were monitored and 18 determined what types of signals they were. 19 Q. Generally speaking, are these recordings recordings of 20 people talking? 21 A. Yes, generally speaking these are recordings of a 22 conversation with a number of people and the camera view is 23 from basically overhead of the participants. 24 Q. So these were in-person conversations as opposed to 25 telephone or some other method? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4031 47KSSAT2 Herold - direct 1 A. Yes, these are in-person conversations. 2 Q. Now, I am going to ask you in detail what you did but let 3 me ask you first the overall purpose. 4 With respect to the audibility of these recordings and 5 the words spoken in the recordings, what was the purpose of the 6 processing of the recordings that you did? 7 A. In this particular case these recordings were made in the 8 same environment, that is, the same room, microphones in 9 relation to the people in the room, and the objects in the room 10 were the same, it didn't vary, not significantly at least. And 11 the audio quality of these conversations is very good. 12 Compared to what we normally get it was very good. 13 And I would rate the intelligibility of these 14 conversations as good and the signal and noise ratio maybe fair 15 to good only because at times some of the participants were 16 talking very low and you have to strain to listen. But the 17 intelligibility was still good. 18 Q. And what was your purpose in processing the recordings? 19 What was the goal of that processing? 20 A. The goal in enhancing either video or audio, in the case of 21 audio, the idea is to render the conversations more 22 intelligible and you have two elements in a conversation. You 23 have the signal, the conversation you want to hear, and you 24 have everything else that interferes, and that is noise. And 25 so we always strive to improve the signal-to-noise ratio when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4032 47KSSAT2 Herold - direct 1 we work on enhancing audio. 2 Q. Are all 26 of these tapes of the same type, the original 3 tapes? 4 A. Yes, they are. 5 Q. What type is that? 6 A. These are all high 8 millimeter video cassette tapes. 7 Q. Is high 8 millimeter a good quality original to make a 8 recording? 9 A. Yes, high 8 is one of the higher quality of the analogue 10 recordings, very good quality. 11 Q. Now, you said that you watched and listened to the original 12 tapes. What was your purpose in doing that? 13 A. Well, my purpose in listening to the tapes is to determine 14 what types of noise are present and what type of electronic 15 enhancement or filtering we can do to perhaps make the 16 conversations even more intelligible. 17 Q. As a result of your watching and listening to each of the 18 tapes, were you able to determine whether each of the tapes was 19 in fact an original tape? 20 A. Yes. I examined each of the tapes and through the video 21 and audio signals determined they were original recordings. 22 Q. If any of the original tapes had been edited or altered in 23 any way, would you have been able to detect that through your 24 examination of the tapes? 25 A. Yes, any editing on an original tape would be immediately SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4033 47KSSAT2 Herold - direct 1 obvious. 2 Q. Could you explain a little bit how you would be able to 3 detect that? 4 A. In order to alter -- and bear in mind these tapes are made 5 continuously at the time they are made. They started, the 6 conversation ensues, and they are stopped. In between there 7 are no stops and starts. So if you were to alter the tape you 8 would have to disrupt that flow of information, that video and 9 the audio. It has to be disrupted in order to take something 10 out or insert something, whatever you were going to do. And 11 there was absolutely nothing like that on these tapes at all. 12 They were pristine, continuous tapes. Any disruptions is 13 immediately obvious. 14 Q. And is that true for each of these original tapes marked as 15 Government Exhibits 1700 through 1725? 16 A. Yes, it is. 17 Q. Now, you started to tell us a few minutes ago about your 18 opinion about the quality of the original recordings. Let me 19 ask you a little bit more about that. 20 The opinion that you were expressing, is that as to 21 the audibility or how clearly one can hear the spoken words in 22 the recordings? 23 A. Yes. 24 Q. What scale or what categories do you use when you are 25 rating the quality of original recordings? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4034 47KSSAT2 Herold - direct 1 A. Well, I just have three scales -- poor, fair and good. 2 Q. Now, you said a little bit earlier that in terms of I think 3 you said intelligibility that you rated these 26 original 4 recordings as good in terms of intelligibility? 5 A. Yes. 6 Q. So that is the highest of your three categories? 7 A. Yes. 8 Q. And then you made reference to I believe you said the 9 signal-to-noise ratio. 10 A. That is right. 11 Q. Would you explain a little more what that means? 12 A. In any environment where you are making a recording of an 13 audio tape, an audio recording, one of the factors that 14 interferes with the quality or the intelligibility of the 15 recording are the acoustics of the room. For example, this 16 room here has a lot of marble wall and those marble walls are 17 reflective of sound. 18 So if I have a microphone and I have somebody I want 19 to record and their voice is coming directly to the mic., that 20 is what I want to hear. But the voices are omnidirectional, so 21 your voice goes also to the ceiling, the walls, and the floor 22 and it bounces off and it comes back to the mic. eventually 23 from these reflected surfaces. But because the path is longer 24 the time is longer and so these signals that come to the mic. 25 are called out-of-phase signals. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4035 47KSSAT2 Herold - direct 1 And in a small room where there isn't a lot of 2 reflective surfaces it tends to make the voice a little muddy 3 and of course even muddier if the convoluted noises or the 4 noises reflected off surfaces are even greater. 5 An example of a terrible situation is you have 6 probably been in a stairwell that has nothing but concrete and 7 steal around it and you are trying to talk to somebody and you 8 can hardly hear each other talk because all the sounds are 9 coming off the walls and ceilings and steps and it's hard to 10 hear, and that is called convoluted noise and interferes with 11 the intelligibility of what you are trying to hear. And that 12 is true of almost all environments unless you are sitting in an 13 anti-echo chamber, and that is a surface with no reflective 14 surfaces at all, and then you have pristine conversations with 15 the mic. and that is ideal. But that is not the real world. 16 Q. Now, I believe you said earlier that in terms of the 17 signal-to-noise ratio you rated these 26 original recordings as 18 fair to good? 19 A. Yes, the signal-to-noise ratio was fair to good and mainly 20 another factor is that if somebody talks at a very low volume 21 you may have trouble, you have to lean in to listen to them so 22 you want to turn the volume up basically to hear what they are 23 saying because they are talking low. And that would really be 24 the genesis of my opinions that some of the signals were fair 25 because the fact the signal was low and it was getting down SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4036 47KSSAT2 Herold - direct 1 into the noise, the floor noise we call it of the audio, but 2 still above it enough that it was fair. 3 Q. Based on your experience over the years and the large 4 number of other recordings that you have dealt with, how do 5 these original recordings compare? 6 A. These are great. We get some ghastly recordings in and 7 these compared to those are fabulous. 8 Q. What form of audio or in what form is the audio recorded on 9 these original high 8 tapes which are marked as Government 10 Exhibits 1700 through 1725? 11 A. About 15 years ago, 15 to 20 years ago, Sony came up with a 12 system to improve the audio quality of their Betacam tapes they 13 call them. They call them Betamax. And what they did is they 14 took a track that is still on the VHS tapes. It's a track that 15 runs along the edge of the tape and it's a linear track of 16 audio and it's like reading a cassette. A cassette recording 17 is a linear track. It's just a linear recording that runs 18 right along the tape and it plays through. 19 The quality of this recording, the audio, can be 20 fairly poor especially if the tape is recorded in a slow speed, 21 like a 6-hour speed. So Sony came up with the idea, well, 22 let's use the heads on the drum, these flying heads that come 23 around and pick up the video, let's incorporate audio heads on 24 the drum and let's multiplex or combine the audio signal on the 25 video part of the tape and have these heads just read the audio SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4037 47KSSAT2 Herold - direct 1 signal. So it's called hi-fi, and they fully put two tracks of 2 information multiplexed on the video portion of the tape called 3 hi-fi stereo. 4 VHS did the same thing. They came up with their own 5 scheme to multiplex the audio signal. So hi-fi stereo, VHS or 6 high 8, or in some cases even 8 millimeter, has high fidelity 7 stereo audio and it's very high quality. And that is what 8 these tapes have, hi-fi stereo. 9 Q. Now, based on the explanation that you just gave of how the 10 audio is recorded on this type of tape relative to the video, 11 is it possible for someone to edit or alter audio on this type 12 of tape without disrupting the video as well? 13 A. No, you can't de-multiplex the signal. Once it's recorded 14 in a multiplex fashion if you try and alter one you alter the 15 other. So you can't do any editing on a hi-fi signal. 16 Q. Based on your examination of the 26 original tapes, what 17 did you learn about whether any of the tapes have the same 18 content as each other? 19 A. By content you are referring to -- 20 Q. The same events or conversations recorded on them. 21 A. Yes, the participants and the environment are virtually 22 identical on all the tapes. 23 Q. Do you have an opinion based on what you saw from examining 24 the tapes whether any of the tapes were recorded at essentially 25 the same time as each other? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4038 47KSSAT2 Herold - direct 1 A. Well, apparently when they made these recordings they were 2 concerned because the high 8 tapes can record in one of two 3 modes. One is SP or 2-hour mode, and the other mode is LP or 4 4-hour mode. 4-hour mode, because it records longer, you 5 suffer some quality in the audio and video. You don't get 6 something for nothing in the physical world. 7 So to optimize the audio and the video they decided we 8 can record everything in the 2-hour SP mode. The problem this 9 brought in is, well, now if we do that and the conversations 10 run more than 2 hours we have a problem because we are going to 11 be reloading tapes and the conversation is going to continue 12 and we are going to be missing those parts of the conversation. 13 So they employed a single camera but they employed two 14 recorders. So they started one recorder to start playing and 15 recording the entire event and just before that ran out, 16 before -- they started another recorder several minutes later. 17 In other words, maybe ten minutes later they started another 18 recorder recording the same events so when the first one ran 19 out the second one was still recording and if they had to they 20 could change tapes and not miss any of the recording because 21 one of the two recorders is going to pick up everything. And 22 this is what I say was done in this case and in a few cases 23 there are places where there was some overlapping to get the 24 whole conversation. 25 Q. So out of the set of 26 original tapes total, is it fair to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4039 47KSSAT2 Herold - direct 1 say that there are 13 tapes that are completely different from 2 each other and then the other set of 13 tapes overlap with the 3 first set tape to tape either completely or very substantially? 4 A. Yes, probably, yes. 5 Q. Now, as far as the work that you did with the recordings, 6 did you carry out certain processing of each recording in order 7 to enhance the intelligibility of the conversations as you 8 described earlier? 