22 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 26 of the proceeding and Day 17 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/
4113 47LSSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 UNITED STATES OF AMERICA, 3 4 v. S1 02 Cr. 395 (JGK) 4 5 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 6 and MOHAMMED YOUSRY, 6 7 Defendants. 7 8 ------------------------------x 8 9 9 New York, N.Y. 10 July 21, 2004 10 10:15 a.m. 11 11 Before: 12 12 HON. JOHN G. KOELTL 13 13 District Judge 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4114 47LSSAT1 1 APPEARANCES 1 2 DAVID N. KELLEY 2 United States Attorney for the 3 Southern District of New York 3 ROBIN BAKER 4 CHRISTOPHER MORVILLO 4 ANTHONY BARKOW 5 ANDREW DEMBER 5 Assistant United States Attorneys 6 6 KENNETH A. PAUL 7 BARRY M. FALLICK 7 Attorneys for Defendant Sattar 8 8 MICHAEL TIGAR 9 JILL R. SHELLOW-LAVINE 9 Attorneys for Defendant Stewart 10 10 DAVID STERN 11 DAVID A. RUHNKE 11 Attorneys for Defendant Yousry 12 12 13 14 15 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4115 47LSSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Good morning all. 4 Please be seated. 5 All right, where will we be in terms of the 6 prospective proof from here? 7 MS. BAKER: Your Honor, it's a little difficult to 8 hear you. I think you asked what we are planning to do. 9 THE COURT: Yes. 10 MS. BAKER: We are planning to begin with Government 11 Exhibit 2029 and 2029T. That is that piece of Sattar search 12 evidence that we were going to turn to before we switched 13 yesterday afternoon to 508. 14 I am sorry, it's a different piece of Sattar search 15 evidence. So we are going to begin with the one piece of 16 Sattar search evidence and then -- 17 THE COURT: 2020T and 2029? 18 MS. BAKER: No, just 2029 and its translation. 19 THE COURT: Okay. 20 MS. BAKER: And then we are going to have three 21 witnesses. 22 THE COURT: All right. 2029 is offered solely against 23 Mr. Sattar and solely with respect to his intent and state of 24 mind. 25 MR. TIGAR: Your Honor, one of the witnesses this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4116 47LSSAT1 1 morning I believe will be Agent Kerns and I needed to raise a 2 matter or wanted to raise a matter with your Honor. 3 Last night at 7:34 p.m. we received an FBI memorandum 4 which was tendered to us in connection with the proposed 5 testimony of an FBI audio specialist, Agent Losinski, or Mr. 6 Losinski, who will be here. 7 Your Honor will recall that with respect to Exhibit 8 1015, which is a DVD now in evidence over our objection 9 containing one VOC file conversation, that I asked Agent Kerns 10 on his first appearance whether or not he listened to 11 conversations. He said he listened to some. And then he said 12 that if the language specialist, and I am paraphrasing, 13 couldn't hear it or there was something they thought was wrong, 14 they would ask to see if it was a technical problem. 15 And you are talking about the language specialist 16 asking you about technical problems, correct? Yes. 17 On redirect, Ms. Baker said, "To your knowledge, were 18 any calls on the trial DVDs I showed you earlier, Government 19 Exhibits 1000, 1015 and 1300, affected by any accident or 20 technical problems?" 21 "A. Not to my knowledge, no." 22 The FBI memorandum that we received last night at 7:36 23 reveals that the conversation on 1015 was flagged by a language 24 specialist sometime before May 14, 2004, which was reflected in 25 the memorandum I have dated May 14, 2004, and it says that when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4117 47LSSAT1 1 an NYO language specialist attempted to listen to the call 2 while finalizing a verbatim transcript needed to introduce the 3 call into court, the LS could hear only one side, could only 4 hear one side of the conversation. 5 If Agent Kerns had personal knowledge of this 6 technical problem, which caused the FBI to send the material to 7 its laboratory in Quantico, then his answer given on redirect 8 was untrue. Regardless of whether or not he had knowledge, 9 because the question was "to your knowledge," this information 10 in this document that we received last night was Brady material 11 with respect to our broad-guaged challenge to all Lockheed 12 Martin calls, including the Lockheed Martin call that is 13 contained on Exhibit 1015. 14 I, at a minimum, am entitled, I think, to ask Agent 15 Kerns about this regardless of the purpose for which he is 16 tendered today. 17 I also request that the court ask the government for 18 an explanation of this problem and that if matters are as they 19 appear to be, that we ought to have had it and did not, that we 20 strike from evidence 1000, 1015 and 1300 -- that is, the 21 conferred exhibits -- and reopen the authenticity hearing. 22 THE COURT: Ms. Baker. 23 MS. BAKER: Your Honor, not everyone means the same 24 thing when they use the phrase "technical problem" and the 25 questions and answers in Agent Kerns' direct testimony or cross SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4118 47LSSAT1 1 or redirect, whatever Mr. Tigar was citing, related to the 2 issue of whether, to his knowledge, during the recordings of 3 any of the calls on the trial DVDs, whether the recording 4 system itself malfunctioned in some way, whether the recording 5 system had some technical problem. And Agent Kerns' answer was 6 that, to his knowledge, it did not. 7 The call at issue here, and it's one call on its own 8 DVD or CD, which is Government Exhibit 1015, and so therefore 9 what we are discussing here now doesn't bear on the recordings 10 on the disks in evidence as Government Exhibit 1000, 1300 or 11 1301, that one call on that DVD suffers from what Mr. Losinski, 12 the enhancing witness, refers to as a near-far problem, which 13 is that when you listen to it in its originally recorded form 14 or the most original recorded form that we have today, you hear 15 Mr. Sattar very loudly and clearly on his end of the phone, but 16 the other speaker on the other end of the phone is very soft 17 and sounds very far away. It's not completely inaudible. It's 18 just much softer and difficult to hear in the VOC file 19 recording. 20 And the fact that it's not impossible to hear, and 21 that it never was impossible to hear, that it was never gone, 22 is illustrated by the fact that there was a tech cut for that 23 call that was produced to the defendants in discovery. There 24 was a draft transcript of that call that was produced to the 25 defendants in discovery. And so it was only in an effort to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4119 47LSSAT1 1 have the best possible quality recording for use with the jury 2 at the trial, because it's an English-language call, that the 3 government arranged for the VOC file of the recording to be 4 enhanced primarily to equalize the volume between the two 5 people speaking so that the volume of the "far party" could be 6 raised to make it more audible, more intelligible, without 7 making Mr. Sattar's end of the conversation too loud and 8 distorted. 9 So the use in a memo, which was not written by Agent 10 Kerns, the memo that Mr. Tigar is referring to, of the phrase 11 technical problem, doesn't mean a problem with the recording 12 system. It means in this instance just the way the call itself 13 sounded because of the telephone connection or issues with the 14 telephone line resulted in a recording in which one party was 15 very difficult to hear and that is the reason why the 16 government had it enhanced. 17 So this memo, which Agent Kerns did not write, is not 18 Brady material of Agent Kerns on anything that he testified to. 19 It has no bearing on the admissibility of the overall 20 collection of calls that are in evidence and the government 21 respectfully submits that as to the one particular call at 22 issue, the VOC file recording of it is in evidence on 23 Government Exhibit 1015. It can be played for the jury. 24 The government will seek to offer through Mr. Losinski 25 the enhanced copy of the call, but if Mr. Tigar wishes to make SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4120 47LSSAT1 1 some use at some point during the trial of the original 2 recording of the call, he is free to do that. And to the 3 extent that there is any issue here that Mr. Tigar should have 4 known sooner about the condition of that recording in its VOC 5 form, he has had the copy of that VOC file on the pretrial 6 discovery set of VOC DVDs that he received for I don't know how 7 many months now, for a great number of months. So this is not 8 the first time that he has received the recording and so it was 9 available to him for him to make whatever determination he 10 wanted about the quality of the recording itself for whatever 11 that means or doesn't mean. 12 But the bottom line is that what is in the memo, which 13 Agent Kerns did not write, just doesn't have the meaning 14 contradictory of the testimony that Agent Kerns gave because he 15 was testifying specifically about the working of the recording 16 systems themselves. 17 MR. TIGAR: Your Honor, I am going to measure my words 18 carefully and I am going to say exactly what I mean. 19 What you have just heard contains falsehoods. I asked 20 Agent Kerns at 3449 and 3450, I asked him about specialists. 21 He used the word "they asked to see there was a technical 22 problem." He used the word technical problem at lines 8 and 9. 23 And I then followed up. 24 "You are talking about the language specialist asking 25 about technical problems, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4121 47LSSAT1 1 "A. Yes." 2 So the word "technical problems" was one he 3 introduced. 4 Then in the portion I quoted from Ms. Baker's 5 redirect, he was asked if there was any technical problems. 6 Ms. Baker asked that, the same word, referring, as she had in 7 the previous question, to my having asked him about problems 8 with the tapes. No, he said, no technical problems. 9 So now we have Agent Kerns defining, understanding 10 that a technical problem includes a problem that a language 11 specialist had. The word technical problem does not appear in 12 the FBI memorandum. He didn't say it did. That FBI memorandum 13 doesn't say that the audio was indistinct. It's written, to be 14 sure, by Agent Sorrells and I have a copy of it for the court. 15 It says, "Could only hear one side of the conversation." 16 Now, Agent Sorrells knows the difference between an 17 inability to hear one side of the conversation and a little 18 problem of the kind Ms. Baker was trying to describe. We know 19 he knows it because on July is 14, 2004 he wrote another 20 memorandum about a group of calls about which Agent Kerns was 21 to testify today. And he said that the specialist there 22 "reported problems hearing some portions of the call (s)." So 23 he knows the difference between unable to hear one side and 24 unable to hear other things. 25 So what we have is there was no ambiguity in my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4122 47LSSAT1 1 question to Agent Kerns. He adopted my words. And then he 2 said no. So an attempt to characterize that as some 3 misunderstanding because everybody uses the word technical 4 problems differently can't possibly relate to one agent talking 5 about one simple set of words as a technical problem. 6 Second, the FBI memoranda in question do indeed 7 reflect these difficulties. And the question, your Honor, 8 ultimately -- there are two questions. One is, well, is it 9 okay because you can hear it? That is an ultimate kind of 10 question. And we have talked about that. 11 But the other question is that everybody to whom the 12 oath is administered owes an obligation to the court and 13 parties and when a witness comes in here and is careless with 14 the truth, that is a problem. And it's not a problem to be 15 papered over as one of semantics. It's the most fundamental 16 aspect of the adversary system. 17 MS. BAKER: Your Honor, there is no basis to strike 18 from evidence the recordings that are admitted. If Agent Kerns 19 understood Mr. Tigar's questions to be incorporating the 20 language specialist's understanding of the term technical 21 problems, and if that is what he meant in his answer, then 22 obviously that meant that as he was sitting there on the 23 witness stand he didn't recall any technical problems. Indeed, 24 there is nothing in this paperwork that indicates that Agent 25 Kerns ever specifically knew of what the issue was that relates SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4123 47LSSAT1 1 to this one particular call that Mr. Tigar is now referring to. 2 The memo that Mr. Tigar has indicates that Agent 3 Sorrells learned from a language specialist that there was the 4 lack of audibility of the one side of that telephone call and 5 so this memo, as I said before, wasn't written by Agent Kerns. 6 There is no indication on its face that he ever saw it. I 7 don't know as I stand here now whether Agent Kerns ever knew 8 about any audibility issue relating to this one call. If he 9 ever knew it or if he knew it and he forgot, then his answer on 10 cross examination was a truthful and accurate answer. 11 And Mr. Tigar, as I said, has long had this recording. 12 He could have followed up on that question and answer on cross 13 examination with further questions, and he did not. And 14 overall the issue of whether part of a conversation is not as 15 audible as we might wish, again, is an issue as to the weight 16 that the jury should or shouldn't afford to that recording. 17 It's not an issue of admissibility. So, again, from the 18 government's perspective, the bottom line is there is no basis 19 to strike anything from evidence and Mr. Tigar had his 20 opportunity to cross examine Agent Kerns about the recording on 21 Government Exhibit 1015 when Agent Kerns previously testified 22 about Government Exhibit 1015 and the call on it. 23 THE COURT: Let me ask you this: Government Exhibit 24 1015 is the VOC file for a specific phone call. That is the 25 VOC file that is unenhanced and it's there. It's the one that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4124 47LSSAT1 1 was identified by Agent Kerns. People can look into it as to 2 what the audibility is with respect to both sides of that 3 conversation. 