9 A. Yes, once we listened to the audio part of the recording, 10 we determined what types of noise and what types of problems 11 there are in order to advance the intelligibility. We attack 12 it in this case in three ways. First of all, I mentioned that 13 part of the recording has some low volume, that is, people just 14 talk low. And in order to listen to what is being said when 15 the volume was low you would naturally turn the gain up on the 16 amplifier in order to hear it louder. The problem with that is 17 if you turn the gain way up and suddenly someone talks loud you 18 can distort and blow yourself out and clip the audio and that 19 is not good. You can't do that. 20 So we have a device that owes dose it electronically 21 and we can set the threshold of where we want this device to 22 attenuate or reduce the gain of the audio. It's called a gain 23 brain. Basically it's a very simple computer that looks at a 24 threshold of an audio level and it says, okay, anything above 25 this level I am going to start reducing that level of audio so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4040 47KSSAT2 Herold - direct 1 it doesn't clip or it doesn't distort. 2 When you do that you can raise the volume of the lower 3 signals. In other words, signals that are hard to hear, they 4 are raised higher and the signals you don't want to hear that 5 are too loud are actually reduced in volume so that you have, 6 in effect, brought up the gain of the low and not disturbed the 7 gain of the high. And that is called gain reduction. 8 Q. And was that the first step of the processing that you did 9 on the recordings? 10 A. That was the first step, yes. 11 Q. Now, before we continue forward through the steps, did you 12 process -- withdrawn. 13 For each of the recordings that you did process, did 14 you carry out the same processing? 15 A. Yes, I did. 16 Q. Did you end up over time processing all 26 recordings or 17 did you not process some of them because they were completely 18 duplicative of others? 19 A. Well, the recordings I processed were all processed at the 20 instruction of the New York office. I wasn't going to worry 21 about what was a duplicate and what wasn't. They sent a 22 standard to me and they said do this and this, and that is what 23 we did. 24 Q. Before we continue talking about the processing that you 25 did, let me ask you what effect, if any, does the processing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4041 47KSSAT2 Herold - direct 1 that you did or did the processing that you did have on the 2 original tapes which are marked as Government Exhibits 1700 3 through 1725? 4 A. Well, all the enhancement and the processing was done with 5 the signal from the original tapes. Nothing was done on the 6 original tapes other than playing them back. All the recording 7 was done on a copy as a result of the enhanced signals from the 8 original tape. 9 Q. So in order to carry out the processing, do you essentially 10 play the original tape through various devices and then end up 11 with a copy recording at the end? 12 A. That is right. 13 Q. Now, I believe you just finished describing the first step 14 of the processing which was the gain reduction. Have you 15 finished describing that? 16 A. That is right, yes. 17 Q. And as a result of that, is it that things that were 18 difficult to hear on the original because they were soft are 19 made louder without distorting or making too loud the parts 20 that were already loud on the original? 21 A. That is right. 22 Q. And what is the second step of the processing that you 23 applied to the recording? 24 A. Well, the second step is a way of digitally attacking the 25 noise and the noise can be anything that is periodic in nature. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4042 47KSSAT2 Herold - direct 1 A tone is a sign wave and that is periodic. It just keeps 2 repeating. Convoluted noise, reflected noise, as long as the 3 people are talking and don't significantly change their 4 position during the recording, their convoluted noise is 5 predictable. And so the digital filter that we use is really a 6 little miniature computer and it stores tiny fractions, 7 milliseconds of time, depending on how you have the filter set, 8 of snapshots of this audio envelope that it sees. And it 9 recognizes patterns that are periodic, that keep repeating, and 10 it identifies these patterns and it says, well, I am 11 identifying this as periodic noise and I don't want it, so when 12 I output this signal on the output of my filter, I am going to 13 put it exactly 180 degrees out of phase with this unwanted 14 signal, which essentially nulls it out. In other words, if I 15 had a wave like this and I didn't want it, I would put a wave 16 like that and the result would be zero. So I null it out. 17 That is what basically this filter does. 18 Q. And is the goal of the digital filtration to remove what 19 you referred to earlier as the convoluted noise but to leave 20 intact the speech that essentially went directly into the 21 microphone? 22 A. Yes, convoluted noise is one of several types of 23 identifiable periodic noise all of which are not consistent 24 with human speech. One of the advantages of human speech is 25 it's completely random noise. There is no periodicity to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4043 47KSSAT2 Herold - direct 1 random noise. So you can take out everything that is periodic 2 I have taken out noise that is unwanted. And what you have 3 left is uncorrelated nonperiodic noise and that noise is 4 speech. Unfortunately there are some noises also that it can 5 include that are also nonperiodic, but that is not the case 6 here that we are worried about. 7 Q. What effect, if any, does the digital filtering have on the 8 words spoken in the recorded conversations? 9 A. It has no effect, or significant effect. 10 Q. Now, that was the second step of the processing. What was 11 the third step? 12 A. Well, the third step is we run it through what is called a 13 parametric equalizer, and that is simply a fancy word for a 14 bass and treble tone device and we call it parametric because 15 the low frequencies, the low mid-range, the mid-range, the 16 middle highs and the highs, all the range of frequencies can be 17 adjusted, the parameters can be adjusted quite significantly 18 and what we try and do is shape the envelope of that output 19 wave more or less to correspond to the envelope of the human 20 ear. 21 So it's kind of identifiable as a speech we recognize 22 and in some cases we might accentuate the middle low highs 23 because that is where a lot of the intelligibility of speech is 24 found, the roughly 1200 to 2500 Hertz. That is where a lot of 25 the intelligibility of human speech is. So it simply shapes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4044 47KSSAT2 Herold - direct 1 the signal and conditions it, if you will, so on the output it 2 sounds pleasing and it sounds intelligible. 3 Q. And is the reason for doing that that certain types of 4 sounds -- and I don't know whether the right word would be 5 pitch -- or certain sounds are more difficult for the human ear 6 to hear? 7 A. Well, no, it's actually -- the microphone has its own -- it 8 doesn't hear things the way the human ear hears it and so you 9 are just trying to shape the signal so that it corresponds to 10 pretty much what the human ear hears. The human ear doesn't 11 hear the real lows real well and it doesn't hear the highs real 12 well either. It kind of hears in between and it's roughly a 13 bell-shaped curve, so the output of this equalizer is trying to 14 emulate what the human ear would hear and make it sound natural 15 and intelligible. 16 Q. How commonly used are these three steps of processing of 17 audio to improve intelligibility? 18 A. Well, in my case, and I assume the case of many of my 19 colleagues, it's standard. It's the way to attack noise and 20 improve intelligibility. 21 Q. And, in your opinion, and based on your experience, do 22 these three steps of processing that you applied to these 23 recordings make the conversations more audible without changing 24 the front end as far as the words that were actually spoken in 25 the conversation? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4045 47KSSAT2 Herold - direct 1 A. Yes, I think it improved the intelligibility. Bear in mind 2 that the original recording was intelligible. It was good 3 quality. So changes were not significant. There were enough I 4 think that you can pick up some words that may have been harder 5 to understand before, so therefore it improves the 6 intelligibility. 7 Q. Now, you testified earlier when I asked you about the 8 format of the audio on the original tapes that it is in stereo 9 format? 10 A. That is right. 11 Q. What does that mean about how many tracks there are of 12 audio in the original recording? 13 A. Well, in this case stereo means you have two mics. and if 14 we have the left and a right channel, if you will, and so those 15 two channels are processed separately. 16 Q. So when you carried out the three steps of processing that 17 you just finished describing, did you have to process the left 18 and right audio each separately? 19 A. Yes, they are processed separately. 20 Q. Now, in what form did you save the audio that resulted from 21 the processing that you just described? 22 A. The output of play of the video that was played back and 23 simultaneously the output of the audio played back from the 24 original tapes was recorded in a digital format. It's called a 25 D3 digital recorder. And that was used to archive all of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4046 47KSSAT2 Herold - direct 1 enhanced and processed audio and video from the original tapes. 2 Q. Why did you use the D3 format to save the recordings after 3 you had processed the audio? 4 A. The D3 format is an extremely high quality professional 5 recording format, in addition to which it supplies us with 6 timing display. I can actually put a time clock on the video 7 and just put it right out there and insert it and it's accurate 8 down to a sixteenth of a second. So when our translator, 9 Nabila Banout, did the translation, she used one of the D3 10 copies and she noted the time display where she wanted to take 11 edits out of the audio and this enabled us to do very accurate 12 editing on the redaction process. 13 Q. Is it feasible for D3 recordings to be used here in court? 14 A. No. 15 Q. Why not? 16 A. The equipment is bulky. It's extremely expensive and the 17 tapes are very expensive and bulky. 18 Q. About how much does a D3 tape costs? 19 A. The D3 tape itself runs anywhere between 180 and $250 per 20 tape. 21 Q. And what about the equipment? 22 A. The equipment runs 60 to $70,000. 23 Q. Is the D3 recording a digital format? 24 A. Yes. 25 Q. What, if any, advantages are there to using a digital form SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4047 47KSSAT2 Herold - direct 1 of recording in this type of situation? 2 A. When you record digitally, and again we are talking about 3 analogue tapes being archived digitally, digital recordings 4 don't add any noise at all. They only faithfully record 5 whatever it sees. So there is no additional layer of noise 6 when you play back a digital recording. Noise is not there. 7 So I can actually -- if you can imagine you take a VHS tape and 8 you made a copy of the VHS tape and you made a copy of a copy, 9 and you made a copy of that copy, and a copy of that copy, by 10 the time you got the 4 or 5 copies the VHS looks awful. You 11 have probably seen them. It's smeared and there is no 12 definition. It's awful. Not with digital. Digital you can 13 make 50, 200 copies and the 200th copy looks like the first one 14 because in a digital process you don't add noise. There is no 15 noise. There is no significant detectable layer of noise 16 added. 17 Q. Just so we are clear, digital and analogue are two 18 different forms of recordings? 19 A. Yes. 20 Q. I believe you testified earlier in response to Mr. Tigar's 21 question these original tapes marked as Government Exhibits 22 1700 through 1725 are analogue recordings? 23 A. Yes, they are. 24 Q. And in your last answer you were contrasting digital to VHS 25 video cassettes? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4048 47KSSAT2 Herold - direct 1 A. That is right. 2 Q. Are VHS video cassettes also analogue recordings? 3 A. They are analogue as well. 4 Q. So once you had the recordings which included the processed 5 audio saved in D3 format, did you make copies of them to 6 another medium? 7 A. Yes. Once we had archived the enhanced signals from the 8 original tapes, the playback of the D3 archived copy, and made 9 the copies from there. 10 Q. And did you copy them to some type of disk? 11 A. Initially we copied them to VHS tapes and then as the time 12 line of the case progressed we got into the ability to record 13 on DVD, digital disks, and so we made the copies then on DVD 14 disks. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4049 47KLSAT3 Herold - direct 1 BY MS. BAKER: 2 Q. More specifically, what types of or what type of DVD did 3 you copy the recordings to? 4 A. Well, there are basically four types of DVD: There's 5 DVD minus R (DVD-R), DVD plus R (DVD+R), DVD minus RW (DVD-RW), 6 and a DVD plus RW (DVD+RW). We use a DVD-R for recordings. 7 The difference between a -R and a -RW is the RW is 8 rerecordable. It has a different surface. You can actually 9 record up to 2000 times over again on an RW. The problem is 10 the quality isn't quite as dependable, and some players have 11 difficulty playing this particular format back. So we use the 12 -R, and the -R's record once only. You can only record it 13 once. Once you start recording, you can't go back and change 14 it. One-time recording. 15 Q. So can a recording and a DVD R be altered after it's made? 16 A. Not without obvious penalties for it. You disrupt the 17 signal. 18 Q. And in what format did you copy the recordings onto 19 DVD R's? 20 THE COURT: I'm sorry, did you say onto DVD R or 21 DVD-R? 22 THE WITNESS: It's DVD-R. 23 Q. Thank you. In what format did you copy the DVD-R disks? 24 A. Again, these are -R, and they're either in one of two 25 speeds. -R can be recorded, as recorders stand now, in a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4050 47KLSAT3 Herold - direct 1 one-hour mode -- actually, about an hour and two minutes. 2 That's called V-1. The second mode is two hours, and it's 3 called V-2. It's about two hours and three minutes recording 4 time. 5 Q. I'm sorry, the letter you're saying there is "V" like 6 video? 7 A. Yeah, "V" as in Victor -- video, yes. 8 Q. And which -- or did you use both the V-1 and the V-2 9 formats here? 10 A. Some of these recordings were less than an hour long. And 11 in those cases I used the V-1 format, and the recordings that 12 were two hours or more than one hour, I used the V-2. 13 Q. In your opinion, and based on your experience in this 14 field, how does the quality of a V-1 or V-2 recording on a 15 DVD-R disk compare with the quality of the same recording on a 16 VHS tape? 17 A. There's hardly any comparison. The quality of the VHS is 18 significantly degraded, even the highest quality, compared to 19 what the DVD provides you. DVD quality is studio quality, 20 video quality. 21 MS. BAKER: Your Honor, may I approach the witness? 22 THE COURT: Yes. 23 MS. BAKER: Before I do that, let me state these for 24 the record. 25 BY MS. BAKER: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4051 47KLSAT3 Herold - direct 1 Q. Mr. Herold, I'm going to hand you a set of disks that are 2 marked as follows: Government Exhibit 1700C, 1701C, 1702C, 3 1704C, 1705C, 1706C, 1707C, 1710C, 1711C, 1712C, 1713C, 1714C, 4 1716C, 1717C, 1720C, 1721C and 1722C. 5 Do you recognize those disks? 6 A. Yes, I do. 7 Q. What are they? 8 A. These are unredacted DVD copies taken from the unredacted 9 D3 archive copies of the respective "Q"s. 10 Q. I'm sorry, let me ask you to repeat that answer. You said 11 these are unredacted copies made from -- 12 A. The D3 unredacted enhanced signals from the archive copies. 13 Q. So in other words, with respect to the testimony that you 14 finished giving about the processing, these disks were made 15 from the D3 recordings that were after the processing that 16 you've described earlier? 17 A. Right. These were made, direct copies, from the archive D3 18 tapes, which was a product of enhancing the audiovisual signals 19 from the original. 20 Q. And is each of those disks a DVD-R disk as you were 21 describing a few minutes ago? 22 A. Yes, it is. 23 Q. How were you able to recognize each of those disks as a 24 recording that you made? 25 A. My handwriting, it has my number, it has initials, and it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4052 47KLSAT3 Herold - direct 1 has nomenclature identifying what it is. 2 Q. Does each of those disks bear a "Q" number? 3 A. Yes. 4 Q. Does the "Q" number on each of those disks correspond to 5 the "Q" number on the corresponding original tape? 6 A. Yes, it does. 7 Q. So for example, if a disk bears Q-11, it's a processed, 8 audio-copied recording of the tape that's also marked as Q-11? 9 A. That's right. 10 Q. Let me ask you specifically about six of the original tapes 11 that you received, the tapes that were marked as Government 12 Exhibits 1700 through 1705. What, if any, video or picture do 13 those tapes contain? 14 A. Without looking at them, I assume these are the tapes that 15 had no video picture, associated with the covering. 16 Q. Is there -- you say without looking, you would assume. Is 17 there paperwork that you've prepared that would allow you to 18 confirm what, if any, audio is on those particular tapes? 19 A. Yes. Q-1 through Q-10 and Q-11 through Q-30, I believe, 20 all have video signals. Q-11, 12, 13 and 31, 32, 33, all are 21 lacking in a video signal. 22 Q. Okay. So you just identified six recordings by the "Q" 23 numbers that are on them? 24 A. Yes, I'm not familiar with the Court numbers. 25 Q. Let me ask you to look please -- your Honor, may I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4053 47KLSAT3 Herold - direct 1 approach? 2 THE COURT: Yes. 3 Q. I'm going to return to you 1700, which I had borrowed. 4 Let me ask you to look at 1700 through 1705 and see 5 whether those are marked with the "Q" numbers, Q-11 and 31, 32 6 and 33. 7 A. Yes. 8 Q. So 1700 through 1705, as far as the government exhibit 9 numbers, are the tapes that you were saying a minute ago had 10 something different about the video? 11 A. Yes. 12 Q. What was in the video component of those six tapes? 13 A. To my understanding, was -- was not granted because it 14 sought specifically to provide video imaging of the meetings 15 and thereby the lens cap was kept placed over the camcorder so 16 that no video could record. The resultant video was a black 17 or -- a black screen. 18 Q. When you were copying those particular six recordings, 19 what, if any, change did you make to the video portion? 20 A. Well, in place of the black screen, I put in color bars, 21 standard color bars used in the industry. Normally they're 22 used to set up the hue and saturation of color when you're 23 playing the tape. You see the tape that has those color bars 24 in front of it. If you set up the colors to get the proper 25 color bar balance, then you know the colors in the tape, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4054 47KLSAT3 Herold - direct 1 ensuing tape, should be the proper balance as well. 2 In this case, I simply put the color bars in as a 3 means of having a display rather than a black screen, in 4 addition to which, and primarily, it provided a video timing 5 source for a D3 recorder. The professional recorders, the D3 6 types of recorders, are very sensitive to the quality of the 7 timing signals with respect to the video that's input at the 8 time. And if you don't have proper timing signals, you can 9 have problems making the recording itself, so this ensured that 10 all the timing signals were good. 11 Q. As far as the other 20 original tapes that you received and 12 examined, did those other 20 tapes have video that actually 13 depicted something? 14 A. Yes, it did. 15 Q. And I believe you alluded to this earlier, but just 16 generally, what was the type of picture that was on them? 17 A. Again, basically an overhead view of people around a table 18 talking. 19 Q. Did you add anything to each copy of the recording that you 20 made at the beginning of the recording? 21 A. Yes. I added a preamble, and in addition, I stick -- on 22 the color bars, right over the top of them, I stick a black box 23 that has the nine-digit lab number, plus the "Q" number, and 24 that's added to the front of the tape for two reasons: One, if 25 the tape is colored, you have a source of color to adjust your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4055 47KLSAT3 Herold - direct 1 viewing and saturation. And in addition to that, sometimes 2 because the beginning of the tape is exposed physically to the 3 outside world because it's not wound around the rest of the 4 spool, it can become damaged in some way, so you give it a 5 measure of safety, preamble ahead of it, so if some damage 6 occurs, it occurs to the preamble, the color bar, and not to 7 the tape itself, or the signal. 8 Q. What's the duration or the length of tape that you 9 essentially added by doing that? 10 A. Normally, the rule of thumb is 30 seconds of color bars. 11 This was followed to some degree with these tapes because, bear 12 in mind, these tapes were black and white. So you don't have 13 to worry about adjusting the colors. So the times may have 14 been less than 30 seconds. May have been 20 seconds. It 15 varied somewhat. Either 30 seconds or less. 16 Q. And including that at the beginning of each tape, were you 17 replacing any other content or was that simply added on before 18 the other content of the recording began? 19 A. No, it was added on. In addition to that, make sure you 20 see the beginning of the tape, you don't miss anything. 21 Because you're going from a recording you've already made and 22 now you're playing back everything that was on the tape. So 23 it's simply added to the front of the tape as additional time 24 on top of the original tape. 25 Q. Now, the set of DVD R disks you have in front of you, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4056 47KLSAT3 Herold - direct 1 referred to those earlier by using the word unredacted. Does 2 that mean that the content of each of those recordings is the 3 entirety, completely the full length of what was on each of the 4 corresponding original tapes? 5 A. Yes. 6 Q. At a certain point or points, did you also make, edit or 7 what might be referred to as redacted copies of certain of the 8 recordings? 9 A. Yes, I did. 10 Q. Mr. Herold, I'm going to hand you another set of disks 11 which are marked for identification as Government Exhibits 12 1700D, 1701D, 1702D, 1706D, 1707D, 1710D, 1711D, 1712D, 1716D, 13 1717D, 1721D, and 1722D. 14 Do you recognize those disks? 15 A. Yes, I do. 16 Q. What are those? 17 A. These are disks that were made by playing back the archive 18 D3, respective D3 tape with the redactions having been placed 19 on the page. 20 Q. You just indicated in your answer that these were made from 21 the D3 recordings? 22 A. Yes, I did. 23 Q. So do these also have the processed audio portion that was 24 subjected to the processing that you described earlier? 25 A. Yes. These redacted tapes have the same processed enhanced SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4057 47KLSAT3 Herold - direct 1 stereo audio signal, except in those areas where the powers 2 that be decided that they wanted these areas redacted out. And 3 normally in those areas where there would be no conversations 4 because they were taken out, there would be silence. But 5 silence can be distracting if you're listening to a 6 conversation and suddenly it's silent, so when we redact 7 conversations, we always insert a tone, a low amplitude tone so 8 that you could tell that in fact this wasn't dead air. It's 9 like TV: If they bleep something out, they bleep it out. You 10 don't hear just nothing, they have a tone over it. We had a 11 2000 hertz tone placed. Instead of the audio that was taken 12 out, you now have a 2000 hertz tone in its place. 13 Q. As a result of using that you just described and replacing 14 it with a tone, is the duration of the redacted copy of the 15 recording the same as the duration of the original recording 16 and the unredacted copy recording? 17 A. The times were identical, the same. 18 Q. And where there were portions where you replaced the 19 original audio with a tone, was the video left intact during 20 those portions of the recording? 21 A. If there was video, yes, it was left intact. 22 Q. And for those other recordings where there was just a black 23 video originally, it just continuously occurs as color bars 24 even in the redacted version? 25 A. With color bars, that's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4058 47KLSAT3 Herold - direct 1 Q. Now, were you personally deciding which parts to redact out 2 and which parts to leave in? 3 A. No. 4 Q. Were you following instructions that you understood were 5 for legal reasons? 6 A. Yes. Our translator, Nabila Banout, was the one that 7 received instructions as to what parts in the transcript were 8 to be redacted. And then she transferred those redacted places 9 to times, times corresponding to the times on the D3 processed 10 copies, so that once she had redacted this from such-and-such a 11 time to this at this time, I would take that time, go back on 12 the D3 and edit out those times that she indicated with the 13 tone. 14 Q. And was she making the determinations or was she 15 implementing determinations made by someone else? 16 A. She was implementing what was made by -- decisions by other 17 people. 