4 There is another enhanced version of Government 5 Exhibit 1015? 6 MS. BAKER: Yes, your Honor. 7 THE COURT: First of all, nothing that I have been 8 told this morning calls into doubt anything other than 9 Government Exhibit 1015 and not even call into doubt, based 10 upon what I heard, Government Exhibit 1015. Since Agent Kerns 11 going to be testifying, Agent Kerns can be cross examined with 12 respect to Government Exhibit 1015 as to whether there were any 13 technical problems, as to whether those technical problems 14 included audibility problems, whether to his knowledge this was 15 sent to a language specialist, whether that is consistent with 16 his prior testimony that he recalled no technical problems, and 17 that is a matter for cross examination. 18 There is no showing of a Brady violation and no 19 showing to strike any of the exhibits. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4125 47LLSAT2 1 MR. TIGAR: Your Honor, please, I understand the Court 2 has ruled, but what Ms. Baker said in her last set of remarks 3 needs to be looked at against what's at 3418 of the transcript. 4 She specifically asked him about the call that's on 1015, 5 April 27, 1999. She asked him: "Why were you asked to put 6 that particular call... on the CD?" 7 He said, "I was told what the language specialists 8 were having --" 9 I objected on hearsay grounds because I didn't know 10 what was coming. I didn't have this document here, so I 11 couldn't know. And your Honor sustained the objection. 12 THE COURT: Sustained your objection? 13 MR. TIGAR: Sustained my objection. But then 14 Ms. Baker came back to it. But what I'm pointing out here, 15 your Honor, the idea that Agent Kerns didn't know about this 16 call and that this specific call had a problem, which is the 17 representation made, just isn't so. Because at 3418 of the 18 transcript, he was specifically asked about it. 19 THE COURT: But Ms. Baker didn't say that. Ms. Baker 20 didn't say that. She said -- my recollection of what Ms. Baker 21 said is, she can't say, now, whether Agent Kerns was aware of 22 an audibility issue with respect to that tape and didn't take a 23 technical problem to refer to that or had forgotten that. What 24 she said was -- there's no evidence that she deliberately 25 denied the existence of a problem which, at the time he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4126 47LLSAT2 1 responded to that question, he was aware of, or recalled at 2 that time. And what I've said, Mr. Tigar, is you are welcome 3 to ask him about that when he is recalled. 4 MR. TIGAR: I apologize if I have angered the Court by 5 talking too long. 6 THE COURT: No, no. I really don't -- I don't become 7 angry. And please, don't characterize that simply because I 8 state anything with some more emphasis. My effort is to deal 9 with arguments on a reasonable basis when they're raised. 10 MR. TIGAR: Your Honor, may I then ask that -- I've 11 marked -- 12 THE COURT: Let me assure you, you've not said 13 anything to be offensive to the Court. 14 MR. TIGAR: Your Honor, I've marked the matter, the 15 memorandum of May 14th, as LS-21. I'd ask that it be received 16 as a court's exhibit. All parties have copies of it. And I 17 would also ask for a direction that the government -- that no 18 one from the government discuss the colloquy we've just had 19 with this witness, Agent Kerns. So that I have a fair chance. 20 THE COURT: Sure. And my recollection is that that 21 would be Court Exhibit 3. 22 MR. TIGAR: I marked it LS-21, but can I hand it up 23 and have it re-marked. 24 THE COURT: If you want to just leave it as LS-21 and 25 just identify it without admitting it into evidence, that would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4127 47LLSAT2 1 be fine. 2 MR. TIGAR: I just wanted to make sure it's a part of 3 the record, your Honor. May I hand it up to Mr. Fletcher? 4 THE COURT: Sure. 5 MS. BAKER: Your Honor, for the record, prior to 6 Mr. Tigar marking it with the LS designation, it was 7 denominated as a piece of 3500 material for Mr. Losinski as 8 3528-H. 9 THE COURT: Okay. Do you want me to mark it as a 10 court exhibit? I'll mark it, if you wish. 11 MR. TIGAR: Your Honor -- 12 THE COURT: It's identified. 13 MR. TIGAR: I'm a stranger in your town here in that 14 way. Whatever gets it into the record, gets it so it's there. 15 It's a matter of no difference to me. It's just a question of 16 what the Court feels is the best way to do it. Perhaps as a 17 court exhibit would be better. That way there'd be no risk 18 that the jury would get it. 19 THE COURT: Fine. I'll mark it as Court Exhibit 3. 20 (Court Exhibit 3 received in evidence) 21 THE COURT: Okay. Anything else? We're taking a 22 longer lunch break today. And -- it will start at about 12:00 23 o'clock and be two hours. Okay, let's call the jury. 24 MS. BAKER: I'm sorry, your Honor, I want to correct 25 the record. I misspoke. The memo in question was part of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4128 47LLSAT2 1 3528-K, not H. 2 (Jury entering) 3 (In open court) 4 THE COURT: Please be seated, all. Good morning, 5 ladies and gentlemen. 6 JURORS: Good morning. 7 THE COURT: It's good to see you all. Ladies and 8 gentlemen, we're going to be taking a longer lunch break today, 9 and it's going to begin at about 12:00, so we'll see if we take 10 a break in the course of the morning or not. But again, if at 11 anytime anyone feels that they need a break or if I think it's 12 appropriate for a stretch break sometime between now and 12:00 13 o'clock, we'll do that. 14 I leave open the possibility that we'll take a break 15 in the course of the morning. But we'll see. It would be 16 somewhat more than an hour. 17 Okay. Government? 18 MR. BARKOW: Your Honor, at this point the government 19 requests permission to publish and read one piece of evidence 20 from the Sattar search. Government Exhibit 2029 and government 21 Exhibit 2029T, in that order. 22 THE COURT: All right. Ladies and gentlemen, these 23 exhibits were offered solely as to Mr. Sattar and solely with 24 respect to the intent and state of mind of Mr. Sattar. To the 25 extent that these are newspaper clippings, I've already given SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4129 47LLSAT2 1 you the instructions on newspaper clippings, how they're not 2 received for the truth of anything that is asserted in the 3 newspaper articles. Okay. 4 MR. BARKOW: Your Honor, may we publish Government 5 Exhibit 2029 for the jury? 6 THE COURT: Yes. 7 (At this point, Government Exhibit 2029, in evidence, 8 was displayed to the jury) 9 MR. BARKOW: That's the only page of that exhibit, 10 your Honor. May we now publish Government Exhibit 2029T, the 11 translation of that? 12 THE COURT: All right. 13 (At this point, Government Exhibit 2029T, in evidence, 14 was displayed and read to the jury) 15 MR. MORVILLO: Your Honor, at this time the government 16 would call Brian Bartholmey. 17 THE COURT: All right. 18 (Witness sworn) 19 DEPUTY CLERK: Please state your full name; spell your 20 last name slowly for the record. 21 THE WITNESS: My name is Brian Bartholmey, 22 B-a-R-t-h-o-l-m-e-y. 23 DEPUTY CLERK: Thank you. 24 THE COURT: All right. Mr. Morvillo, you may examine. 25 /// SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4130 47LLSAT2 1 BRIAN BARTHOLMEY, 2 called as a witness by the Government, 3 having been duly sworn, testified as follows: 4 DIRECT EXAMINATION 5 BY MR. MORVILLO: 6 Q. Good morning, Sir. 7 A. Good morning. 8 Q. How are you employed? 9 A. At the present time, I'm happily unemployed. 10 Q. How long have you been unemployed? 11 A. Nineteen days. 12 Q. How were you previously employed? 13 A. I was an FBI agent for 28 years. 14 Q. When you retired, when you stopped being an FBI agent, why 15 did you stop? 16 A. I'm sorry, I didn't hear you, Sir. 17 Q. Why did you stop working at the FBI? 18 A. I retired. 19 Q. Where was your last assignment with the FBI? 20 A. Rochester, Minnesota. 21 Q. And you said -- you testified that you were an FBI for 28 22 years? 23 A. Yes, Sir. 24 Q. Could you briefly tell the jury where you were assigned in 25 those 28 years and what kind of work you did? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4131 47LLSAT2 Bartholmey - direct 1 A. Sure. In 1976, after I graduated from our Academy in 2 Quantico, I was assigned in Chicago, Illinois office where I 3 worked primarily white collar crime and public corruption. In 4 1986, I was assigned to the Rockford, Illinois office where I 5 worked drug crimes and gang crimes. In 1996, I was given a 6 seniority transfer to Rochester, which is Minnesota, which is 7 my home area, where I worked from, again, in 1996 till my 8 retirement here early this month. 9 Q. What kind of work did you do in Rochester? 10 A. In Rochester, it's a small office, I always kind of refer 11 to us there as kind of the country doctors of the FBI. We work 12 whatever crimes occurred in those southwest or southeast 13 counties: Bank robberies, homicides, white collar bank 14 offenses. And then part of our duties also included going to 15 the Federal Medical Center in Rochester, which is actually a 16 prison, and conducting investigations there. 17 Q. Directing your attention to May 20th, 2000, were you 18 working on that day? 19 A. Yes, Sir. 20 Q. What was your assignment that day? 21 A. I was assigned to operate tape-recorders and record some 22 conversations that were taking place in the conference room. 23 Q. Did you actually go to FMC Rochester on that day? 24 A. I did. 25 Q. When you got there, did you sign in? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4132 47LLSAT2 Bartholmey - direct 1 A. I did. 2 Q. May I approach, your Honor? 3 THE COURT: Yes. 4 Q. Agent Bartholmey, I've handed you what's been admitted in 5 evidence as Government Exhibit 1760D, and also what's been 6 marked for identification as Government Exhibit 1760. I'd ask 7 you to take a look at Government Exhibit 1760 first and let me 8 know whether you recognize it. 9 A. 1760 is the original official visitors' log from the 10 Federal Medical Center that I would have signed on May 20th of 11 2000. 12 Q. Can you turn to the second page of that book? Do you 13 recognize that page? 14 A. Yes, Sir. That's the page I signed in on on May 20th. 15 Q. And now directing your attention to 1760D, what is that? 16 A. This would be a color copy of the original, 1760. 17 Q. Do you see your signature on that page? 18 A. Yes, Sir. 19 Q. What time did you sign in? 20 A. 7:43 a.m. 21 Q. And what time did you sign out? 22 A. 3:30 p.m. 23 Q. And during that time that you were at FMC Rochester, did 24 you actually make a recording of a meeting there? 25 A. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4133 47LLSAT2 Bartholmey - direct 1 Q. Were you working alone that day or with someone else? 2 A. At that time, I was working with Special Agent Rick Ostrom 3 from our Minneapolis office. 4 Q. What did you do after you signed in that day? 5 A. After signing in in the front lobby, I went to an office 6 located across the hall from the conference room. Some agents 7 had already set up recording devices there: Two tape decks and 8 a television monitor. And when I got to the room I turned 9 those two devices on, and I waited until I was notified that 10 the parties that I was to record were or had arrived at the 11 prison. Once the parties were in place, I loaded new tapes 12 into both tape Deck A and tape Deck B. Prior to putting it in 13 Deck A and Deck B, I put the date of the recordings, and then 14 when the parties were in place, I activated both the A and B 15 tape decks. 16 Q. How did you know when the parties were in place? 17 A. There was a video camera in the conference room, and once I 18 saw the parties arrived, I knew I could activate the devices. 19 Q. Did you activate both devices at the time? 20 A. Yes. 21 Q. Were you in -- withdrawn. 22 Do you know whose office you were in? 23 A. Yes, we were in Kara Christenson's office. She's a 24 litigation specialist for the Bureau of Prisons. 25 Q. Did there come a time during the course of that meeting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4134 47LLSAT2 Bartholmey - direct 1 that you were monitoring that you had to switch the tapes? 2 A. Yes. 3 Q. And what did you do when you had to switch the tapes? 4 A. Well, each of the recording tapes are approximately two 5 hours in length. So at about maybe an hour and 55 minutes or 6 so, I would first stop tape Deck A, remove the tape, put in a 7 fresh tape in tape Deck A, place my initials onto that tape, 8 set it aside. Then I would activate -- actually, I would 9 activate tape Deck A immediately after taking out the tape. 10 Then I would stop tape Deck B, remove that tape, place 11 my initials on it, put in a fresh tape in tape Deck B and 12 reactivate tape Deck B. That way there was always -- there was 13 never a time when at least one of those tape decks wasn't 14 recording in that room. 15 Q. Did you record the entire meeting? 16 A. Yes. 17 Q. Do you know whether the recording equipment was operating? 18 A. Yes. 19 Q. How do you know that? 20 A. There are needles, record level needles on those machines, 21 as I recall. And then -- I don't always, you know, trust 22 technical stuff -- I did it the old fashioned way. I put on a 23 pair of headphones just briefly at the start of the 24 conversation, make sure that I could hear voices. And then I 25 put those headphones down and never picked them up again. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4135 47LLSAT2 Bartholmey - direct 1 Q. Other than that one brief moment when you picked up the 2 headphones to listen to make sure that the recording was 3 working, did you monitor any portion of the meeting that was 4 taking place in the conference room? 5 A. No. 6 Q. At any point during the meeting that was taking place in 7 the conference room, did you, other than when changing the 8 tapes, did you stop or pause the recording? 9 A. No. 10 Q. May I approach, your Honor? 11 THE COURT: Yes. 12 Q. Agent Bartholmey, I've just handed to you what's been 13 marked for identification as Government Exhibits 1710 through 14 1715. 15 A. Yes, Sir. 16 Q. Do you recognize those? 17 A. Yes, Sir. Those are the tapes I made on May 20th of 2000. 18 Q. How do you know that? 19 A. Each of the tapes bear my initials and the date, May 20th, 20 2000. 21 Q. How many total tapes are there? 22 A. Six. 23 Q. And just so I'm clear, does that mean there were three 24 segments of the meeting that was recorded? 25 A. That's correct. There would be three sections of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4136 47LLSAT2 Bartholmey - direct 1 meeting in two different tape decks, so that would be six 2 tapes. 3 Q. Directing your attention now to July 13th of 2001. 4 A. Yes, Sir. 5 Q. Were you working on that day? 6 A. Yes, Sir. 7 Q. What was your assignment on that day? 8 A. As in the early situation, I was assigned to make 9 additional recordings of that activity in that conference room. 10 Q. Did you also sign in on that day? 11 A. Yes, Sir. 12 Q. May I approach, your Honor? 13 THE COURT: Yes. 14 Q. Agent Bartholmey, I've just handed you what's been marked 15 in evidence as Government Exhibit 1761C and what's marked for 16 identification as Government Exhibit 1761. Do you recognize 17 those? 18 A. Yes, Sir. 19 Q. What is Government Exhibit 1761? 20 A. This is the original official visitors' log that I signed 21 in on July 13th, 2001. 22 Q. And turn to the tabbed page of that exhibit, please. 23 A. Yes, Sir. 24 Q. What is government Exhibit 1761C? 25 A. It would be a color copy of Exhibit 1761. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4137 47LLSAT2 Bartholmey - direct 1 Q. For one page of 1761? 2 A. Yes, Sir. 3 Q. And what is that page? 4 A. It's a page showing that I signed in on July 13th of 2001 5 at 8:46 a.m. and I signed out at 3:17 p.m. 6 Q. Were you working with anybody else that day? 7 A. No, Sir, I was alone that day. 8 Q. And while you were at FMC Rochester on that date between 9 those hours, did you actually record a meeting? 10 A. Yes. 11 Q. And was the methodology to record that meeting identical to 12 the methodology that you employed on May 20th of 2000? 13 A. Yes, Sir. 14 Q. Was there anything different? 15 A. No, Sir. 16 Q. Was the equipment that was there the same? 17 A. Yes. 18 Q. May I approach again, your Honor? 19 THE COURT: Yes. 20 Q. Agent Bartholmey, I've just placed before you what's been 21 marked for identification as Government Exhibits 1716, 1717, 22 1718, and 1719. 23 A. Yes, Sir. 24 Q. Do you recognize those? 25 A. Yes, Sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4138 47LLSAT2 Bartholmey - direct 1 Q. What are they? 2 A. These are the tapes that I made on July 13th of 2001. 3 Q. And how do you recognize them? 4 A. Each of these tapes bears the date July 13, 2001, and my 5 initials. 6 Q. When you were making the recordings on that day -- 7 withdrawn. 8 How many tapes are there? 9 A. Four tapes. 10 Q. And are those tapes denoted from Deck A and Deck B? 11 A. Yes, Sir. 12 Q. When you were making the recordings on that day, at anytime 13 did you stop the recorder? 14 A. No. 15 Q. During the meeting? 16 A. No. 17 Q. And to your understanding, was the recording equipment 18 working on that day? 19 A. It was. 20 Q. How do you know that? 21 A. Noting the record level, needles, and also I briefly did a 22 sound level check using the headphones as I did on the earlier 23 occasion. 24 Q. Turning back to the tapes made on the May 20th, 2000 visit, 25 what did you do with those tapes after the meeting ended? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4139 47LLSAT2 Bartholmey - direct 1 A. Placed them in a box in the office, and then left them 2 there so Special Agent Rick Ostrom could take them from 3 Rochester to Minneapolis. 4 Q. Did you also take the tapes from July 13th, 2001 visit to 5 Minneapolis? 6 A. Yes. 7 Q. With respect to any of the tapes that you have up there, 8 have you seen those since they left your custody? 9 A. No. 10 Q. Prior to today? 11 A. Prior to today. 12 MR. MORVILLO: May I have a moment, your Honor? 13 THE COURT: Yes. 14 (Off the record) 15 MR. MORVILLO: I have no further questions, your 16 Honor. 17 THE COURT: All right. 18 MR. TIGAR: No questions. 19 THE COURT: All right. 20 MR. MORVILLO: Your Honor, at this time the government 21 would offer into evidence Government Exhibits 1700 through 1725 22 to the extent that those recordings correspond with transcripts 23 which will be offered into evidence subsequently. 24 MR. TIGAR: We would like them offered for all 25 purposes and without any restrictions. So we don't object to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4140 47LLSAT2 Bartholmey - direct 1 the offer, but we want the restrictions removed. 2 THE COURT: I'll take it under advisement. I'll 3 reserve. 4 Nothing further for the witness? The witness is 5 excused 6 THE WITNESS: Thank you, Sir. 7 THE COURT: You may step down. 8 MR. MORVILLO: Your Honor, may I step outside for a 9 moment? 10 THE COURT: Yes. 11 MS. BAKER: Your Honor, the government recalls Scott 12 Kerns. 13 THE COURT: All right. 14 DEPUTY CLERK: Agent Kerns, having been previously 15 sworn, you are reminded you're still under oath. 16 THE WITNESS: I understand. 17 THE COURT: You may continue. 18 MS. BAKER: Thank you, your Honor. 19 REDIRECT EXAMINATION 20 BY MS. BAKER: 21 Q. Good morning, Agent Kerns. 22 A. Good morning. 23 Q. Your Honor, may I approach the witness? 24 THE COURT: Yes. 25 Q. Agent Kerns, I've handed you an item that's marked for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4141 47LLSAT2 Kerns - redirect 1 identification as Government Exhibit 1315c. Do you recognize 2 it? 3 A. Yes, I do. 4 Q. What is this? 5 A. This is a CD that I created on 7-14-04. 6 Q. What is on the CD? 7 A. Calls from 6-21, 2000. 8 Q. Were you requested to put those calls together on that 9 particular disk? 10 A. Yes. 11 Q. How are you able to recognize that disk as one that you 12 created? 13 A. By the black writing on the bottom. I labeled what was on 14 here, my initials, and the date. 15 Q. I'm going to ask you now to explain to the jury again the 16 process that you used to create that disk. Would it assist you 17 to refer to the diagram that we've used previously, Government 18 Exhibit 1310? 19 A. Yes. 20 Q. Your Honor, may I display government Exhibit 1310 which is 21 in evidence? 22 THE COURT: Yes. 23 Q. Agent Kerns, with reference to Government Exhibit 1310, 24 would you explain to the jury how you created that disk which 25 is marked as government Exhibit 1315D? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4142 47LLSAT2 Kerns - redirect 1 A. Sure. I had a list from the U.S. Attorney's office. 2 THE COURT: I'm sorry? 3 Q. I'm sorry, 1315C. 4 A. 1315C. Yes. I had a list from the U.S. Attorney's office 5 of several calls that they wanted put on a CD to be sent down 6 to our research facility. I found the MOs. What I did was, in 7 Position 1 you place the MOs, the MO; those particular calls 8 were copied to the computer in position Number 2; and then I 9 created -- this is a CD, which was created in position 10 Number 3. At which point I popped it out, wrote the 11 information on it. 12 Q. When you copied the files from -- well, withdrawn. 13 Did you have to use only one magneto optical disk or 14 more than one to retrieve the particular calls that are on this 15 CD? 16 A. Just one. And I believe it was just one side of one, 17 because all the calls are right after another. 18 Q. And when you copied the recordings from that side of that 19 magneto optical disk represented in the diagram as Position 1 20 to the computer shown in Position 2, were they exact copies? 21 A. Yes, they were. 22 Q. Did you change the file format in any way? 23 A. No. 24 Q. Then from the computer shown in Position 2, you copied or 25 burned the calls to the CD as shown in position Number 3? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4143 47LLSAT2 Kerns - redirect 1 A. Correct. 2 Q. Again, were those exact copies? 3 A. Yes, they were. 4 Q. Your Honor, may I approach the witness again? 5 THE COURT: Yes. 6 Q. Agent Kerns, I've handed you two documents that are marked 7 for identification as Government Exhibits 1315L and 1316. Let 8 me ask you to look first, please, at Government Exhibit 1315L. 9 Do you recognize that document? 10 A. Yes, I do. 11 Q. Is that document a list of the audio files that are 12 contained on the CD which is marked as Government Exhibit 1315? 13 A. Yes, they are. 14 Q. I'm sorry, I misspoke earlier. Let me go back. When I was 15 asking you about the particular CD that's in front of you 16 there, that's marked as 1315, correct? 17 A. 1315. 18 Q. With no letter after it? 19 A. No letter after it. 20 MS. BAKER: Your Honor, if my earlier questions might 21 be essentially amended to reflect I was referring to 1315, not 22 with any letter after it. 23 THE COURT: Do you understand that? 24 THE WITNESS: Yes, your Honor. 25 THE COURT: Were those answers accurate with respect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4144 47LLSAT2 Kerns - redirect 1 to government Exhibit 1315? 2 THE WITNESS: Yes, they were, your Honor. 3 THE COURT: Okay. 4 BY MS. BAKER: 5 Q. Let me direct your attention specifically to the left-hand 6 column of the document marked as Government Exhibit 1315L. 7 Does that reflect the date and time of each of the calls that 8 you put onto this CD which is Government Exhibit 1315? 9 A. Yes. The date and start time of the call, correct. 10 Q. And from where do you get the information as to the date 11 and start time of each of the calls? 12 A. It's in the VOC header of each particular call. 13 Q. Turning your attention to the second column of the document 14 marked as Government Exhibit 1315L, what is the information in 15 the second column? 16 A. It's labeled under file name on GX 1315. That is the 17 original file name for that particular call which came off of 18 the MO. 19 Q. And directing your attention to the right hand column of 20 Government Exhibit 1315L, does that column reflect the 21 government exhibit number for court purposes that has been 22 assigned to each of the recordings? 23 A. Yes. 24 MS. BAKER: Your Honor, I would offer Government 25 Exhibit 1315L. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4145 47LLSAT2 Kerns - redirect 1 MR. TIGAR: No objection to 1315L as in Lima. 2 THE COURT: All right. Government Exhibit 1315L 3 received in evidence. 4 (Government's Exhibit 1315L received in evidence) 5 MS. BAKER: Your Honor, may I display a copy of it to 6 the jury? 7 THE COURT: Yes. 8 BY MS. BAKER: 9 Q. Agent Kerns, directing your attention to the second column, 10 the column headed "file name" on GX 1315? 11 A. Yes. 12 Q. Those file names are in a different format than the file 13 names on the previous lists of recordings that you've testified 14 about. Can you explain why these particular file names are in 15 the format that they're in? 16 A. Sure. This is the way -- the file name, this second column 17 from the left, that is the way it appears on any particular MO 18 that we have in our inventory. When I had testified 19 previously, I had stated that I have to search the VOC header 20 because, as you see in the first call, 5349, I have no idea who 21 that call belongs to, the time, the telephone number. So in 22 the VOC header, that information is relevant. 23 Then what I would do, as I testified last Monday, is 24 you rename the call based on the information in the VOC header. 25 So I would take the information from the call, date and time, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4146 47LLSAT2 Kerns - redirect 1 and just rename it and put period -- dot VOC (.voc) so it would 2 make sense. Looking at this particular CD, there are 12 calls. 3 Just looking at that information, unless I open it up as we had 4 previously in a text editor, I have no idea what the telephone 5 calls are. 6 But that's how they are listed in the system. And 7 that is how they are recorded and numbered sequentially. 8 Q. So as to the files on the earlier disks of calls, you were 9 essentially renaming those just for convenience or for ease of 10 use? 11 A. Correct. You'd have so many files, it's the only way you 12 could tell without opening every file what the date and time of 13 the call is. 14 Q. And when you made this CD, this did not go through that 15 extra step of renames the files? 16 A. No, I just copied it to a CD to provide to our research 17 facility. 18 Q. Agent Kerns, let me ask you to look now please at 19 Government Exhibit 1316. Do you recognize that document? 20 A. Yes, I do. 21 Q. Does that document set forth certain information regarding 22 each of the recordings that are on the CD which is marked as 23 Government Exhibit 1315? 24 A. Yes it does. 25 Q. Before you came to court this morning, did you verify the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4147 47LLSAT2 Kerns - redirect 1 accuracy of the information in this document? 2 A. Yes, I did. 3 Q. Did you indicate that on the document somehow? 4 A. Yes, I did. I just signed my name and put today's date. 5 Q. Directing your attention to the left-hand column of 6 Government Exhibit 1316, it shows for each of the calls a start 7 time. 8 A. Correct. 9 Q. From where did you get that information? 10 A. That is in the VOC header in the session start field. 11 Q. Directing your attention to the second call column, that 12 for each call lists an end time. Where did you get that 13 information? 14 A. That information is, if you scroll all the way through the 15 call in a text editor such as Notebook, it's in the session end 16 equals field at the end of that particular call. 17 Q. And then do the remaining two columns show the government 18 exhibit number for court purposes of the recording and the 19 government exhibit number of the disk or disks that the 20 recording is on? 21 A. Yes, it does. 22 Q. And the heading across the top of the document, does that 23 reflect the accurate date of all of the calls and the telephone 24 number of all of the calls? 