18 Q. You refer to Miss Banout as a translator. Was her 19 assistance needed in this process because of the fact that the 20 recordings included portions in another language? 21 A. Yes. She -- some of these were other than English, and she 22 was the one that had to determine how this applied to the 23 transfers because she was the only one that could tell what was 24 being said. 25 Q. So she basically indicated the points in time in recording SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4059 47KLSAT3 Herold - direct 1 at which you should start replacing audio with tone and then 2 stop replacing audio with tone, and then you implemented that? 3 A. Yes. 4 Q. Let me ask you to refer specifically to a few of that 5 second stack of disks that I just handed to you. Actually, 6 before I do that, I don't recall if I asked you, that second 7 stack of disks, the ones that are marked with the government 8 exhibit numbers and the letter "D", are each of those disks 9 also a DVD-R disk? 10 A. Yes, they are. 11 Q. And how are you able to recognize each of those disks as a 12 recording that you've prepared? 13 A. Again, it has my writing, has my lab number, has the 14 description of the disk and my initials on it. 15 Q. Does each of those disks bear at least one "Q" number? 16 A. Yes. 17 Q. Any "Q" number that appears on any one of those disks, the 18 disks that have the government exhibit number with the letter 19 "D", do the "Q" numbers on those disks correspond to the 20 same "Q" number on the matching original tape? 21 A. Yes. 22 Q. And do the "Q" numbers on those "D" disks also match 23 the "Q" numbers on the corresponding unredacted DVD-R's, the 24 ones that have the government exhibit numbers with the letter 25 "C"? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4060 47KLSAT3 Herold - direct 1 A. Yes. 2 Q. If you would, please look specifically at the disk marked 3 as Government Exhibit 1701D and also 1702D. 4 A. Okay. 5 Q. Does each of those disks bear two "Q" numbers? 6 A. Yes. 7 Q. Could you explain why that is? 8 A. This is a case where a conversation was recorded, when one 9 recorder ran out, and the recording which was continuing on 10 with the second recording which started later included parts of 11 the conversation that would have been missing on the first 12 tape, so they would have been added together. 13 Q. So as far as what appears on the disks marked as 1701D and 14 1702D, is it the entirety of one "Q" number, and then just the 15 portion of the second "Q" number that was unique? 16 A. That's right. 17 Q. If you would also please look at the disks marked as 18 Government Exhibits 1710D and 1711D. Again, do each of those 19 disks bear two "Q" numbers? 20 A. Yes, they do. 21 Q. Is that for the same reason? 22 A. Yes. 23 Q. Finally, if you would look at the disk marked as government 24 Exhibit 1717D. Does that disk also bear two "Q" numbers? 25 A. Yes, it does. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4061 47KLSAT3 Herold - direct 1 Q. And is that an instance where it was just -- one recording 2 wasn't very long, so you put another recording on the same disk 3 with it? 4 A. The two were combined at the request of the -- again, of 5 the field. 6 MS. BAKER: Your Honor, may I have a moment to confer? 7 THE COURT: Yes. This is a convenient time for me to 8 take a mid morning break. We began a little later, so we'll 9 take 10 minutes. 10 Ladies and gentlemen, please remember my continuing 11 instructions not to talk about the case; keep an open mind. 12 All rise, please. Follow Mr. Fletcher to the jury 13 room. 14 (Jury exits the courtroom) 15 THE COURT: See you shortly. 16 (Recess) 17 (In open court; jury not present) 18 THE COURT: All right. Please be seated, all. Are 19 you ready? 20 MS. BAKER: Yes. 21 THE COURT: Let's bring in the jury. 22 (Jury enters courtroom) 23 (In open court) 24 MR. TIGAR: Miss Shellow-Lavine needs to leave 25 temporarily, but we're prepared to start, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4062 47KLSAT3 Herold - direct 1 THE COURT: Okay. Mr. Herold is on the stand. 2 Mr. Fletcher? 3 DEPUTY CLERK: Mr. Herold, I would remind you you are 4 still under oath. 5 THE WITNESS: Yes. 6 THE COURT: All right. Ms. Baker? 7 MS. BAKER: Thank you, your Honor. 8 BY MS. BAKER: 9 Q. Mr. Herold, just to make sure that this is clear, let me go 10 back to something that we touched upon earlier: The original 11 high eight tapes which are marked as Government Exhibits 1700 12 through 1725, are the recordings on those tapes analogue 13 recordings? 14 A. Yes, they are. 15 Q. And the intermediate form of the recording that you had as 16 a result of processing of the audio, the format that you 17 referred to earlier as D3, is that -- well first of all, is D3 18 the name of the format of the recording or the medium on which 19 it's saved or both? 20 A. Well, both. D3 is a type of digital recorder, professional 21 digital recorder, manufactured by Panasonic. And for what it's 22 worth, the information, the audio information on it, is 23 uncompressed. It's simply digital information that's recorded 24 digitally on four tracks of audio, a track of time display -- 25 date/time display, and a track of video. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4063 47KLSAT3 Herold - direct 1 Q. And so that's a digital recording that uses that particular 2 kind of tape that's compatible with that equipment? 3 A. That's right. 4 Q. And then the recordings on the various DVD-R disks that are 5 in front of you there, are those all digital recordings? 6 A. Yes, they are. 7 Q. When you did the redacted of some of the recordings to make 8 what are now the disks marked with the government exhibit 9 numbers and the letter D, were you making the redactions to the 10 D3 recordings? 11 A. No. I was taking the D3 -- Nabila, our translator, was 12 taking the D3 information or the time display and determining 13 from what time to what time these sections should be redacted. 14 And then I took that information she supplied me and I did the 15 actual redaction of the tone. 16 Q. Right, but in doing that, when you were replacing some of 17 the original audio with the tone, were you making that 18 replacement in that one D3 recording that you had resulting 19 from the processing of each tape? 20 A. Yes, I was. 21 Q. So at this point, for any recording where you did 22 redactions, do you still have an unredacted, completely intact 23 D3 recording? 24 A. No. 25 Q. Because you made the redactions into the one existing D3 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4064 47KLSAT3 Herold - direct 1 recording that you had? 2 A. That's right. 3 Q. If the redactions needed to be altered in a way that 4 required audio content that had been redacted out to be put 5 back in, and a new copy of the recording made, what would you 6 have to do to accomplish that? 7 A. We'd have to start over again. Make a processed video, 8 enhanced audio copy on a D3, and supply again time display with 9 that so that the translator could go ahead and now take out new 10 sections or add whatever the changes were. Have to start over 11 again. 12 Q. Can you estimate, based on the work that you and 13 Ms. Banout, the translator, did the first time around with 14 these recordings, how long it takes to go through the 15 processing of the audio and then redacting of any one original 16 tape? 17 A. It would vary, depending on how much redaction was done. 18 Generally would go anywheres from a couple of days to a week 19 per recording. 20 MS. BAKER: Your Honor, may I have another minute? 21 THE COURT: Sure. 22 (Off the record) 23 MS. BAKER: Your Honor, at this time the government 24 offers into evidence the DVD-R disks that are marked as 25 Government Exhibits 1700D, 1701D, 1702D, 1706D, 1707D, 1710D, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4065 47KLSAT3 Herold - direct 1 1711D, 1712D, 1716D, 1717D, 1721D, and 1722D. And I have no 2 further questions for Mr. Herold. 3 MR. TIGAR: We respectfully request the Court reserve 4 on the offering. 5 THE COURT: All right. I'll reserve at this time. 6 MR. TIGAR: And may I inquire? 7 THE COURT: Yes. 8 MR. TIGAR: Thank you, your Honor. 9 CROSS EXAMINATION 10 BY MR. TIGAR: 11 Q. You work at Quantico, Sir? 12 A. Yes. 13 Q. Most of the time? And that's been your duty station while 14 you were in the Bureau and while you were a contractor? 15 A. For the last part of my bureau career, that was my station. 16 And then we've -- we've had several different offices before we 17 moved into our facility at Quantico. And now, just in the last 18 year, last few months, we've moved to a temporary site just 19 outside the Quantico base while we're waiting for a new 20 building which is being built next to our old building to move 21 back in. But yes. 22 Q. But it's the same neighborhood, same stop off by the 23 highway? 24 A. Yes. 25 Q. Yes. Grub's Restaurant. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4066 47KLSAT3 Herold - cross 1 How many original audiotapes -- excuse me. How many 2 high eight tapes did you process in connection with this 3 investigation? 4 A. Roughly 13 out of the 26. 5 Q. And when you first got them, they were these analogue tapes 6 similar to what a person would record on a home video recorder, 7 but not VHS tape. It was a cassette, right? 8 A. A high quality home recording, yes. 9 Q. And it was very high quality, correct? 10 A. Yes. 11 Q. That is, even if you had done nothing to it, just 12 unenhanced, as it sits there, a person could pretty well figure 13 out what was on there, right? 14 A. That's true. 15 Q. Now, some people have, at home, settings on their amplifier 16 through which they play sounds. And using the -- twirling the 17 knobs and pushing the buttons on a sophisticated home high-fi 18 system, you can approximate some of the things you did with 19 your enhancement, correct? 20 A. Some of it, yes. 21 Q. So the first thing you did was to run these through three 22 processes, correct, that's what you told us? 23 A. That's right. 24 Q. And the resulting recording was the D3? 25 A. Well, the signal -- the resulting signal was placed on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4067 47KLSAT3 Herold - cross 1 D3, yes. 2 Q. So you did not record analogue to analogue, correct? 3 A. Correct. 4 Q. Because, as you told us, recording analogue to analogue 5 always results in some distortion? 6 A. You add noise, yes. And time errors. 7 Q. You could get tape hiss? 8 A. Yes, that's one of the problems, yes. 9 Q. If the record head on the second analogue machine is dirty, 10 that can cause some problems? 11 A. Doesn't even have to be dirty. You simply add -- basically 12 molecular noise is hiss. It's thermal noise. 13 Q. And the processing, the first thing you did, you call it a 14 gain brain. Is that like a limiter? 15 A. Yes, it's a volume limiter, yes. It's kind of like a 16 little computer that limits the volume so that it doesn't max 17 out and give you clipping or distortion. 18 Q. Now, if you were looking at the unenhanced tape, going by 19 and used a VU meter before the limiter, you'd see that VU 20 needle going in a much bigger arc than you would after you'd 21 run the limiter on, correct? 22 A. Probably not significantly, no. Because a meter's not a 23 good -- it's really not a good gauge. The needle itself has 24 mass and it overshoots, so it's hard to say, but basically, 25 yeah, that's probably true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4068 47KLSAT3 Herold - cross 1 Q. Then the next thing you did, you talked about the 2 noise-cancelling feature. 3 A. Yes. 4 Q. Now, is that something similar to what some people have as 5 noise-cancelling headphones? 6 A. Yes, to some degree, yes. Some element of that in there, 7 that's true. 8 Q. Because sound, as you said, is a wave form, correct, sine 9 wave? And it's cancelling out the wave? 10 A. Yes. 11 Q. Now, when you got to the D3, now you're in digital, 12 correct? 13 A. That's correct. 14 Q. And does that mean that that digital file can be handled 15 differently than an analogue file in terms of redacting, 16 editing, adding and so on? 17 A. No. The only reason it's in D3, other than the fact the 18 quality's very good, it's a professional quality, it's made for 19 editing. 20 Q. Made for what? 21 A. Editing. Editing both video and audio. 22 Q. So the digital file can be edited by putting something at 23 the beginning, correct? 24 A. The color bars. That would be adding on, yes. 25 Q. So you can add on more easily than you could if you were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4069 47KLSAT3 Herold - cross 1 trying to add something onto an analogue file? 2 A. No, it's no easier. It's just better. 3 Q. If you were going to add the color bars to the beginning of 4 an analogue file and they had been on another analogue file, 5 you'd have to create a second-generation analogue tape and 6 you'd have to splice, correct? 7 A. Well, yeah. You're talking about a signal that results in 8 a copy of the original, regardless of what format, whether it's 9 analogue or digital. 10 Q. You don't have to do any cutting or physical splicing to 11 add the color bars to the beginning of the digital file, 12 correct? 13 A. No. Nor the analogue. 14 Q. And if we wanted to make sure -- I'm now going to ask you 15 about this redaction process. You put a time signal at some 16 point on this file, correct? 17 A. When the D3 archive recording was made, it has a time 18 display track recording at the time the recording's made, and 19 you can access this track or not, depending on what you want to 20 do. 21 Q. You chose to access the track? 22 A. In the case of the redactions, yes, we accessed the track 23 so we could make an accurate redaction. 24 Q. When you brought up that D3 file on the video screen, do 25 you see a timestamp on it there? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4070 47KLSAT3 Herold - cross 1 A. On these? No. 2 Q. When you play it? 3 A. No. 4 Q. Could you rig it or could you do it, rather, so that you 5 could see the time signal? 6 A. Yes, I could have made recordings that had the time signal 7 on it as well. 8 Q. But you can take your digital file and make sure that that 9 time sequence hasn't been tampered with, correct? 10 A. You can't be tampered with. Once it's recorded, it can't 11 be tampered with. 12 Q. When you say can't be tampered with, you mean if somebody 13 tried to alter that digital file by taking something out, you'd 14 know, wouldn't you? 15 A. Yes. 16 Q. And how would you know that? 17 A. Because. 18 Q. How would you be able to tell? I mean, if some person who 19 wanted to change this for an improper purpose, hypothetically, 20 were to go in there and change that digital file, how would you 21 be able to detect that somebody had been in there? 22 A. Because you'd disrupt both the audio and the video signal 23 in doing that. 24 Q. Would you also disrupt the timestamp? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4071 47KLSAT3 Herold - cross 1 Q. Would there be a piece of the time signal missing? 2 A. Yes. 3 Q. So you have -- the time signal is a kind of audit trailer, 4 correct? 5 A. It's simply a way of providing a pulse that corresponds to 6 the recording. The pulse -- the time code is actually in the 7 form of a series of pulses. And they're read out as time 8 display. And they're unalterable. I mean, you can alter them, 9 but if you do, that messes everything up. You'd know it. 10 Q. You would know it as an experienced agent if somebody tried 11 to do something wrong with that, right? 12 A. Right. 13 Q. And what you've brought to us here today are things that 14 you're able to say are exactly what you claim them to be, 15 correct? 16 A. Yes. 17 Q. Because you have used the procedures that are designed to 18 ensure accuracy at every step of the way, correct? 19 A. That's correct. 20 Q. Now, at one point you talk about an archive. Do you 21 remember that? 22 A. Right. 23 Q. You archive in a D3 format, correct? 24 A. Correct. 25 Q. Now, did you choose the D3 format for archiving? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4072 47KLSAT3 Herold - cross 1 A. Yes. 2 Q. Why did you choose that? 3 A. Because it's a very high quality, dependable format. 4 Q. High quality? What do you mean? 5 A. I mean, it very accurately reproduces the audio and the 6 video signal as received on the original recording. 7 Q. And what do you mean by dependable? 8 A. Well, I can even take a D3 tape and I can crinkle the tape. 9 And I can play it back and you won't see any effect of the 10 crinkling, because that's the nature of the way the D3 is 11 designed. 12 Q. So even if the tape had been degraded by crinkling, you can 13 still get the signal out? 14 A. Yes. 15 Q. When you archive, do you use a compression program? 16 A. No. 17 Q. Why not? 18 A. Because the D3 is uncompressed. 19 Q. Okay. So you prefer to do your archiving by not 20 compressing the original, correct? 21 A. That's correct. 22 Q. And you're the one that made that choice for your 23 laboratory? 24 A. That's right. 25 Q. Do you know a man named Michael Elliott? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4073 47KLSAT3 Herold - cross 1 A. Mike Elliott? 2 Q. Yes. 3 A. Yes, name sounds familiar. 4 Q. Have you ever worked with him? 5 A. No. 6 Q. You didn't work with him on this case? 7 A. No. 8 Q. Now, you told us, Sir, that you made the DVDs, and you have 9 a C series of DVDs and a D series of DVDs, right? 10 A. Well, that's the Court nomenclature, but yes, C's and D's. 11 Q. I'm going to stick with the Court nomenclature if we could. 12 And if you need to check to make sure we're getting it right, 13 please do so. But for the court reporter, it's important that 14 I stick with the exhibit numbers. 15 A. Fine. 16 Q. Now, so the answer to my question is -- please take your 17 time to check -- you have a C series of DVDs there and a D 18 series? 19 A. Correct. 20 Q. And when did you make the C series -- or, did you make the 21 C series? 22 A. Yes, I made the C series. 23 Q. When did you make them? 24 A. I made them after I made the D series. 25 Q. And when did -- approximately -- did you make the D series SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4074 47KLSAT3 Herold - cross 1 over a period of time? 2 A. Yes. 3 Q. And that was based on what -- on communications with the 4 actual case agents who were communicating with you, correct? 5 A. And the receipt of the evidence when it came in, yes. 6 Q. So you received these things over a period of time? 7 A. Yes. 8 Q. When you made the D series, which is the first one you 9 made, those are the ones that contained the redactions, 10 correct? 11 A. Correct. No, the D series is unredacted. 12 Q. I'm sorry -- okay. 13 A. I'm sorry. Let me get this straight. I got this mixed up 14 here. The D series is redacted. The C series is unredacted. 15 My error. 16 Q. The D series is --? 17 A. The D series is redacted, so it was made after the C 18 series, which is unredacted. 19 Q. All right. 20 A. Okay. 21 Q. Take your time. Please. We're just trying to find this 22 out. 23 Now, how did you make the C series? I mean, 24 physically, you can help us here, what did you do? 25 A. Played back the -- I played back the original tape, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4075 47KLSAT3 Herold - cross 1 processed the signals -- 2 Q. You say played back the original tape. You played back the 3 original high eight cassette? 4 A. That's right. 5 Q. And you played it through what? 6 A. Through a high eight playback system. 7 Q. All right. 8 A. And the output signals from that system were processed and 9 recorded on the D3. 10 Q. Was it recorded on D3 in a digital or an analogue form? 11 A. It comes in as an analogue; and it's recorded as a digital 12 signal. There's an analogue-to-digital conversion that's done. 13 We live in an analogue world. We say analogue, we hear 14 analogue, and so digital is simply a way of transforming that 15 and working with that, and then it has to be transferred back 16 out to analogue in order for us to hear it and see it, because 17 we live in an analogue world. 18 Q. When you say we live in an analogue world, we hear sounds 19 in that way; is that correct? 20 A. We hear sounds and you see things in an analogue way, yes. 21 Q. And digital is just a conversion for a storage mechanism, 22 right? 23 A. It's a conversion for processing. You can do a lot of 24 manipulation of signals, improvement of signals, by converting 25 it to digital. And then once you have the processing done the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4076 47KLSAT3 Herold - cross 1 way it should be done, you reconvert it back out into analogue 2 so it can be seen and heard. 3 Q. But a digital system, if you have things in a digital 4 format, it's a lot easier to edit, add, subtract and work with 5 the material. Correct? 6 A. It's easier to process, yes. 7 Q. So when you had the signal that came out to get onto the 8 DVD, was the DVD in a computer? 9 A. It's in a DVD recorder. 10 Q. Okay. A DVD recorder. And does that DVD recorder have an 11 internal clock that puts on the DVD a timestamp that says on 12 the readout or the Windows directory as to when it was created? 13 A. No. All video recorders, whether they're analogue or 14 digital, have clocks. Because the timing of video is critical. 15 Video is -- depends very highly on proper timing. If the 16 timing is off, the picture disintegrates. The picture comes 17 apart, it tears and folds, things like that. 18 MR. TIGAR: May I approach, your Honor? 19 THE COURT: Yes. 20 Q. Could you find for me 1700C? Do you have it? 21 MS. BAKER: Your Honor, may I approach also to see 22 what Mr. Tigar is going to show the witness? 23 THE COURT: Yes. 24 BY MR. TIGAR: 25 Q. I'd like to put 1700C in this DVD drive, and then I want to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4077 47KLSAT3 Herold - cross 1 open Windows Explorer. I'm going to double-click on that icon 2 And then view the file details. And really, I just ask you to 3 read this column here. Does that have any significance at all? 4 Those dates? 5 Do you see the "date modified" column? 6 A. I see them. 7 Q. Does that have any significance at all? 8 A. It may or may not, depending on how the recording was made 9 to begin with. 10 Q. Did you make 1700C? 11 A. Yes. 12 Q. And is it your testimony you don't recall what, if any, 13 significance there is to that? 14 A. No, because the display on the DVD recorder has to be set 15 in order for the timing to be significant. 16 Q. Okay. And do you -- you don't recall as you sit there 17 whether you set it or -- 18 A. No. I don't really care. 19 MR. TIGAR: May I have just a moment, your Honor? 20 THE COURT: Yes. 21 (Off the record) 22 BY MR. TIGAR: 23 Q. So the record is clear, Sir, what I showed you was the -- 24 what one would see if one put 17C in the drive -- 25 THE COURT: Hold on, I think you misspoke as to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4078 47KLSAT3 Herold - cross 1 number. 1700. 2 Q. Excuse me. Thank you, your Honor. 3 I'm sorry, it's these acoustics again, Sir. 4 We put 1700C into the CD drive of this laptop, and 5 then, using Windows Explorer, we asked Windows Explorer to show 6 us the details of the files on there, correct? 7 A. Correct. 8 Q. And looking at Windows Explorer, we saw names, size, 9 height, date modified and location information on 1700C, 10 correct? 11 A. Currently, yes. 12 Q. And what I was asking you, I was asking you questions about 13 the dates under the date modified column, correct? 14 A. That's right. 15 MR. TIGAR: May I have just a moment, your Honor? 16 THE COURT: Sure. 17 (Off the record) 18 MR. TIGAR: I have no further questions at this time. 19 Thank you. 20 THE WITNESS: Yes. 21 THE COURT: All right. 22 MR. TIGAR: Your Honor, may I approach the witness to 23 return this exhibit to its exhibit case? 24 THE COURT: Sure. 25 MR. TIGAR: Handing the exhibit to the witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4079 47KLSAT3 Herold - cross 1 THE COURT: All right. Ms. Baker? 2 MS. BAKER: Your Honor, I have no further questions 3 for Mr. Herold. 4 THE COURT: All right. Mr. Herold, you're excused. 5 You may step down. 6 MS. BAKER: Your Honor, may I step out for a moment? 7 THE COURT: Sure. 8 MR. BARKOW: May I have just a second, your Honor? 9 (Ms. Baker exits the courtroom) 10 (Off the record) 11 THE COURT: Mr. Barkow? 12 MR. BARKOW: Your Honor, at this point we'd ask 13 permission to continue with the publication of some of the 14 Sattar search evidence. 15 THE COURT: All right. 16 MR. BARKOW: May I have just a moment? Mr. Tigar left 17 his something at the podium. 18 MR. TIGAR: It was a pen, your Honor. 19 THE COURT: Okay. 20 MR. BARKOW: At this point, the government offers into 21 evidence, if it has not been offered, a signed stipulation 22 between the parties. This relates to Sattar search evidence 23 found during the search of Mr. Sattar's residence. This is 24 Government Exhibit 2010S, and we ask permission to publish it 25 to the jury on the ELMO and read it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4080 47KLSAT3 1 THE COURT: All right. 2 MR. BARKOW: It has not yet been offered, your Honor. 3 THE COURT: Government Exhibit 2010S is received in 4 evidence, with no objection. 5 (Government's Exhibit 2010S received in evidence) 6 MR. BARKOW: May I publish it, your Honor? 7 THE COURT: Yes. 8 (At this point, Government Exhibit 2010S, in evidence, 9 was displayed and read to the jury). 