25 A. Yes, it does. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4148 47LLSAT2 Kerns - redirect 1 Q. And where did the date and telephone number information 2 come from? 3 A. The telephone number comes from the tnum field -- tnum= 4 field in the VOC header, and the call date would come. You 5 could pull that information from either the start time or -- 6 excuse me, the session start or the session end. It's listed 7 in both. 8 MS. BAKER: Your Honor, I offer Government 9 Exhibit 1316. 10 MR. TIGAR: No objection to 1316. 11 THE COURT: All right. Government Exhibit 1316 12 received in evidence. 13 (Government's Exhibit 1316 received in evidence) 14 MS. BAKER: May I publish it to the jury? 15 THE COURT: Yes. 16 BY MS. BAKER: 17 Q. Agent Kerns, based on your review of the start and end 18 times of these calls, is it fair to say that these calls 19 basically all follow directly one after another on this 20 particular telephone number? 21 A. Yes, they do. 22 Q. And the actual recordings, the starting and ending times, 23 either the next one starts right when the previous one ends or 24 only a few seconds later? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4149 47LLSAT2 Kerns - redirect 1 MS. BAKER: Your Honor, I'd offer the disk itself, 2 Government Exhibit 1315. And I have no further questions for 3 Agent Kerns. 4 THE COURT: All right. 5 MR. TIGAR: May I inquire, your Honor. 6 THE COURT: Yes. Actually, ladies and gentlemen, 7 we're about midway through the morning, so why don't we take a 8 stretch break. 9 (Stretch break) 10 THE COURT: All right. Please be seated, all. 11 CROSS EXAMINATION 12 BY MR. TIGAR: 13 Q. Agent Kerns, I'd like to begin by asking you questions 14 about a matter that we discussed the other day, and that is the 15 call on Government Exhibit 1015. Do you remember having 16 discussed 1015? 17 A. I don't know which particular exhibit that was. 18 Q. Do you remember discussing with us the DVD that had one 19 telephone call from April 27, 1999 at 18:29:45? 20 A. Correct, yes. 21 Q. And that was a call -- and that's the only call on that 22 diskette, right? On that disk? 23 A. Yes, it was, I believe. 24 Q. And that was -- you were asked to put that particular call 25 on a single DVD, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4150 47LLSAT2 Kerns - cross 1 A. Correct. 2 Q. And that was because there were technical problems with the 3 call? 4 A. That's what I was told, correct. 5 Q. Who told you that there were technical problems with the 6 single call on that diskette? 7 MS. BAKER: Objection. Hearsay. 8 THE COURT: Not offered for the substance or truth. 9 You can answer that. 10 A. I don't remember who told me to put it on a CD to have it 11 sent down to the research facility. 12 Q. Did a language specialist tell you? 13 A. I don't know if it was one of our language specialists, one 14 of the case people. I don't remember. 15 Q. And was it your information that the language specialists 16 could hear only one side of the conversation? 17 A. If that -- I do remember discussing with the language 18 personnel one call that they were having an issue only hearing 19 one side. I can't remember. I would have to listen to the 20 call to see if it was that particular one. I don't remember. 21 MR. TIGAR: May I approach, your Honor? 22 THE COURT: Yes. 23 BY MR. TIGAR: 24 Q. I'm going to show you now what I have marked as LS-21, and 25 I ask you, Sir, to look at it for as long as you like, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4151 47LLSAT2 Kerns - cross 1 particularly addressing your attention to the paragraph that 2 begins "captured" and then tell the jury whether that refreshes 3 your recollection. 4 A. Yes, this electronic communication states that that was the 5 issue at that particular time. 6 MR. TIGAR: I'm sorry, Sir. May I approach again? 7 THE COURT: Yes. 8 Q. I was asking you, Sir, simply, does this refresh your 9 recollection? 10 A. Yes, it does. 11 Q. And with your recollection thus refreshed, do you recall 12 that the conversation on 1015 in evidence was the one as to 13 which the language specialist said she could hear only one 14 side? 15 A. Correct. 16 Q. And, Sir, do you recall in your earlier appearance being 17 asked the following question and making the following answer? 18 Question -- 19 MS. BAKER: Objection. 20 THE COURT: Overruled. 21 Q. Question: To your knowledge, were any calls on the trial 22 DVDs that I showed you earlier, Government Exhibit 1000, 1015 23 and 1300, affected by any accident or technical problems? 24 Answer: Not to my knowledge, no. 25 Do you recall being asked that question by Ms. Baker SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4152 47LLSAT2 Kerns - cross 1 and making that answer? 2 A. Yes, I do. 3 Q. Wasn't true, was it? 4 A. Well -- 5 Q. Was it true or not true, Sir? 6 A. I had stated at that time that I did not believe it was a 7 technical problem. I have listened to that particular call. 8 That call does not sound to me as if our equipment -- there was 9 an issue with our equipment recording the call. 10 Q. So you're telling us that your answer was based on your 11 view of whether there were technical problems, correct? 12 A. That is correct. 13 Q. The language specialist told you, or you heard, that there 14 was a technical problem, correct? 15 MS. BAKER: Objection. 16 THE COURT: Overruled. 17 A. I believe I was told, and then I actually did listen to the 18 first -- maybe minute of the telephone call. 19 Q. After -- you were asked with regard to problems with 20 language specialists having issues, correct? 21 A. Correct. 22 Q. If they couldn't hear it or there was something they 23 thought was wrong, they would ask to see if it was a technical 24 problem, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4153 47LLSAT2 Kerns - cross 1 Q. Who would they ask to see if it was a technical problem? 2 A. They could have -- in some cases they asked me or one of 3 the other technical personnel assigned to my squad. 4 Q. And when did you first hear that there was a technical 5 problem with the call on 1015? 6 A. I don't remember the exact date when I was told that there 7 was a problem with it. 8 Q. And did you -- was it in May of 2004? 9 A. It could have been, yes. 10 Q. Was it before May the 14th, 2004? 11 A. I don't know. 12 Q. Were you involved in sending that call to the FBI 13 headquarters or FBI facility at Quantico? 14 A. To the effect that I made the CD? Yes. 15 Q. You made a CD? 16 A. Correct. 17 Q. You made the CD that was sent to the FBI facility in 18 Quantico, correct? 19 A. Yes, it was, yes. 20 Q. Did you listen to that CD before you sent it? 21 A. No, I listened to the original call on our system. 22 Q. Did you listen to the original call on your system before 23 you sent the CD? 24 A. Yes, I did. 25 Q. Were you aware that the call was being sent down there to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4154 47LLSAT2 Kerns - cross 1 the FBI facility in Quantico to do something to it? 2 A. Yes. 3 Q. Did you agree with that decision? 4 A. Yes. 5 Q. The reason calls are sent to Quantico is that there are 6 technical problems with them, correct? 7 MS. BAKER: Objection. 8 THE COURT: Overruled. 9 A. When I state "technical problem", I am talking from a 10 computer hardware type issue, as in the case -- which is what I 11 believe on this particular government exhibit. One side not 12 being loud enough, to me; does not state that there was a 13 problem with my equipment, because it recorded the entire 14 length of the call, to my understanding. That means it could 15 have been somewhat -- it could have been easily something with 16 the telecommunications provider or any party on that line. 17 When I speak of technical problems, I am speaking of: We have 18 some sort of hardware problem or we're having some kind of 19 issue with our equipment. 20 Q. So when you answered the question, there's no technical 21 problem, you mean a hardware problem? 22 A. Yes. 23 Q. You don't know anything about audio type technical 24 problems, do you, Sir? 25 A. I wouldn't -- yes, I guess that would be correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4155 47LLSAT2 Kerns - cross 1 Q. The audio type technical problems are handled by Quantico, 2 correct? 3 A. Yes, they handle any problems with calls that they need to 4 enhance in some way to make them more audible, correct. 5 Q. And when you answered there was no accident or technical 6 problems in your earlier appearance, the question I asked you 7 about, did you know at the time you answered that question that 8 that call had been sent to Quantico where they deal with those 9 problems? 10 A. Yes, I knew they were sending it down there, correct. 11 Q. Now, Sir, I want to ask you about the -- pardon me while I 12 turn my back. 13 Someone in the U.S. Attorney's office asked you to 14 assemble the calls that are on the DVD that you have in front 15 of you, correct? 16 A. Correct. 17 Q. And that's Government Exhibit 1300? 18 A. The CD in front of me is 1315. 19 Q. 1315. That's Government 1315. 20 A. Correct. 21 Q. And what you did when you were asked to do that was, you 22 went to the MO disk, correct? 23 A. Correct. 24 Q. And on the MO disk, the calls have file names that are the 25 sequential file names that are on 1315L. Correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4156 47LLSAT2 Kerns - cross 1 A. Correct. 2 Q. For instance, in their file 5349, 5351, 5352 and so on, 3 correct? 4 A. Correct. 5 Q. The DVDs in evidence that you've explained have file names 6 that you put on there based on the session start information, 7 correct? 8 A. That's correct. 9 Q. These file names are file names that are on the MOs, 10 correct? 11 A. On -- yes, on all MOs, Lockheed Martin system -- this is 12 how they are maintained, correct. 13 Q. Now, that's not the file name -- oh, are these calls 14 Lockheed Martin calls or Raytheon calls? 15 A. They're Lockheed Martin calls. 16 Q. On the electromagnetic tapes, they don't have the same file 17 name? 18 A. No. 19 Q. Not only do they not have a VOC file name, they don't have 20 the same sequential numbering file name, correct? 21 A. That's my understanding, correct. 22 Q. When you say the file names on the MO disk are sequential, 23 what does that mean? 24 A. That means in the case of Lockheed Martin, as I testified 25 previously, when it went through the process to -- for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4157 47LLSAT2 Kerns - cross 1 conversion, every call, starting from Number 1 to -- there's at 2 least, on that one particular -- excuse me, one particular 3 tape, there's at least 5,366 calls, at minimum. It takes each 4 one off, and it's my understanding that it numbered it 5 sequentially over however many MOs it took to copy that tape to 6 MOs, so it could be five, six, seven, MOs, depending on how 7 full the tape is. 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 4158 47LSSAT3 Kerns - cross 1 Q. Was there any reason that you adopted this style-naming 2 practice for these things? 3 A. No. 4 Q. Well, I want to look now at Government 1316 in evidence, 5 and we will note, please, let's take -- can we look please at 6 this call, this one here I am pointing to that begins at 7 07:43:16, correct? 8 A. Correct. 9 Q. And it ends at 17:44:20, correct? 10 A. Correct. 11 Q. And the next one starts at 17:44:20, correct? 12 A. Correct. 13 Q. That is exactly the same time, isn't it? 14 A. Yes, it is. 15 Q. So let's keep those two calls in mind. 16 Let's look at 1315L. The first of those calls I 17 pointed to is here, 07:43:16, do you see it? 18 A. Yes, I do. 19 Q. And that file number is 5352, correct? 20 A. Correct. 21 Q. Then the next call we saw starts immediately after that, 22 right? 23 A. Yes, it started at the session end of 5352 was the exact 24 second of that call. 25 Q. And the file name is 5354, which skips a number. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4159 47LSSAT3 Kerns - cross 1 A. Correct. 2 Q. How did that happen? 3 A. Because there are other calls on these tapes from other 4 FISA reportings. 5 Q. You are saying that another call from some other case is on 6 that MO? 7 A. Yes. 8 Q. And it got in there in between 52 and 54? 9 A. Yes. 10 Q. Now, did you have technical problems with the audio files 11 that are on 1315? 12 A. Yes, it appears we did have technical problems as I stated, 13 a computer hardware problem, yes. 14 Q. Did you listen to the calls? 15 A. I listened to I think one or two of them, yes. 16 Q. And what was the hardware problem? 17 A. The issue -- I can't say obviously because I wasn't there 18 at the time. It appears that the call is 12 different files 19 but I believe it's only one call. It looks like the equipment 20 was turning itself on and off, making it look like it's 12 21 separate calls when in fact it's only one. For whatever reason 22 the equipment did essentially a stop call and a start call even 23 though the target or the subject whose line we were up on 24 wasn't physically hanging up the phone or wasn't becoming 25 disconnected. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4160 47LSSAT3 Kerns - cross 1 Q. Now, did you discuss that technical problem with other 2 agents in the office? 3 MS. BAKER: Objection. 4 THE COURT: Overruled. 5 A. No, I don't believe so. 6 Q. Who was responsible for making the decision to do something 7 about this technical problem? 8 MS. BAKER: Objection. 9 THE COURT: Overruled. 10 A. I am sorry, with regard to what? 11 Q. The technical problem about which I have asked you, sir, 12 who was responsible for doing something about the technical 13 problem that you saw on 1315? 14 A. I am just -- with clarification, as with to improve the 15 audio on these calls or the hardware issue? 16 Q. Yes. 17 A. To improve the audio, I was just told that they wanted it 18 sent down to our research facility and that I should put them 19 on a CD and do so. 20 Q. And was the technical problem brought to someone's 21 attention by a translation specialist? 22 MS. BAKER: Objection. 23 THE COURT: Sustained. 24 Q. Did you ever discuss the technical problem with a 25 translation specialist for these calls? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4161 47LSSAT3 Kerns - cross 1 A. I don't know if the two translators ever mentioned to me 2 specifically this problem but I remember that I probably had 3 talked to the case squad that they had had some issues with 4 these particular calls. 5 Q. I am sorry? 6 A. With the case squad, the squad that is responsible for this 7 particular case, and that we were going to have to probably 8 send them down to the research facility in order to get them 9 enhanced. 10 Q. And did anyone ever tell you what the specific problems 11 were? 12 A. They had mentioned that in fact it was essentially one call 13 and that they were hearing I think it was what we call C tone, 14 but dial tone was somehow getting put into the call, which is 15 what would make sense as to why the call would turn itself on 16 and off or, I am sorry, would stop a session and start a next 17 one. 18 MR. TIGAR: May I have a moment please, your Honor? 19 THE COURT: Yes. 20 MR. TIGAR: No further questions, your Honor. 21 Thank you. 22 THE COURT: All right. 23 MS. BAKER: Your Honor, I have one question. 24 THE COURT: All right. Ms. Baker, you may examine. 25 REDIRECT EXAMINATION SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4162 47LSSAT3 Kerns - redirect 1 BY MS. BAKER: 2 Q. Agent Kerns, in the making of the prior disks that you 3 testified about when you changed the names of the files from 4 their sequential number names like the ones that were just 5 displayed to the jury to the names that they have now, which 6 include the telephone number, date and time of the call, in 7 that changing of the file names did you change in any way the 8 audio content of the recording or the signal-related 9 information contained in the files? 10 A. No, I did not. 11 MS. BAKER: Thank you. 12 MS. BAKER: Your Honor, the government renews its 13 offer of the disk marked as Government Exhibit 1315. 14 THE COURT: All right. We will talk about that later. 15 MR. TIGAR: Note my request, your Honor. 16 THE COURT: Agent Kerns, you are excused. You may 17 step down. 18 THE WITNESS: Thank you, your Honor. 19 (Witness excused) 20 THE COURT: All right. 21 The government may call its next witness. 22 MS. BAKER: Your Honor, the government calls John 23 Losinski. 24 THE COURT: Ms. Baker, you may examine. 25 JOHN LOSINSKI, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4163 47LSSAT3 Losinski - direct 1 called as a witness by the Government, 2 having been duly sworn, testified as follows: 3 DIRECT EXAMINATION 4 BY MS. BAKER: 5 Q. Mr. Losinski, who do you work for? 6 A. I work for the Federal Bureau of Investigation. 7 Q. In what capacity? 8 A. I am a signal processing analyst at Quantico, Virginia. 9 Q. Could you briefly explain to the jury what you mean when 10 you say signal processing analyst? 11 A. What I do is I enhance audio recordings that are used for 12 investigative purposes or court presentations, whatever. 13 Q. And you said that you work at Quantico, Virginia? 14 A. That is correct. 15 Q. Is that where the FBI's laboratory is located? 16 A. The laboratory and the facility that I work out of is the 17 Engineering Research Facility. 18 Q. In your capacity as signal processing analyst, do you also 19 examine audio recordings? 20 A. I examine them for the purposes of enhancing them, cleaning 21 them up so they can be better understood. 22 Q. How long have you been doing that kind of work for the FBI? 23 A. Just over 27 years. 24 Q. Have you had any specialized training that enables you to 25 do that work? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4164 47LSSAT3 Losinski - direct 1 A. I have had an extensive internship within the FBI under 2 recognized experts in the field. 3 Q. Have you instructed personnel of the FBI or any other law 4 enforcement agencies regarding the enhancement of audio 5 recordings? 6 A. Yes, I have helped train other people within the FBI. I 7 have also trained people from Secret Service, U.S. Army, 8 Internal Revenue Service. And that is about all I can think of 9 right now. 10 Q. Are you a member of any professional organizations that 11 relate to the work that you do? 12 A. Yes. I am a member of the National Technical Investigators 13 Association. 14 Q. Have you previously testified in court as an expert 15 relating to the enhancement of audio recordings? 16 A. Yes, I have. 17 Q. About how many times? 18 A. I have testified in court approximately 30 times. 19 Q. In what kinds of court? 20 A. Both federal court, state court, military court martial and 21 Canadian general criminal court. 22 MS. BAKER: Your Honor, the government offers Mr. 23 Losinski as an expert in the enhancement of audio recording. 24 MR. TIGAR: May I inquire, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4165 47LSSAT3 Losinski - direct 1 VOIR DIRE EXAMINATION 2 BY MR. TIGAR: 3 Q. Mr. Losinski, have you published any articles about this 4 subject? 5 A. No, sir, I have not. 6 Q. Do you have any formal academic training in this subject? 7 A. There isn't any school that offers course work in what we 8 do. It's all on the job. I do have a Bachelors degree from 9 Mankato State University in Mankato, Minnesota. 10 Q. Do you know Mr. Herold? 11 A. Yes, I do. 12 Q. You work with him? 13 A. Frequently. 14 Q. Is he a part of your same group that works down there? 15 A. Yes, we are in the same unit. 16 Q. You use a lot of the same equipment and so on? 17 A. For the audio side of it, yes. 18 Q. So is he one of the folks that you work with down there? 19 A. Yes. 20 MS. BAKER: Objection. This is beyond the scope of 21 voir dire. 22 THE COURT: I will allow that. 23 Q. The answer is yes? 24 A. Yes. 25 Q. And when you said that you received instructions from other SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4166 47LSSAT3 Losinski - direct 1 people that are experts in this, is he one of those people? 2 A. Actually I got all my training under Bruce Koenig who was 3 one of the senior examiners in the FBI who since retired. 4 Q. Now, is your lab S lab certified? 5 A. We are in the process of getting S lab certified. 6 Q. So you have been bringing everything up to their standards, 7 right? 8 A. I have been helping write the SOPs, and things like that 9 for certification. 10 Q. And you are familiar with all the equipment and so on that 11 you are going to talk about that you used on these devices, 12 right? 13 A. Yes, sir. 14 MR. TIGAR: All right. 15 We have no objection to him testifying about this, 16 your Honor. 17 THE COURT: All right. The witness can testify. 18 DIRECT EXAMINATION (Continued) 19 BY MS. BAKER: 20 Q. Mr. Losinski, I have handed you two pairs of disks. The 21 one pair is Government Exhibit 1015, which is in evidence, and 22 1015D for identification. 23 The other pair is Government Exhibit 1315 for 24 identification and 1315C for identification. 25 THE COURT: Could you stop just one moment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4167 47LSSAT3 Losinski - direct 1 Government Exhibit 1015 and 1015 -- what was the letter? 2 MS. BAKER: D, your Honor. 3 THE COURT: And 1315C. 4 MR. BAKER: Yes, your Honor. 5 Q. Let me ask ask you first about the pair with the lower 6 number. If you would look first at Government Exhibit 1015. 7 Do you recognize that? 8 A. Yes, this exhibit contains my laboratory number, my 9 initials, and my Q designation. 10 Q. Is that a CD containing an audio recording that you 11 received and were asked to process? 12 A. Yes. This was received in our lab back in May of this 13 year. 14 Q. Did you end up processing an audio recording that is on 15 that CD? 16 A. Yes, I did. 17 Q. Let me ask you please to look at the disk that was with it 18 which is marked as Government Exhibit 1015D. Do you recognize 19 1015D? 20 A. Yes, this is the processed copy of item 1015 that I 21 produced back in May of this year. 22 Q. So is 1015 itself what you started with and is 1015D what 23 you created and ended up with? 24 A. Correct. 25 Q. Let me ask you about the work that you did on the recording SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4168 47LSSAT3 Losinski - direct 1 which is on Government Exhibit 1015. 2 Would you tell the jury please, what was the first 3 step that you took upon receiving Government Exhibit 1015 and 4 the audio recording on it? 5 A. Well, the first step after it's unpackaged is just give it 6 a cursory look to make sure it's not damaged in any way. And 7 then I mark the evidence and describe it in my notes, and then 8 I will take it back, put it on an appropriate piece of playback 9 equipment and take a listen to it and see what the problems 10 are. 11 Q. Do you remember what the format is of the recording on 12 Government Exhibit 1015? 13 A. No, I don't offhand. 14 Q. Do you recall based on listening to it after you received 15 it your opinion as to the quality of or any issues with the 16 audio recording that is on that disk? 17 A. The overall quality was fair to good actually. It was a 18 little basey. It had some reverberation. There were a number 19 of tones in it. So there aren't many recordings that we get 20 that can't be enhanced a little bit or cleaned up, make them a 21 little easier to listen to. 22 Q. Do you recall any specific issue relating to the audibility 23 or intelligibility of any of the content of the recording on 24 Government Exhibit 1015? 25 A. Primarily when I listen to tapes or recordings, I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4169 47LSSAT3 Losinski - direct 1 listening for noise and seeing what kind of noise is on there 2 and how can I make it better. And content-wise a lot of times 3 I don't remember what is on them, just how to get rid of the 4 noise. 5 Q. Did you make any notes at the time that you listened to the 6 recording which is on Government Exhibit 1015? 7 A. Yes, I did. 8 Q. Is there something in your notes that would refresh your 9 recollection as to any specific issue that you identified in 10 the recording on Government Exhibit 1015? 11 A. There may be. 12 MS. BAKER: Your Honor, may I approach the witness 13 with Government Exhibit 3528K for identification? 14 THE COURT: Yes. 15 Q. I have folded the document over so that a particular page 16 is on the top. 17 Is that a page of notes that you wrote? 18 A. Yes. 19 Q. Let me ask you to read it over to yourself. Let me direct 20 your attention specifically to the bottom portion of the page. 21 A. Okay. 22 Q. Does that refresh your recollection as to any issue that 23 you identified as to the audibility or intelligibility of any 24 portions of that recording? 25 A. Yes, in my notes I have here that there was a near-far SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4170 47LSSAT3 Losinski - direct 1 party problem, which is typical with a phone conversation, or 2 it could be typical of outdoor meetings or something where 3 somebody is standing quite away from the recording device. So 4 there was a near-far party problem which I tried to level out 5 so that you could hear both sides of the conversation. And 6 there were tones that needed some equalization or some shaping, 7 so that to bring up the high end so you can understand it a 8 little more clearly. And there were a number of tones in there 9 that I needed to reduce. 10 Q. In using the phrase near-far party problem, I believe is 11 how you phrased it, what does that mean about the volume or 12 audibility of the different participants in the conversation? 13 A. Well, one of the talkers is very loud and one of them is 14 very soft. And when you are listening trying to concentrate on 15 it, the one might tend to overwhelm you and the other one you 16 are concentrating on, so what I try to do is bring them both to 17 approximately the same level so you don't have to strain to 18 listen to it. You can just hear everything that is being said. 19 Q. Turning back for a moment to the overall sort of quality of 20 the recording, were you able to hear in listening to it any 21 background noise or noise other than the direct conversation 22 between the speakers on the phone? 23 A. Well, I do have in my notes that there were other voices 24 noted and some of them seemed to be children. 25 Q. After having listened to the recording and made that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4171 47LSSAT3 Losinski - direct 1 assessment of it, what did you decide to do to try to improve 2 the quality of it? 3 A. What I ended up doing was I ran it through an equalizer 4 which will take down a little bit of the base but increase some 5 of the higher frequencies in the voice and put it through a 6 band pass filter which just rolls off some of the low rumble 7 and some of the high end hiss that you might hear, and I put it 8 through -- there is a series of notches I put in there to knock 9 down those tones. And also I also took out some reverberation 10 that was present and flattened out the spectrum with an inverse 11 filter which when applied will just flatten out the audio 12 spectrum. 13 Q. In that explanation you used the phrase notches. Does that 14 refer to some type of filtering software equipment? 15 A. Yes, there is a piece of equipment that is commercially 16 available called an MCAP or multi-channel audio processor. It 17 has approximately 13 filters available at any given time and 18 the examiner can pick and choose what filters they want and 19 what order they want them in, and of each of the 13 filters you 20 have a library of filters you can choose from and depending on 21 the noise and how they occur, you can put the filters in any 22 order you want and one of them happens to be a multi-notch 23 which allows us to take 16 different tones if we wanted to at 24 the same time. 25 Q. Now, in performing that processing that you just described, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4172 47LSSAT3 Losinski - direct 1 did you do that by playing the recording which is on the disk 2 marked as Government Exhibit 1015 through those different 3 softwares or pieces of equipment? 