10 MR. BARKOW: At this point, your Honor, could the 11 government ask permission to publish and read to the jury 12 Government Exhibit 2002, which has been admitted into evidence? 13 THE COURT: All right. 14 MR. BARKOW: This evidence is all, your Honor, from 15 the Sattar search. And Ms. Grant can publish the exhibit on 16 the screen. 17 THE COURT: And this has already been admitted into 18 evidence? 19 MR. BARKOW: Yes, your Honor. 20 THE COURT: Before you do that... 21 Ladies and gentlemen, I've already given you an 22 instruction on newspaper articles. Newspaper articles are not 23 admitted for the truth of what's said in the article but for 24 the effect on anyone who may read them, and I've given you a 25 longer instruction. I will certainly apply the instruction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4081 47KLSAT3 1 here. 2 (At this point, Government Exhibit 2002, in evidence, 3 was displayed and read to the jury) 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4082 47KSSAT4 1 MR. BARKOW: At this point, your Honor, the government 2 requests permission to publish and read to the jury what has 3 been admitted into evidence as Government Exhibit 2003. 4 THE COURT: All right. 5 By the way, the same instruction, ladies and 6 gentlemen, with respect to the newspaper articles, and I 7 haven't checked my list. I know that there are no objections 8 to 2002, 2003. I wasn't sure if they were already admitted in 9 evidence and so -- 10 MR. BARKOW: I thought I offered them in a series 11 yesterday. If not, at this point I would offer 2002 and 2003. 12 THE COURT: All right, 2002 and 2003 no objection, 13 received in evidence. 14 But again, ladies and gentlemen, I have given you 15 instructions with respect to newspaper articles. Newspaper 16 articles are not received for the truth of anything that is 17 contained in the article but, rather, for the effect on the 18 state of mind of a person who reads the newspaper article. 19 And I have also given you a longer instruction to 20 explain to you how it is that newspaper articles are not 21 received for the truth because newspaper articles reflect what 22 reporters are reporting and reporters could be mistaken. These 23 are out-of-court statements by reporters about what happened 24 and sometimes the newspaper articles themselves may include 25 statements by other people in the course of the newspaper SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4083 47KSSAT4 1 articles. So the newspaper articles are not received for the 2 truth of what is said in the articles, but if they are 3 received, then, for example, its for the effect on the person 4 who reads the article. 5 MR. RUHNKE: Your Honor, maybe I lost track as well. 6 Are these admissible against all defendants? 7 THE COURT: Why don't we use this as our time to take 8 our break. It's about time for our luncheon break. 9 We will break until 2 o'clock, ladies and gentlemen. 10 Please remember my continuing instructions not to talk 11 about the case. Keep an open mind. 12 All rise please. 13 (Jury left the courtroom) 14 (Government's Exhibits 2002 and 2003 received in 15 evidence) 16 THE COURT: Please be seated all. 17 MR. BARKOW: Your Honor, those exhibits were received 18 yesterday in the series that I offered. 19 MR. RUHNKE: If I am correct, these were articles 20 taken during the Sattar search. As I recall, they are 21 admissible only against Mr. Sattar, not for the truth of the 22 matters asserted but as they bear on Mr. Sattar's state of mind 23 and knowledge. 24 MR. BARKOW: That is correct, your Honor. 25 MR. RUHNKE: And could we ask the jury be instructed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4084 47KSSAT4 1 as to that? 2 THE COURT: Sure. 3 You are right. Yes, I see from the transcript they 4 are part of the list. 5 Okay, the only thing I ask is if there are any 6 limiting instructions for me to give that you remind me because 7 the other day when I had the list of exhibits, I noted -- 8 several days ago -- I noted for myself the instructions to be 9 given on the exhibits and the exhibits that were being 10 introduced in accordance with any limiting instructions, and 11 that was the group that included 2036, 2009 and 2009A, and then 12 there was the second group that began with 2045 and included a 13 series of exhibits going down through -- this isn't in order 14 but took me through 2046. 15 And if there are any limiting instructions with 16 respect to any other exhibits that are to be offered, I should 17 be told about that. 18 MR. BARKOW: I will do that, your Honor. I think that 19 the series that I was embarking upon all is offered only 20 against Mr. Sattar. I will confirm that over lunch and advise 21 the court when we get back. And some of them are newspaper 22 articles and so the newspaper instruction would be appropriate 23 for those. 24 I will survey them and tell the court before I 25 re-embark on that path. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4085 47KSSAT4 1 What we have at this point is a series of Sattar 2 search exhibits, as well as at some point Government Exhibit 3 508, which was dealt with this morning. We didn't start that 4 just now because it would have taken too long. 5 THE COURT: All right. And I have already explained 6 the instructions that I will give on 508. And you have another 7 stipulation with respect to 508 I take it. 8 MR. BARKOW: Yes, we do, your Honor. When we come 9 back from lunch, if that is okay, we can tell the court the 10 order in which we are going to go, because I have this set of 11 Sattar search exhibits and then we additionally have Exhibit 12 508 and so we can tell the court so the court knows what 13 instructions should accompany them. 14 THE COURT: Fine. 15 MR. TIGAR: Your Honor, at various times in the trial 16 we don't stand up and say "object" when exhibits come in 17 because your Honor has ruled outside the presence of the jury. 18 I hope it's clear that we have not waived our objections by our 19 tactical silence. 20 THE COURT: If you have objected and I have ruled on 21 that objection to the extent there was an objection and a 22 ruling, you have it. 23 MR. TIGAR: Thank you, your Honor. 24 THE COURT: Okay. So be back at a quarter of 2. I 25 will see you after lunch. (Luncheon recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4086 47KSSAT4 1 AFTERNOON SESSION 2 2 p.m. 3 (In open court; jury not present) 4 THE COURT: Please have a seat 5 MR. RUHNKE: Your Honor, I assume your Honor has seen 6 the letter that Mr. Schmidt telefaxed. 7 THE COURT: Yes. 8 MR. RUHNKE: Based on the letter Mr. Morvillo and I 9 just had a conversation that we view the government is now free 10 to start looking at their walled-off translations of the 11 redacted content. 12 I have also informed Mr. Morvillo that I hope by the 13 end of business tomorrow we will produce for the government in 14 CD form translations of the entire prison visits, the entire 15 Yousry notebooks, and probably 80 to 90 percent of the prison 16 telephone calls. We still have a few calls that have not been 17 fully translated. Mr. Morvillo agrees to accept them in draft 18 form with the same understandings that we have had, that it 19 will not be used to cross examine anyone until they are 20 designated as final transcripts. But we seem to be making 21 progress. 22 THE COURT: But we seem -- 23 MR. RUHNKE: To be making progress. 24 MR. MORVILLO: Your Honor, the only wrinkle to that 25 whole thing, Mr. Ruhnke may not even be aware of this, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4087 47KSSAT4 1 there was an order of the Foreign Intelligence Surveillance 2 Court that allowed the defendants to have access to the 3 minimized portions. That order I don't think applies to the 4 government and so I would like to check with the Office of 5 Intelligence Policy and review to make sure that that wouldn't 6 be in violation of the FISA court order, or perhaps we can come 7 back to your Honor and ask for an order allowing us to have 8 access to this information. But I will look into it this 9 afternoon and get back with our position to you tomorrow. 10 THE COURT: Should that order come from me or from the 11 FISA court? 12 MR. MORVILLO: That is the issue that we want to look 13 into at this point, your Honor. It may be that an order is not 14 even necessary but to the extent there is one, I want to figure 15 out which entity, which court, is the proper court to issue 16 that order. 17 THE COURT: Okay. 18 Mr. Schmidt's letter should be docketed, shouldn't it? 19 MR. RUHNKE: I agree, your Honor, it should be. 20 THE COURT: And there is no reason why it has to be 21 docketed under seal, is there? 22 MR. MORVILLO: I don't see any reason, your Honor. 23 MR. RUHNKE: I agree, your Honor, no reason. 24 THE COURT: Okay. 25 The 1700D series I reserved on and I will continue to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4088 47KSSAT4 1 reserve on those. There is one more tape or series of tapes 2 with respect to the July 13th prison visit for which there is a 3 witness tomorrow. The issues with respect to authenticity have 4 been argued and people can argue to me if they wish over the 5 authenticity of the 1700D series. But it seems to me I should 6 rule -- yes? 7 MR. TIGAR: Your Honor, we have no objection to the 8 authenticity of anything in the 1700 series. We withdraw any 9 such objection. 10 THE COURT: Okay. 11 MR. TIGAR: Now that I have heard the testimony of Mr. 12 Herold about what happened, it supplied any gaps to which I 13 would have referred in talking about the kinds of machines and 14 so on because he had all his information about signals going 15 and such. So it would be fruitless of us to pursue that and we 16 are not going to do it. 17 THE COURT: Let me just ask -- 18 MR. TIGAR: Mr. Morvillo wanted to ask me a question. 19 It might save the witness a trip. 20 Can we take a minute to do that? 21 THE COURT: Sure. 22 (Pause) 23 MR. TIGAR: We will take it up at the break, your 24 Honor. We may be able to reach some stipulation. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4089 47KSSAT4 1 So I will consider all of the 1700 series and any 2 arguments that are to be made after you have had an opportunity 3 to talk about them. 4 MR. TIGAR: There will be nonauthenticity type 5 objections and questions, your Honor, but from Ms. Stewart's 6 point of view we prefer to wait until Mr. Ruhnke and the 7 government have worked out their process and then interpose 8 those at the appropriate time. The only one that is relevant 9 to this entire process is we have had objected to the February 10 prison visits on hearsay grounds. And if we decide to maintain 11 that objection we will interpose it at the point when the 12 February evidence, the shape of it, becomes clear. 13 THE COURT: Okay. 14 MR. TIGAR: Excuse me, your Honor, Ms. Shellow-Lavine 15 reminds me, my withdrawal objection is to the authenticity of 16 things thus far marked for identification. I have not heard 17 yet any evidence about the prison calls. I was talking about 18 the prison visits, your Honor. If it turns out that the prison 19 calls are going to have 1700 exhibit numbers, I don't wish to 20 be understood as waiving that objection because I haven't heard 21 how they were recorded yet. 22 THE COURT: Right. I took that as relating to the 23 exhibits marked so far in the testimony with respect to those 24 exhibits. Okay. 25 MR. BARKOW: Your Honor, just before the break your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4090 47KSSAT4 1 Honor had raised the issue of which instructions accompanied 2 this set of Sattar search evidence and in the set that we are 3 going to seek to publish to the jury they are all offered 4 against Mr. Sattar only and to prove Counts 2 and 3 with one 5 exception, which is Government Exhibit -- 6 THE COURT: Hold on. When you say this set of 7 exhibits, this is the set that -- 8 MR. BARKOW: That I had started with. 9 THE COURT: On page 3812 of the transcript of 2002? 10 MR. BARKOW: No, your Honor. What I was talking about 11 just now were the exhibits that we would like to present to the 12 jury right now. With respect to the list of exhibits that I 13 offered into evidence yesterday this comprises some of them and 14 we are not seeking to publish all of them now. So I am only 15 speaking about the ones that we are seeking to publish now. 16 THE COURT: All right. 17 MR. BARKOW: And of the ones we are seeking to publish 18 now, they are all offered solely against against Mr. Sattar, 19 solely as to Counts 2 and 3, and solely to show his state of 20 mind, knowledge, and intent with one exception. 21 THE COURT: Hold on. 22 Yes. 23 MR. BARKOW: That one exception is Exhibit 2037. 