4 A. Yes. We typically play it back. Once we have the filters 5 set up for how we want to run them, we will start the 6 recording, run it through the filters, and in this case go into 7 another computer and then generated a processed copy. 8 Q. In what form did you save the processed recording that 9 resulted from the work that you just described? 10 A. I put it in a WAV file format. 11 Q. Why did you put it in a WAV file? 12 A. Well, one, WAV files are getting to be pretty universal 13 across the country. Any Windows-based computer will recognize 14 WAV fils and play them back. So if we are to get tapes or 15 recordings from somewhere in Wyoming, I could put it on a WAF 16 file and send it back to them and they would be able to play it 17 back. 18 Q. Now, when you first saved that output, the processed 19 recording that you were making, in WAV format, was it on the 20 hard drive of a computer? 21 A. The original? 22 Q. After you processed it and had it in processed form was it 23 initially in a computer? 24 A. It was stored temporarily in a computer and then we burn a 25 CD of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4173 47LSSAT3 Losinski - direct 1 Q. And the CD is the one that is there in front of you marked 2 as Government Exhibit 1015D? 3 A. Correct. 4 Q. Is what is on that CD, 1015D, an exact copy of what was 5 temporarily in your computer after you did the work? 6 A. Yes. 7 Q. Once you burned or copied that recording onto the CD, can 8 it be altered in any way on the CD? 9 A. No. Once the disk is formatted and the data is 10 transferred, the disk is finalized and there is an option on 11 there to make it a read only disk, so it cannot be written to 12 again. 13 Q. Now, the work that you did on or starting with the 14 recording which is on 1015, what, if any, effect did your work 15 have on the "original" recording, which is on Government 16 Exhibit 1015? 17 A. None. 18 Q. In the file that resulted from your work, the file that is 19 on Government Exhibit 1015D, what effect, if any, did the 20 processing that you did have on the actual words that were 21 spoken in the recorded conversation? 22 A. None. 23 Q. Let me ask you to turn your attention now to the other pair 24 of disks that are in front of you -- 25 THE COURT: This is actually just about noon, so we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4174 47LSSAT3 Losinski - direct 1 should break for lunch now and resume this afternoon at 2 2 o'clock. 3 Ladies and gentlemen, it's very important to continue 4 to follow my instructions. Please don't talk about the case or 5 anything to do with it. Please remember to keep an open mind 6 until you have heard all of the evidence, I have instructed you 7 on the law, and you have gone to the jury room to begin your 8 deliberations. 9 Have a very good lunch. I look forward to seeing you 10 after lunch. 11 All rise please. 12 Follow Mr. Fletcher. 13 (Jury left the courtroom) 14 THE COURT: The witness may step down. 15 I will see all of you at 2 o'clock. 16 (Luncheon recess) 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4175 47LLSAT4 1 A F T E R N O O N S E S S I O N 2 2:00 p.m. 3 (In open court; jury not present) 4 THE COURT: May I talk to the lawyers, please? 5 (Whereupon, pursuant to Court order, the following 6 pages, Pp. 4176 - 4178 are sealed) 7 (Continued on next page) 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 4179 47LLSAT4 1 (In open court) 2 THE COURT: All right. Put the witness on the stand, 3 please. 4 MS. BAKER: Your Honor, shall I bring the witness back 5 in or is there any other matter to be addressed first? 6 THE COURT: No, let's bring the witness in. 7 MR. TIGAR: Your Honor, another preliminary matter: 8 When I am examining the witness, your Honor's 9 gray-colored screen obscures your Honor from me. And thus a 10 couple of times -- since I can't see you -- I don't know what 11 to do about this. When you rule on objections, sometimes I 12 can't hear. 13 THE COURT: I'll try and keep my voice up. 14 MR. TIGAR: Okay. Thank you. 15 THE COURT: Please be seated, all. 16 Good afternoon, ladies and gentlemen. 17 JURORS: Good afternoon. 18 THE COURT: I hope you had a good lunch. 19 JURORS: Yes, thank you, yes. 20 THE COURT: All right. 21 Mr. Losinski is on the stand. Mr. Fletcher? 22 DEPUTY CLERK: Mr. Losinski, you are reminded you're 23 still under oath. 24 THE WITNESS: Yes. 25 THE COURT: Ms. Baker, you may proceed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4180 47LLSAT4 1 MS. BAKER: Thank you, your Honor. 2 BY MS. BAKER: 3 Q. Mr. Losinski, before we broke for lunch, I had just asked 4 you to look, please, at the second pair of disks that are on 5 the witness stand there in front of you which are marked for 6 identification as Government Exhibits 1315 and 1315C. Do you 7 recognize Government Exhibit 1315? 8 A. Yes, it contains my laboratory number, initials, and "Q" 9 designation. 10 Q. Is that a CD containing recordings that were sent to you 11 for processing? 12 A. Yes, it was. 13 Q. Did you, in fact, process the recordings that are on it? 14 A. Yes, I did. 15 Q. When did you do that? 16 A. Monday. 17 Q. How many recordings are on Government Exhibit 1315C? 18 A. There were 12. 19 Q. Do you know the format in which those recordings are on 20 government Exhibit 1315C? 21 A. They were in a VOC file format. 22 Q. Before you did any processing of those recordings, did you 23 listen to them? 24 A. Yes, I did. 25 Q. And what do you recall that you noted about the quality of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4181 47LLSAT4 Losinski - direct 1 or any issues with the recordings when you listened to them? 2 A. Those recordings in particular had -- they had a large 3 amount of crackle in them. To me, when I visualize it on a 4 spectrum analyzer, it's white noise, and it's -- not sure 5 exactly where it came from, but it was there. 6 Q. Did you detect any sort of tone at any point during any of 7 the recordings on Government Exhibit 1315? 8 A. Yes, there were about four or five tones on there that I 9 had to reduce down and make it more intelligible. 10 Q. You described earlier when you were testifying about your 11 processing of the recording on Government Exhibit 1015 the kind 12 of process that you followed. Did you follow essentially the 13 same type of process with respect to the recordings on 14 Government Exhibit 1315? 15 A. Yes, basically the same. 16 Q. So therefore you played each of those, quote-unquote, 17 "original" recordings through certain filters or processes? 18 A. Correct. And once I, you know, took a look at the 19 problems, set up the filters, then I would start the recording, 20 play it through the filters I had set up, into another 21 computer; and then consequently burn a CD of it. 22 Q. What effect, if any, did your processing of those 23 recordings have on the, quote-unquote, "original" recordings 24 which are on Government Exhibit 1315? 25 A. None. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4182 47LLSAT4 Losinski - direct 1 Q. You said when you process them you then save them 2 temporarily in a computer? 3 A. Temporarily. 4 Q. And then copied them to a CD? 5 A. Copied them over to a CD. 6 Q. I show you Government Exhibit 1315C for identification. Is 7 that the CD onto which you copied the processed recordings? 8 A. Yes, and it contains my laboratory numbers, initials 9 and "Q" designation. 10 Q. When you copied the processed recordings from the memory in 11 your computer onto that CD, are those exact copies? 12 A. They were the entire session or the entire recording that 13 was on Number 1315, processed, and then put onto 1315C. 14 Q. Once you burned the recordings to the CD which is marked as 15 Government Exhibit 1315C, can those recordings be altered in 16 any way? 17 A. No. The disk was finalized and cannot be written to again. 18 Q. You testified that you began with 13 recordings that are on 19 government Exhibit 1315. Are there also 13 -- sorry -- 12 20 separate recordings on Government Exhibit 1315C? 21 A. Yes, there are. 22 MS. BAKER: Your Honor, may I approach the witness? 23 THE COURT: Yes. 24 MS. BAKER: Your Honor, may I also display to the jury 25 Government Exhibit 1315L, which is in evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4183 47LLSAT4 Losinski - direct 1 THE COURT: Yes. 2 (At this point, Government Exhibit 1315L, in evidence, 3 was displayed to the jury) 4 BY MS. BAKER: 5 Q. Mr. Losinski, I've handed you the original and I'm now 6 showing on the screen a copy of Government Exhibit 1315L. Let 7 me direct your attention to the second column of that exhibit. 8 Does that column set forth the list of the recordings that are 9 on Government Exhibit 1315 namely the recordings that you 10 received for processing? 11 A. Yes, it is. 12 Q. And let me direct your attention to the third column of 13 Government Exhibit 1315L. Is that a list in the third column 14 of the files that are on the CD that you created, Government 15 Exhibit 1315C? 16 A. That's correct. 17 Q. As far as the relationship between the two columns and the 18 pairs of file names that are next to each other, does each file 19 name in the third column, meaning the names of the files that 20 you created, correspond to the name of the file that's 21 immediately to the left of it in the second column? 22 A. Yes. I tried to keep the same numbering sequence that was 23 on the original so there wouldn't be any confusion as to which 24 one was which. And then I also identified it PRC -- stands for 25 processed -- and it was in a WAV file. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4184 47LLSAT4 Losinski - direct 1 Q. And as you just said, in a WAV file. Is that the same file 2 format that you used for the processing of the other recording 3 that you testified about earlier? 4 A. That's what's stored on the CD, correct. 5 Q. As to the spoken word, the conversations that are contained 6 in each of the 12 recordings on Government Exhibit 1315C, what 7 effect, if any, did your processing of the recordings have on 8 those words that are actually contained in those recorded 9 conversations? 10 A. It didn't change any of the words or how they were spoken. 11 MS. BAKER: Your Honor, may I have a moment to confer? 12 THE COURT: Yes. 13 (Off the record) 14 MS. BAKER: Your Honor, I have no further questions 15 for Mr. Losinski. And the government offers Government 16 Exhibit 1015D and Government Exhibit 1315C. More specifically, 17 as to each of the recordings contained on each of those disks, 18 the government offers the portions of the recordings that 19 correspond to the transcripts that the government will be 20 presenting. 21 MR. TIGAR: May I inquire, your Honor? 22 THE COURT: Yes. 23 CROSS EXAMINATION 24 BY MR. TIGAR: 25 Q. Mr. Losinski, when you started out as a signal processing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4185 47LLSAT4 Losinski - cross 1 analyst with the FBI, you were working mostly with audiotape? 2 A. That's correct. 3 Q. And when did you enter the digital era? 4 A. Probably in the mid-80's is when they started using digital 5 recording devices. 6 Q. You've had nearly 20 years of experience with these digital 7 formats, correct? 8 A. That's correct. 9 Q. And you got the originals or you got these two diskettes at 10 different times, one in May and one in July, correct? 11 A. Correct. 12 Q. And you -- with them, you got some information about what 13 the people that sent them to you thought the problems were, 14 correct? 15 A. They send in a communication, yes, to -- their request to 16 get it into our hands. 17 Q. They told you that the translators were having some 18 difficulties hearing? 19 A. I believe that was mentioned once. 20 Q. That's important to you to know what the person sending it 21 to you thinks is the problem, correct? 22 A. No. 23 Q. It's not? 24 A. No. 25 Q. You just start from the beginning? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4186 47LLSAT4 Losinski - cross 1 A. I -- actually, yeah. I mean, I will take a listen to the 2 tape and see where problems exist and proceed on. 3 Q. Let's take this first one in May. It came to you as a VOC 4 file, correct? 5 A. Not really sure. 6 Q. Well, would you take a look, please, at -- do you have 7 Government Exhibit 1315L in front of you, Sir? 8 A. Yes. 9 Q. Would you take a look at that, please, and see if that 10 refreshes your recollection if what you had was a VOC file? 11 MS. BAKER: Objection, your Honor. That exhibit does 12 not relate to the recording that Mr. Tigar is asking about. 13 MR. TIGAR: Oh, I'm sorry. She's right. 14 Q. Well, how about the files on 1315? Do you remember what 15 those were in? 16 A. The one that just came in last week? 17 Q. Yes. 18 A. Those were in a VOC file. 19 Q. VOC file. Let's ask about those, because that's what you 20 have in front of you. 21 Did you know whether or not these files on there had 22 ever been in a different format from VOC? 23 A. No. 24 Q. Did you know whether or not they had ever been compressed 25 and decompressed? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4187 47LLSAT4 Losinski - cross 1 A. No. 2 Q. Do you in your work use compression technology to compress 3 files from one format to another? 4 MS. BAKER: Objection. Relevance. 5 THE COURT: Overruled. 6 A. There are times when we need to do an analogue compression, 7 to get the signal levered. And we're basically compressing it 8 a little bit. 9 Q. When you say an analogue signal compression, that means by 10 applying something like a limiter that changes the amplitude of 11 sine waves, correct? 12 A. Correct. 13 Q. I'm not asking you about the amplitude of sine waves. I'm 14 asking you whether you use a compression program in your work 15 to change digital files, to compress them? 16 MS. BAKER: Objection. Beyond the scope. 17 THE COURT: Sustained. 18 Q. Did you know -- you've already answered that you didn't 19 know whether or not these files were ever in a different format 20 than the one sent you, correct? 21 MS. BAKER: Objection. Asked and answered. 22 THE COURT: Overruled. 23 A. That's correct. 24 Q. You noticed on the second set of files, the ones on 1315, 25 that there was some distortion and crackle at times. Correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4188 47LLSAT4 Losinski - cross 1 A. Correct. 