24 THE COURT: You should give me the list. 25 MR. BARKOW: Okay. This is in the order in which we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4091 47KSSAT4 1 are going to seek to present them to the jury. We have already 2 done 2002. I started with 2003, 2052, 2068, 2067, 2037 -- that 3 is the one exception -- 2026, and then 2020 and 2020T. The one 4 exception is 2037, and that is offered against Mr. Sattar for 5 the purposes that I articulated, and also against Ms. Stewart. 6 It's a fax from Ms. Stewart to Mr. Sattar of one of the SAMs 7 and signed affirmations and it's offered against Ms. Stewart as 8 an admission. 9 THE COURT: Well, the instruction is that these 10 exhibits are offered solely against Mr. Sattar and solely with 11 respect to his knowledge, intent and state of mind except that 12 2037 is also offered against Ms. Stewart. 13 MR. TIGAR: Your Honor, I fail to see how all of 2037 14 could be offered against Ms. Stewart. Certainly anything that 15 she wrote or anything that she signed, but just because she 16 faxes something doesn't make that her statement. 17 MR. BARKOW: Your Honor, the first page of 2037 is the 18 signed affirmation. The rest of it is SAMs and the first page 19 of it is Ms. Stewart's statement. The rest of it is offered in 20 essence for its effect on her. She had it in her possession. 21 Each page has a fax line that has a telephone number and her 22 name, which indicates from where it was faxed. And so it's 23 offered to show that it came from her possession, it's effect 24 on her, her knowledge thereof, and the first page is the signed 25 affirmation which is her adopted statement. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4092 47KSSAT4 1 And I think this is already admitted in evidence under 2 a different exhibit number actually. I don't know it off the 3 top of my head, but this is just a copy that was faxed by Ms. 4 Stewart to Mr. Sattar. 5 THE COURT: Well, you could give me -- I don't have 6 the exhibit in front of me, but it sounds -- and certainly the 7 parties can correct me if I am wrong -- like that the first 8 page is offered against Ms. Stewart -- the first page is 9 offered against Mr. Sattar with respect to his knowledge, 10 intent, and state of mind. The first page is offered against 11 Ms. Stewart and the remaining pages are offered against Ms. 12 Stewart with respect to her knowledge, intent, and state of 13 mind. 14 MR. BARKOW: Well, your Honor, the -- 15 THE COURT: She is not the spokesperson for the 16 remaining pages. The first page is a statement by her, right? 17 MR. BARKOW: It's incorporated though actually on the 18 first page. It incorporates by reference the remainder 19 actually. I can pass this up. The court just said the court 20 didn't have a copy but the first paragraph, the third and 21 fourth lines, incorporates by reference actually the rest of 22 the document. 23 And this is also, as I said, admitted in another form 24 without objection I think. And so the whole document is 25 incorporated together when she signs the affirmation. She is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4093 47KSSAT4 1 signing something that incorporates by reference the rest of 2 the document. 3 MR. TIGAR: Your Honor, this is a SAM affirmation and 4 a duplicate original that is already in evidence. The 5 relevance, if any, is that Ms. Stewart sent it to Mr. Sattar. 6 So there is no 801 issue here that I see or if offered for that 7 it's simply duplicative of something that is already in 8 evidence. 9 We suggest that the relevance of it is as to Ms. 10 Stewart's state of mind, full stop. I don't see any other 11 thing. I don't see how in the world the alleged incorporation 12 of the SAMs should make Ms. Stewart the author of SAMs. 13 MR. BARKOW: Your Honor, it's our view that, one, when 14 Ms. Stewart sends it to Mr. Sattar she is effectively saying to 15 Mr. Sattar, just as she did when she said it to the government, 16 therefore again it's an admission by her regardless of to whom 17 she sent it. Secondly, it doesn't seem to make sense to put a 18 limiting instruction on this which, as Mr. Tigar says, is a 19 duplicate of something else that is admitted without a limiting 20 instruction. It's the same document. It was just sent to 21 Mr. Sattar. 22 THE COURT: That is true. There is no 801 objection. 23 It's already admitted. The objection is that it's a duplicate 24 but there is no 403 objection -- there is no reasonable 403 25 objection to something that is already in and has independent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4094 47KSSAT4 1 significance because Ms. Stewart sends it to Mr. Sattar. So 2 it's a duplicate of a document that is already admitted without 3 limitation and it's now being sent to Mr. Sattar, so it would 4 be offered against Mr. Sattar for his knowledge, intent and 5 state of mind, and also being offered against Ms. Stewart. 6 And all of the other exhibits are being offered solely 7 against Mr. Sattar and solely with respect to his knowledge, 8 intent and state of mind. 9 MR. BARKOW: That is correct, your Honor. And some -- 10 in fact, most are newspaper articles and so -- in fact, if I 11 can just have a moment I can check to see if it's actually all. 12 MR. TIGAR: Does the government propose to read this 13 to the jury? 2037. 14 MR. BARKOW: Your Honor -- 15 THE COURT: Hold on. It's a fair question. 16 Mr. Barkow, 2037, do you intend to read it to the 17 jury? 18 MR. BARKOW: No, your Honor, we would just publish it 19 by displaying for a few seconds each page, and the fax line we 20 would like to read since that is the only part that is 21 different. And I found Mr. Dember has advised me, Government 22 Exhibit 3 is the one that is the same as, so we would like to 23 read the fax line which is the only part that is different than 24 Government Exhibit 3. 25 THE COURT: All right. Is that satisfactory? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4095 47KSSAT4 1 MR. TIGAR: Yes, your Honor. It's certainly better 2 than reading it. 3 THE COURT: Okay. 4 MR. BARKOW: Your Honor, the exhibits, except for 2037 5 and except for 2026, are all newspaper articles. So 2026 is 6 not. 7 THE COURT: Okay. And I will give that instruction. 8 Even though I have already given it for 2002, I will give it 9 again because you are picking up with 2003. 10 MR. BARKOW: Yes, your Honor. 11 THE COURT: Okay. 12 Where are you going after 2020T? 13 MR. BARKOW: At that point, your Honor, we would turn 14 to 508. 15 THE COURT: All right. Okay. 16 By then we should be at a break, I take it, if not 17 beyond. 18 MR. BARKOW: Actually, your Honor, so the court is 19 aware, 508, when that is published -- if I may just have a 20 moment -- yes, 508 we would turn to next and then there is one 21 Sattar search exhibit, 2029, which relates to 508 and so on the 22 heels of presenting 508 and publishing it, we would then like 23 to together or after publishing 2029 and 2029T. That exhibit, 24 2029 and 2029T, is a newspaper article from the Sattar search 25 offered only against Mr. Sattar. But it is the reportage of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4096 47KSSAT4 1 508 effectively. It was one of the articles referred to in our 2 letter to the court. 3 THE COURT: It's a newspaper article also? 4 MR. BARKOW: Yes, your Honor. 5 THE COURT: Solely against Mr. Sattar? 6 MR. BARKOW: Yes. 7 THE COURT: And solely state of mind. 8 MR. BARKOW: Yes. 9 THE COURT: A newspaper article. 10 All right, let's bring in the jury. 11 MR. BARKOW: Your Honor, just to clarify something I 12 said, I said 2029 is a reportage of 508. It's actually a 13 reportage of the fatwah contained in 508. It's not an article 14 about the article. It's an article about the fatwah. 15 MR. MORVILLO: Your Honor, if I may run down to my 16 office to try to get in touch with Washington on this issue 17 that we discussed previously. 18 THE COURT: Fine. 19 (In open court; jury present) 20 THE COURT: Please be seated. 21 Good afternoon, ladies and gentlemen. 22 When we broke this morning, we had started to have 23 read a series of documents which began with Government Exhibit 24 2002 and then was continuing through 2003, and there are a 25 series of other exhibits, I understand, 2052, 2068, 2067, 2037, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4097 47KSSAT4 1 2026, 2020 and 2020T. 2 Let me give you a limiting instruction with respect to 3 all of these exhibits. 4 As you heard, the exhibits were items that were 5 obtained in the course of a search from Mr. Sattar's residence. 6 They are offered solely against Mr. Sattar, solely with respect 7 to his knowledge, intent and state of mind, except 2037, which 8 is also offered against Ms. Stewart. 9 With respect to all of the exhibits that are newspaper 10 articles, I have given you an instruction with respect to 11 newspaper articles before and I repeat it for you again, and 12 you are to apply that as you go through all of the exhibits. A 13 newspaper article, as I have explained to you, is not offered 14 for the truth because it's a statement by the reporter about 15 various things. The newspaper article is offered for the 16 effect on people or how it affects people, so it's offered, for 17 example, for their intent, state of mind when they see the 18 article. 19 The assertions in the newspaper article are those by 20 the reporter which may or may not be true and may include 21 statements by others which may or may not be true, and that is 22 why newspaper articles are received, if they are, not for the 23 truth of what is said in the article but, rather, for the 24 effect on people who see it. And if there are any other 25 instructions to be given with respect to newspaper articles SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4098 47KSSAT4 1 when they come in, I will give you additional instructions. 2 But with respect to this group of newspaper articles, that is 3 how they are to be taken by you. 4 All right. You may proceed. 5 MR. BARKOW: Thank you, your Honor. 6 Your Honor, if we may, may we publish to the jury 7 Government Exhibit 2003, which was admitted into evidence 8 yesterday? 9 THE COURT: Yes. 10 MR. BARKOW: First, your Honor, if I may, I would ask 11 Ms. Grant to focus on the headline and the header. 12 (At this point, Government Exhibit 2003 in evidence 13 was read to the jury by Mr. Barkow) 14 MR. BARKOW: If I may ask Ms. Grant to turn to the 15 next article. 16 (Reading continued) 17 MR. BARKOW: At this point the article stops and the 18 continuation is not part of the exhibit, so we now turn to the 19 right column. 20 THE COURT: All right. 21 (reading continued) 22 THE COURT: All right. 23 Before we turn to the next exhibit, this is a 24 convenient time for us to take a stretch break. 25 Please be seated all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4099 47KSSAT4 1 MR. BARKOW: Actually, your Honor, there is one more 2 page to the exhibit. 3 THE COURT: All right. 4 MR. BARKOW: This is still Exhibit 2003, your Honor. 5 (Reading continued) 6 MR. BARKOW: Actually, this is the same thing that is 7 on the first page. That is why it wasn't on the first copy I 8 had. This is exactly the same thing that I read. 9 THE COURT: All right. 10 MR. BARKOW: If we may, your Honor, we would like to 11 publish to the jury Government Exhibit 2052, which is in 12 evidence. 13 THE COURT: All right. 14 (At this point, Government Exhibit 2052 in evidence 15 was read to the jury by Mr. Barkow) 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4100 47KLSAT5 1 THE COURT: While you're turning the article over, 2 let's take another stretch break. 3 (Stretch break; continuation of reading and 4 displaying article) 5 MR. BARKOW: Your Honor, at this point we'd ask to 6 publish to the jury what's been admitted into evidence as 7 Government Exhibit 2068. We can do that on the ELMO as well, 8 actually. 9 THE COURT: All right. This is part of the series of 10 exhibits that I've given you limiting instructions for. 11 MR. BARKOW: May I continue, your Honor. 12 THE COURT: Go ahead. 13 (At this point, Government Exhibit 2068, in evidence, 14 was displayed and read to the jury) 15 MR. BARKOW: Your Honor, at this point we'd ask 16 permission to publish to the jury what's been admitted into 17 evidence as Government Exhibit 2067. 18 THE COURT: All right. Same limiting instructions, 19 ladies and gentlemen. 20 MR. BARKOW: And I'll do it on the ELMO. 21 THE COURT: All right. 22 (At this point, Government Exhibit 2067, in evidence, 23 was displayed and read to the jury). 24 MR. BARKOW: Your Honor, at this point we'd ask 25 permission to publish to the jury Government Exhibit 2067, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4101 47KLSAT5 1 which has been admitted into evidence. This is subject to a 2 different instruction, your Honor. 3 THE COURT: Right. Ladies and gentlemen, this was 4 offered against Mr. Sattar with respect to his knowledge, 5 intent and state of mind. It's also admitted against 6 Ms. Stewart. 7 MR. BARKOW: Your Honor, if I may publish this, not 8 read it but publish it and read as we discuss this? 9 THE COURT: Yes. 10 (At this point, Government Exhibit 2067, in evidence, 11 was displayed to the jury) 12 MR. BARKOW: At this point, your Honor, we'd ask 13 permission to publish to the jury Government Exhibit 2026, 14 which is in evidence and is offered with respect to Mr. Sattar. 15 THE COURT: All right. 16 I've already given you limiting instructions with 17 respect to this exhibit, ladies and gentlemen. 18 (At this point, Government Exhibit 2026, in evidence, 19 was displayed and read to the jury) 20 MR. BARKOW: Your Honor, at this point in this series, 21 this is the final set. I'd ask we be permitted to first 22 publish on the computer Government Exhibit 2020, which has been 23 admitted into evidence. 24 THE COURT: All right. Same instructions, ladies and 25 gentlemen. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4102 47KLSAT5 1 (At this point, Government Exhibit 2020, in evidence, 2 was displayed to the jury) 3 MR. BARKOW: And now I'd ask that we be permitted to 4 publish to the jury Government Exhibit 2020T. 5 THE COURT: All right. But why don't we take our mid 6 afternoon break. It's about 3:25. 7 Ladies and gentlemen, please remember my instructions 8 not to talk about the case; keep an open mind. 9 All rise, please. Please follow Mr. Fletcher to the 10 jury room. 11 (The jury exits the courtroom) 12 THE COURT: See you shortly. 13 (Recess) 14 THE COURT: There's something up on the screen. 15 MS. BAKER: There is. We had just exhibited the 16 Arabic Exhibit 2020. Actually, in light of the limited amount 17 of time left today, we were hoping to switch and in lieu of 18 showing the translation of that Exhibit 2020T, to switch to 19 Government Exhibit 508, which was discussed this morning, and 20 its translations. 21 And what we would request permission to do in 22 connection with that exhibit is to begin by displaying to the 23 jury the page which is now on the screen for the Court and 24 counsel, which is Page 19 of government Exhibit 1002X, which 25 is, of course, in evidence and was previously published. We do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4103 47KLSAT5 1 not intend to reread that document, but we'd like to display 2 just that portion of that page before turning to Government 3 Exhibit 508 in the revised, redacted form. 4 MR. RUHNKE: Your Honor, we do object to that way of 5 proceeding. It's like having sort of a mini summation -- 6 THE COURT: I agree. 7 MR. RUHNKE: Okay. Thank you. 8 THE COURT: I think the connections should really be 9 drawn in summation rather than now. And it's publishing the 10 exhibit twice to the jury. 11 MS. BAKER: Your Honor, as I said, we don't seek to 12 reread it. We seek merely to display that portion of that 13 page. And I understand the Court's concern. We certainly 14 don't intend to be republishing all of our exhibits twice. We 15 had some difficulty when we started presenting the calls and 16 reading them, they proceeded more quickly than we anticipated. 17 Thus we did not have 508 ready to present immediately at the 18 end of the call, which would have been our preference. 19 THE COURT: But you really wouldn't have -- after the 20 call, you wouldn't have published this again. 21 MS. BAKER: We would not, your Honor, but 22 respectfully, this is Page 19 of a transcript. It's not that 23 far from the end of the transcript. And had we finished 24 presenting the transcript of the call and then immediately 25 turned to Government Exhibit 508, the connection would have SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4104 47KLSAT5 1 been apparent because they would have followed immediately one 2 after the other. And because of the amount of time that has 3 lapsed in between and the number of other exhibits that have 4 been presented to the jury, we seek simply to make that brief 5 display. It will make it easier for the jury to understand 6 Government Exhibit 508, which otherwise appears to them without 7 any context whatsoever. 8 THE COURT: All right. I still think the objection is 9 correct. Particularly when -- I have a long instruction which 10 sufficiently gives the introduction and limitations to 508. 11 And summation really is the time to draw the connections. 12 So, the desire is to move directly to 508? 13 MS. BAKER: Yes, your Honor. 14 THE COURT: Okay. You have to offer, right? And 15 there also is a stipulation? 16 MS. BAKER: Yes, we offer 508 right now, based on the 17 fact that it's a news article which is self-authenticating and 18 it's been redacted in accordance with the Court's directions 19 and various objections raised by the various parties. And so 20 we offer 508 now. 21 508S, which is the stipulation, provides the basis for 22 authenticating the translations, and so we would ask to offer 23 508S -- well, we can make all these offers again in the 24 presence of the jury, but we would offer 508S, the stipulation, 25 in the presence of the jury, seek to read it, and then, based SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4105 47KLSAT5 1 on that, offer the translations, and then seek to display 508, 2 and then read the translations. 3 THE COURT: The translations are 508T, 508T-2 and 4 508-T3? 5 MS. BAKER: Yes, your Honor. With 508T and 508-T3 6 redacted as required. 7 THE COURT: Right. Okay. Let's bring in the jury. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4106 47KSSAT6 1 MR. PAUL: I wanted to alert the court that 2 Mr. Fallick could not be here, and we can proceed in his 3 absence. 4 THE COURT: I am sorry. It's all right to proceed? 5 MR. PAUL: It is. 6 THE COURT: Okay. 7 (In open court; jury present) 8 THE COURT: Please be seated all. 9 All right, Ms. Baker. 10 MS. BAKER: Your Honor, before proceeding with the 11 previously displayed exhibit, the government would like to 12 instead offer at this time Government Exhibit 508. 13 THE COURT: All right. 14 MR. TIGAR: We have made our position clear, your 15 Honor. 16 THE COURT: All right. 17 You want to offer the series of exhibits at the same 18 time? 19 MS. BAKER: Your Honor, at this time we also offer the 20 stipulation which is marked as Government Exhibit 508S. The 21 stipulation itself will afford the basis for offering the three 22 other documents which are marked as 508T, 508T2 and 508T3. I 23 am happy to offer them all now or if I need to read the 24 stipulation first, then I would request that that be admitted 25 first so that I may read it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4107 47KSSAT6 1 THE COURT: All right. 2 No objection to the stipulation. Government Exhibit 3 508S received in evidence. 4 (Government's Exhibit 508S received in evidence) 5 MR. TIGAR: Is there an instruction with respect to 6 these, your Honor? 7 THE COURT: This is just the stipulation. 8 MR. TIGAR: I am sorry. I am ahead of myself. 9 THE COURT: All right, Ms. Baker. 10 MS. BAKER: May I read 508S to the jury? 11 THE COURT: Yes. 12 (At this point, Government Exhibit 508S in evidence 13 was read to the jury by Ms. Baker) 14 THE COURT: All right. 15 As I said, 508S is received in evidence, and you offer 16 then a redacted version of 508, and a redacted version of 508T, 17 an unredacted version of 508T2, and a redacted version of 18 508T3, is that right? 19 MS. BAKER: That is correct, your Honor. 20 THE COURT: All right. 21 Government Exhibits 508 redacted, 508T redacted, 508T2 22 unredacted, and 508T3 received in evidence. 23 Ladies and gentlemen, let me give you some 24 instructions with respect to these exhibits. 25 First, you will see that certain portions of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4108 47KSSAT6 1 Government exhibits 508, 508T and 508T3 have been "redacted," 2 and that is a term which you have heard before in the course of 3 the case. That simply means that parts have been taken out or 4 removed. That is done for legal reasons that do not affect 5 your consideration and you should not be concerned about that. 6 That concerns legal matters that don't affect your 7 consideration. 8 These exhibits are admitted only against Mr. Sattar 9 and not against Ms. Stewart or Mr. Yousry and you cannot 10 consider these exhibits against Ms. Stewart or Mr. Yousry for 11 any purpose. 12 With respect to Mr. Sattar, the exhibits are admitted 13 only as to Counts 2 and 3 and you may assign to these exhibits 14 whatever weight you consider appropriate in your consideration 15 of Counts 2 and 3. However, I instruct you that Exhibit 508T, 16 which is redacted, is received subject to connection with 17 respect to the truth of any matters asserted in the article. 18 What that means, ladies and gentlemen, the term 19 subject to connection, and you may hear that subsequently in 20 the course of the trial, and it means that you can consider in 21 this case the article for the truth of any statements made in 22 the article unless at some point I instruct you to disregard 23 them for that purpose. 24 And that completes my limiting instructions with 25 respect to these exhibits. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4109 47KSSAT6 1 All right. 2 MS. BAKER: Your Honor, at this time I request 3 permission to publish Government Exhibit 508 by displaying it 4 to the jury and pointing out certain portions of it and then 5 would request permission to display to the jury and read 508T. 6 THE COURT: All right. 7 MS. BAKER: Across the bottom of Government Exhibit 8 508 it says in English "Al-Quds Al-Arabi, Volume 10, Issue 9 2881, Saturday/Sunday, 15/16 August 1998." 10 In the upper right-hand corner of the exhibit is the 11 marking "1" denoting Section 1 which corresponds to the 12 translation 508T. In the lower right-hand corner of the 13 exhibit is the marking "2" which indicates the portion that 14 corresponds to the translation 508T2, and in the center, in the 15 upper half of the article is a line of text marked with the 16 number 3, which corresponds to the translation in evidence as 17 508T3. 18 Turning now to Government Exhibit 508T, if I might 19 display it on the ELMO and read it to the jury. 20 THE COURT: All right. 21 (Government's Exhibits 508, 508T, 508T2 and 508T3 22 received in evidence) 23 (At this point Government Exhibit 508T in evidence was 24 read to the jury by Ms. Baker) 25 THE COURT: Why don't we take a stretch break. This SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4110 47KSSAT6 1 is kind of long. 2 All right, please be seated. 3 Go ahead. 4 (Reading continued) 5 MS. BAKER: Your Honor, I would ask permission now to 6 display and read 508T2. 7 THE COURT: All right. 8 (At this point, Government Exhibit 508T2 in evidence 9 was read to the jury by Ms. Baker) 10 MS. BAKER: Finally, your Honor, if I might, if I can 11 display and read to the jury Government Exhibit 508T3. 12 THE COURT: Yes. 13 (At this point, Government Exhibit 508T3 in evidence 14 was read to the jury by Ms. Baker) 15 THE COURT: All right. It's now 4:30, so we will 16 break for the day. 17 Ladies and gentlemen, please remember to follow my 18 continuing instructions. Please don't look at or listen to 19 anything to do with the case. Please remember if you should 20 see something just turn away. Remember please not to talk 21 about this case at all or anything to do with it. It's not 22 among yourselves, not with anyone when you go home this 23 evening. 24 Please always remember to keep an open mind until you 25 have heard all of the evidence, I have instructed you on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4111 47KSSAT6 1 law, and you have gone to the jury room to begin your 2 deliberations. Fairness and justice to the parties requires 3 that you do that. 4 Have a very good evening. I look forward to seeing 5 you tomorrow. 6 All rise please. 7 Follow Mr. Fletcher to the jury room. 8 (Jury left the courtroom) 9 THE COURT: All right. Please be seated all. 10 THE COURT: Is there anything further for me? 11 MR. RUHNKE: Not from us, your Honor. 12 THE COURT: All right. See you all tomorrow at 9:15. 13 (Trial adjourned to July 2l, 2004 at 9:15 a.m.) 14 o 0 o 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4112 1 INDEX OF EXAMINATION 2 Examination of: Page 3 NOEL HEROLD 4 Direct By Ms. Baker . . . . . . . . . . . . 4021 5 Cross By Mr. Tigar . . . . . . . . . . . . . 4065 6 o 0 o 7 8 GOVERNMENT EXHIBITS 9 Exhibit No. Received 10 2010S . . . . . . . . . . . . . . . . . . . 4080 11 2002 and 2003 . . . . . . . . . . . . . . . 4083 12 508S . . . . . . . . . . . . . . . . . . 4107 13 508, 508T, 508T2 and 508T3 . . . . . . . 4109 14 o 0 o 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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