2 Q. Now, in your work -- going back to the days with audiotape, 3 all right? 4 A. All right. 5 Q. Magnetic tape? 6 A. Uh-huh. 7 Q. -- Had you heard crackle before? 8 MS. BAKER: Objection. Relevance. 9 THE COURT: Overruled. 10 A. Yeah, there's a lot of different forms of crackle. I mean, 11 it's just -- it's -- a word to describe something that's hard 12 to describe. It's an impulsive noise, and to me it sounded 13 like crackle. 14 Q. And did it sound similar to the kind of crackle that you 15 heard with degraded audiotapes in the days when you used to 16 work with those? 17 MS. BAKER: Objection. 18 THE COURT: Overruled. 19 A. No. Actually, this one was different. I don't recall 20 hearing anything quite like it before. 21 Q. Based on all your experience, you have no way to tell us 22 where in your expert opinion that might have come from? 23 A. I really don't know where it came from. I really don't. I 24 listened to it, and it just -- it was different. 25 Q. As a result of your applying these various filters and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4189 47LLSAT4 Losinski - cross 1 doing the processes that you did, you transformed these files 2 on both of these disks from a VOC format to a WAV format, 3 correct? 4 A. Well, I'm not sure what format the first one was in, the 5 one in May, but the second one was from a VOC file and stored 6 on a WAV file. 7 Q. Let me show you, please, what's been marked as LS-21, and 8 ask you, Sir, if that refreshes your recollection as to the 9 format of the ones you got in May? 10 MS. BAKER: Mr. Tigar, may I know what that 11 document -- 12 MR. TIGAR: I'm sorry, that's LS-21. 13 THE COURT: You need to ask permission -- 14 MR. TIGAR: I'm sorry. May I approach? 15 THE COURT: All right. 16 MS. BAKER: May I see it, Mr. Tigar? Or can you tell 17 me again the exhibit number? 18 (Mr. Tigar tenders document to Ms. Baker) 19 BY MR. TIGAR: 20 Q. Would you look at what we've marked as LS-21, Sir, and tell 21 us if that refreshes your recollection as to the format of the 22 may files? 23 A. All right, the second paragraph of the detail says it was 24 in a -- 25 MS. BAKER: Objection. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4190 47LLSAT4 Losinski - cross 1 THE COURT: Mr. Losinski, if you're shown a document 2 and asked whether it refreshes your recollection, you should 3 put the document down and, when asked whether it refreshes your 4 recollection, you're being asked to refresh your memory, not to 5 read the document. If it refreshes your recollection, you 6 testify from memory refreshed; and if it doesn't, it doesn't 7 refresh your recollection. 8 THE WITNESS: Well, it really doesn't refresh my 9 recollection. 10 Q. I'll go on to something else while we're looking for 11 another way to get at this. 12 With respect to the exhibits on 1315, Sir, you output 13 them as a WAV file, correct? 14 A. Correct. 15 Q. Do you remember whether or not you outputted the ones on -- 16 the one on 1015 as a WAV file? 17 A. Yes, I did. 18 Q. Now, with respect to 1315, did the number of bytes of data 19 in the WAV file equal the same number of bytes of data in the 20 corresponding VOC file? 21 A. I didn't check to see if the file sizes were the same or 22 not. I know that everything that was on there as far as audio 23 is on the other disk. 24 Q. Did you check or do you remember checking the file 25 modification date on the VOC files? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4191 47LLSAT4 Losinski - cross 1 A. No, I don't recall. 2 Q. That didn't matter to you, did it? 3 A. I'm just looking at the file as a recording. 4 Q. In the days when you were looking at analogue files, did it 5 ever matter to you what generation the file was in terms of 6 whether it was original or whether it had been dubbed? 7 MS. BAKER: Objection. Relevance. 8 THE COURT: Overruled. 9 A. We typically always asked for the original, unless it's 10 unavailable for some reason. 11 MR. TIGAR: No further questions. 12 THE COURT: All right. Ms. Baker? 13 REDIRECT EXAMINATION 14 BY MS. BAKER: 15 Q. Mr. Losinski, in a given day or week, however you can 16 estimate it for us, about how many audio files do you work on 17 processing? 18 A. It can vary anywhere from five to 15. 19 Q. Per day or week? 20 A. Depending on the size and the complexity of the files, if 21 it's -- if they're short files, I might be able to do 12 in one 22 day. But if it's -- if they're five hours apiece, it's going 23 to take a lot longer. 24 Q. With respect to Government Exhibits 1015 and 1015D, I 25 believe you testified that you worked on those in May; is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4192 47LLSAT4 Losinski - redirect 1 correct? 2 A. Correct. 3 Q. But since you started with Government Exhibit 1015 and 4 created the recording on 1015D, is it fair to say that you've 5 worked on at least dozens of other recordings? 6 A. Oh, yes. 7 Q. With a digital recording as your original or starting file, 8 is it significant to you, the particular format of the digital 9 recording? 10 A. No. 11 Q. Why not? 12 A. We deal with what we get in. Our job is to enhance the 13 recordings, to make them as intelligible as we can, so that a 14 judge and jury or investigators can understand what's going on 15 during the recording. However it comes in, we find a way and 16 do whatever we have to do to play it back. 17 MS. BAKER: Thank you. No further questions. 18 MR. TIGAR: May I have a moment, please, your Honor? 19 THE COURT: Yes. 20 (off the record) 21 MR. TIGAR: Nothing further, your Honor. Thank you. 22 THE COURT: All right. The witness is excused. You 23 may step down. 24 MS. BAKER: Your Honor, may I step out as well? 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4193 47LLSAT4 1 (Off the record) 2 MR. BARKOW: Your Honor, may we just have a moment to 3 set up, to shift to a different type of evidence here? We're 4 going to begin reading some transcripts. 5 THE COURT: Would it be convenient to have a break? 6 MR. BARKOW: It might be, a brief one. We just need 7 to switch -- 8 THE COURT: Ladies and gentlemen, we'll take 10 9 minutes. Please remember my instructions, not to talk about 10 the case, keep an open mind. All rise, please. 11 Just follow Mr. Fletcher to the jury room. 12 (Jury exits the courtroom) 13 (Recess) 14 (Whereupon, pursuant to Court order, the following 15 page, Page 4194, is sealed) 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4199 47LLSAT4 1 (PAGES 4195-4198 SEALED) 2 (In open court; jury not present) 3 THE COURT: Please be seated. 4 THE COURT: All right, Ms. Baker. 5 MS. BAKER: Your Honor, the government was going to 6 turn next to the presentation of some recorded telephone calls 7 and the corresponding transcripts. The third call that we 8 would like to present is the recording marked as Government 9 Exhibit 1015. 10 Now, the original recording, 1015, which was on the 11 disk made by Scott Kerns, is already in evidence, but we have 12 now offered through Mr. Losinski 1015D, and we would ask that 13 the court rule on that offer at this time so that we will be 14 able to turn to it as our third call in this sequence. 15 And for the court's information, what we would request 16 to do when we get to the presentation of that call, it is an 17 English-language call and obviously we would like to play the 18 recording while displaying the corresponding transcript, but we 19 would like to play a brief portion of the original recording, 20 which is on 1015, just so the jury can hear a sample of it, and 21 then as the entire recording to go along with the transcript 22 play the enhanced version, which is on 1015D. 23 MR. TIGAR: If your Honor please, I know that the 24 admissibility of these items is pending and I also know that 25 the court's prior decision on authenticity is the law of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4200 47LLSAT4 1 case. And because it is I will not spend much time. This 2 morning I moved to reopen the authenticity hearings as to 1000, 3 1015, 1333. I made some objections at that time. It remains 4 our position after the cross examination today of Agent Kerns 5 that the sponsoring witness intentionally testified falsely as 6 to a material matter in the presence of the jury and that that 7 alone should cause a different decision on authenticity. 8 In addition to that, your Honor, we renew all of our 9 other contentions as made before with respect to this question, 10 including our prior position that the authenticity hearings 11 previously held were prematurely heard. 12 MS. BAKER: Your Honor already denied earlier the 13 request to strike the recordings that are in evidence and Agent 14 Kerns' renewed cross examination this morning made clear that 15 there was not any intentional false statement in his prior 16 testimony. Your Honor obviously had the opportunity to assess 17 his demeanor for yourself, but the government respectfully 18 submits that the substance of his answers and his demeanor in 19 giving them made clear that, if anything, there was 20 misunderstanding as between the questioners and the witness as 21 to the use of particular terminology but he was completely 22 candid in his explanation today of what he knew or didn't know 23 at various points in time about the recording on 1015 and, as 24 stated earlier, anything that he testified to either previously 25 or today with respect to that one recording obviously does not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4201 47LLSAT4 1 have any impact on any of other recordings in evidence. 2 Assuming that your Honor adheres to what you said 3 earlier and does not strike all of the recordings that are 4 already in evidence, the only thing that is at issue at the 5 moment is the enhanced copy of 1015, which is on 1015D. And 6 all of Mr. Tigar's earlier objections and issues have no 7 bearing on the question or at least do not bear at all directly 8 on the question of the authenticity and admissibility of 1015D. 9 That authenticity and admissibility is established through the 10 just completed testimony of Mr. Losinski who is the person who 11 enhanced it from the recording which is already in evidence. 12 MR. TIGAR: Briefly, your Honor, Mr. Losinski said 13 that the tape had a crackle and some distortion. He got the 14 tapes and there was a report about what was wrong with them. 15 He says that in his audio-analogue days he preferred originals. 16 That is a relevant inquiry because electromagnetic tape is 17 magnetic tape. Magnetic tape is magnetic tape. We have heard 18 a great deal of testimony about this and specifically with 19 respect to the D and C exhibits, why the New York field office 20 didn't go back to the most original thing they had remains for 21 us a mystery. 22 I understand your Honor's views as expressed 23 previously about that generation after general but I did want 24 to make the point specifically with respect to this recording. 25 I am not expecting to prevail in this encounter because I know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4202 47LLSAT4 1 the law of the case, but I am just making a point. 2 MS. BAKER: Your Honor, just so the record is clear, 3 Mr. Losinski's testimony about the crackle and distortion 4 related to the recordings which are on Government Exhibit 1315. 5 His testimony as to 1015, which led to the creation of 1015D, 6 is that 1015 had certain background noise and had the near-far 7 party problem. The crackle and distortion was on 1315. The 8 government offered 1315 this morning after Agent Kerns' 9 testimony and the government also has offered 1315C based on 10 Mr. Losinski's testimony. Those offers both remain pending but 11 the government does not expect to reach any of the recordings 12 on those disks today. 13 THE COURT: Okay. I can take up 1315 and 1315C at the 14 end of the day. 15 The only issues relate to 1015. 16 I did rule that there was nothing in the proffer that 17 suggested that there was anything in Agent Kerns' prior 18 testimony that suggested a Brady violation or intentionally 19 false -- a failure to produce Brady material or intentionally 20 false testimony by Agent Kerns. I found that there was nothing 21 in the proffer that would lead me to strike any of the exhibits 22 that were already in evidence, including Government Exhibit 23 1015. 24 Having listened to Agent Kerns' testimony, he was 25 completely credible as to his testimony today, his prior SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4203 47LLSAT4 1 testimony, why he viewed the prior question as dealing with a 2 technical problem in the sense of a problem with the equipment 3 and that remained correct. When asked if there was a problem 4 in terms of audibility that caused the tape to be sent to 5 Quantico to be enhanced, he had no problem coming forward with 6 that without even being confronted with his prior testimony. 7 And it was clear to me, having assessed his credibility, that 8 there is no basis to find that he gave intentionally false 9 testimony, either today or at the prior hearing. There is no 10 basis therefore to strike 1015 or any of the other exhibits 11 without even reaching the other elements of an alleged Brady 12 violation and including materiality. 13 That leads us then to 1015D. As to 1015D, Mr. 14 Losinski's testimony, who is an undisputed expert, together 15 with the other testimony about the generation of 1015 is more 16 than sufficient to allow the admissibility of 1015D, which is 17 identified as an enhanced copy of 1015. The Court of Appeals 18 cases are clear that enhanced copies to filter out background 19 noise and otherwise enhance what is the conversation that is 20 there are admissible. And so 1015D is admitted in evidence. 21 (Government's Exhibit 1015D received in evidence) 22 THE COURT: Now, the last point is the method of play 23 for 1015 and 1015D and I don't know how long that telephone 24 call is. 25 How long is the telephone call? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4204 47LLSAT4 1 MS. BAKER: Your Honor, I don't know. We could put 2 the disk in one of the laptops and -- 3 THE COURT: The only question is the government wants 4 to play to begin 1015 to show the jury what the audibility is 5 of 1015 because it does correspond to testimony about that was 6 elicited with respect to what is a near-far problem. So that 7 is relevant to let the jury hear 1015. 8 1015D is in evidence. It would seem to me that it is 9 in all parties' interest not to have the call played twice, not 10 having looked at the transcript, but that would seem to be 11 true. So that it would seem that the position of simply 12 playing a small portion of 1015 followed by the full version of 13 1015D would be the appropriate way to play that telephone call. 14 All right. 15 MR. TIGAR: Against whom is it offered, your Honor? 16 THE COURT: I am sorry? 17 MR. TIGAR: Against whom is it offered? 18 THE COURT: What is the date of the call? 19 MS. BAKER: April 27, 1999. Your Honor, we are 20 checking to see if it's an exception to the general offer of 21 all of the calls against all of the parties. 22 If your Honor wishes to proceed with the first two 23 calls in the meantime, the government is certainly amenable to 24 doing that. 25 THE COURT: What is the order of the calls? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4205 47LLSAT4 1 MR. MORVILLO: Your Honor, the first call to be played 2 is 1253X, followed by 1254X, followed by -- well, 1015, and 3 then 1015D. 4 I can continue if you would like. 1245 -- 5 THE COURT: Hold on. 6 MR. MORVILLO: There is also going to be a stipulation 7 at some point that is going to be read offering in some of 8 these calls and some of these transcripts. 9 THE COURT: Refresh my recollection on where 1253 and 10 1254 were contained. 11 MS. BAKER: Your Honor, they are both on Government 12 Exhibit 1301. 13 MR. MORVILLO: Your Honor, I believe, if it would help 14 the court, that we can submit the chart that would have the 15 various corresponding exhibits. 16 MS. BAKER: Your Honor, that information is also in 17 the exhibit list. In other words, in the entry in the exhibit 18 list for each audio file it says which DVD it's on by 19 Government exhibit number of the DVD. 20 And I am prepared to address 1015 when the court is 21 ready. 22 THE COURT: Hold on. 23 When were 1253 and 1254 received in evidence? 24 MR. MORVILLO: Are you referring to the transcripts, 25 your Honor, or the actual audio files? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4206 47LLSAT4 1 THE COURT: The audio files. 2 MS. BAKER: Government Exhibit 1301, which is the DVD 3 they are on, was admitted on Monday along with the 1300 both 4 based on Agent Kerns' testimony on Monday. 5 THE COURT: Okay. 6 And 1253 and 1254X? 7 MR. TIGAR: Your Honor, some of the difficulty is we 8 received 1254X only this morning, the transcript. It was in a 9 stack of material that I have here. We would also like to know 10 against whom that is offered, and with respect to 1015T, your 11 Honor, when I say against whom it's offered, we note two of the 12 participants are unidentified and if you look, for example, at 13 page 6, lines 1 through 4 of that, there are declarations that 14 are assertions of fact which then raises the other hearsay 15 issues. 16 MS. BAKER: Your Honor, we still need to offer the 17 transcripts of 1253 and 1254 even though the recordings came 18 into evidence on Monday. 1254 is one of the transcripts 19 addressed in a signed stipulation that I am now offering. 20 THE COURT: And 1253? 21 MS. BAKER: 1253 is an English-language call so the 22 recording itself is the evidence. This transcript is basically 23 a half a page. We do have a transcript that we offer as an aid 24 to the jury, although as the court has already instructed the 25 jury, the recording itself is the evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4207 47LLSAT4 1 And I just wanted to note for the record that 1254 was 2 disclosed to the defendants prior to today. 3 THE COURT: Well, let's take it in order. 1253 is a 4 portion of 1300? 5 MS. BAKER: No, your Honor. I am sorry, let me be 6 more explicit. 1253 is an entire recording. It's one of the 7 several recordings on the DVD where the DVD is numbered 1301 8 but 1253 is one entire recording on that DVD. And 1253 itself 9 is a very, very short recording because it is simply Ms. 10 Stewart leaving a message on Mr. Sattar's answering machine. 11 THE COURT: All right. So 1253 is in evidence. 12 MS. BAKER: The recording itself is in evidence on the 13 DVD marked as 1301. 14 THE COURT: All right. 15 MS. BAKER: 1254, the recording itself -- 16 THE COURT: And 1253 is offered -- 17 MS. BAKER: Against Ms. Stewart and Mr. Sattar. 18 THE COURT: All right. 19 MS. BAKER: 1254, the recording, is in evidence on the 20 DVD marked as 1301, and the stipulation that I am holding, 21 which is marked as 1000S-2, is the basis on which the 22 government offers 1254, the transcript 1254. 23 THE COURT: You must identify 1254 differently than 24 1254 -- 25 MS. BAKER: I am sorry, 1254X is what the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4208 47LLSAT4 1 is offering, which for the record is identical to 1254T. For 2 each call, your Honor, we did a T transcript, which is a full 3 length verbatim, and an X transcript. In some instances the X 4 is actually excerpted down to make it shorter but in some 5 instances it is not, it is the full length, but we thought it 6 would be more clear if just all the transcripts ended up in 7 evidence with the same letter denomination, so we are offering 8 1254X even though it is identical to 1254T. 9 MR. TIGAR: The stipulation, your Honor, deals with 10 the translation and that we did stipulate that they wouldn't 11 testify that this is a translation. It doesn't address the 12 limiting issue -- none of the contents issues are addressed by 13 that. 14 THE COURT: All right. 15 1254 -- 16 MS. BAKER: Is offered against all parties if that is 17 your Honor's question, all defendants. 18 THE COURT: All right. 19 MS. BAKER: And then next would be 1015. 20 THE COURT: All right. 21 Did you want to pause before 1015 so that you can tell 22 me against whom it's offered? 23 MS. BAKER: I am sorry, your Honor, I thought I said 24 that already. It is offered against all defendants. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4209 47LLSAT4 1 MR. TIGAR: Your Honor, we object to receiving 1254 2 with respect to Ms. Stewart. It is a conversation between 3 Mr. Sattar and Mr. Al-Sirri. It does not relate, so far as I 4 am aware, to any charge against Ms. Stewart in Count 1, Count 4 5 or Count 5 or the 2001 counts, and there is no evidence, and 6 none is proffered, that Ms. Stewart will ever be said to know 7 about this conversation in such a way as to make it something 8 culpable related to counts against which she is charged or 9 against. So I am puzzled by the offer against all definition. 10 MS. BAKER: Your Honor, the government respectfully 11 submits that this call itself, 1254T and X, and many of the 12 other calls that the government has presented or will present 13 during this trial, establish that Mr. Al-Sirri, who is the 14 other party to this conversation along with Mr. Sattar, that 15 Mr. Al-Sirri is a co-conspirator in the Count 1 conspiracy to 16 defraud the United States and also in the Count 2 conspiracy to 17 kill and kidnap persons outside the United States and that this 18 conversation, 1254, is co-conspirator statements in furtherance 19 of those conspiracies and therefore the statements are 20 admissible against all defendants. 21 As your Honor has already recognized, evidence 22 relating to the Count 2 conspiracy is relevant against all 23 defendants because Counts 4 and 5, in which Ms. Stewart and 24 Mr. Yousry are charged, depend upon the government establishing 25 the Count 2 conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4210 47LLSAT4 1 THE COURT: What is the date of the call? 2 MS. BAKER: March 20, 1999. 3 THE COURT: I have drawn a distinction in the past, 4 and I do again, and I have gone over this with Mr. Barkow and I 5 have gone over it in other letters. There is a distinction 6 between relevance and hearsay. It may well be that evidence 7 that is relevant to the Count 2 conspiracy is relevant to Ms. 8 Stewart and Mr. Yousry. It doesn't necessarily follow that a 9 conversation in furtherance of the Count 2 conspiracy is 10 admissible as a co-conspirator statement against Ms. Stewart 11 and Mr. Yousry. But the proffer is that it's a co-conspirator 12 statement in furtherance of a conspiracy, the Count 1 13 conspiracy, during and in furtherance of the conspiracy of 14 which the proffer is that Ms. Stewart and Mr. Yousry were 15 members, as well as Mr. Sattar. 16 MS. BAKER: That is correct, your Honor. 17 In addition, I think given the nature of the material 18 support statute and the legal relationship between the 19 underlying terrorist act that the material support statute 20 requires to be supported, and the providing of the material 21 support, that co-conspirator statements in furtherance of the 22 supported conspiracy essentially are equivalent to 23 co-conspirator statements in furtherance of the providing of 24 the material support itself. And I would submit that for 25 purposes of 801(d)(2)(e), and that analysis of when something SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4211 47LLSAT4 1 is a co-conspirator statement, that if it is in furtherance of 2 the Count 2 conspiracy, that it should be viewed as a 3 co-conspirator statement as well for purposes of Counts 4 and 4 5. 5 There is case law, and I can find it but I can't name 6 your Honor a case right now, that the offer of co-conspirator 7 statements may be predicated upon the existence of a conspiracy 8 existing in fact but different from the conspiracy specifically 9 charged in the count of the indictment. 10 THE COURT: That is true, of course. I mean, there 11 are lots of cases that stand for that. The only thing that has 12 to be noted is that if the statement is being offered against 13 parties who are not participants in the conversation for the 14 truth of what is said and it's allegedly there as a 15 co-conspirator statement, then the conspiracy there has to be a 16 conspiracy of which the declarant and the person against whom 17 it's offered were both participants and the conversation has to 18 be in furtherance and during that conspiracy. You have 19 identified the Count 1 conspiracy as one such conspiracy. It's 20 not necessary for me to reach whether there is another 21 conspiracy different from the Count 1 conspiracy and the Count 22 2 conspiracy as to which these people are alleged to be members 23 because the assertion is that the statement is offered against 24 all defendants and the instruction to the jury is subject to 25 connection. I have already told them what subject to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4212 47LLSAT4 1 connection means. They can consider it unless for some reason 2 at some time I tell them not to. 3 MR. TIGAR: Your Honor, we understand the court's 4 discretion with respect to connection. 5 In the first indictment, Mr. Al-Sirri was not listed 6 as a defendant in the conspiracy to defraud the United States. 7 He was listed as a defendant in material support. As the oral 8 argument on the motions of the first indictment, the government 9 made, and I don't have the transcript, certain representations 10 to the court about its case. The position of Mr. Al-Sirri was 11 also discussed at other status conferences. So what we have 12 here, your Honor, is not simply two conflicting or different 13 indictments, we have a record in which today the government 14 counsel makes an assertion in court that Mr. Al-Sirri is a 15 member of the conspiracy to defraud the United States, which 16 differs from the position that the government took in pleadings 17 and in open court on a prior occasion. 18 And I therefore suggest and ask the court to exercise 19 the court's discretion not to receive this subject to 20 connection based on the representation of Mr. Al-Sirri. 21 Second, the pendency requirement may be satisfied with respect 22 to 1254X, but the furtherance requirement on the face of the 23 document does not appear to be and therefore whether what it 24 said is considered a statement within the meaning of 801 or an 25 act is simply not that furtherance requirement that would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4213 47LLSAT4 1 present regardless of which it's offered at. 2 THE COURT: Ms. Baker. 3 MR. RUHNKE: Also, your Honor, I do join in the 4 objection. This sounds like a similar discussion we have had 5 where the government has made a point that the Counts 2 and 3 6 conspiracy depend upon the -- the Count 4 and 5 depend upon 7 proof of the Count 1 and 2 conspiracy or at least the Count 2 8 conspiracy, but there is not an allegation that Mr. Yousry is a 9 member of the Count 2 or Count 3 conspiracy and this 10 conversation seems not to relate at all -- it's hard to tell -- 11 to the Count 2 and Count 3 conspiracy as with many, many other 12 conversations. Therefore, I don't understand why the 13 government is offering this one subject to connection when it 14 hasn't offered similar conversations subject to connection. 15 It's simply not in there. 16 In other words, there is nothing about this conspiracy 17 that deals with the Count 1 conspiracy that I can tell from the 18 document. They are not trying to talk about getting messages 19 to the sheikh, from the sheikh, and and under those 20 circumstances I understand. But I don't see this particular 21 one is coming in against Mr. Yousry. 22 THE COURT: Ms. Baker. 23 Do I have 1253 and 1254? I am looking at the two 24 volumes of the transcripts. 25 MS. BAKER: Your Honor, I have a copy here to hand up. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4214 47LLSAT4 1 THE COURT: Oh, it's not tabbed, okay. 2 Ms. Baker. 3 MS. BAKER: Your Honor, the government adheres to its 4 submission that the statements in this conversation are 5 co-conspirator statements in furtherance of a conspiracy. 6 First of all, although Mr. Al-Sirri was not charged in 7 Count 1 of the original indictment, as your Honor is 8 undoubtedly aware that fact is not dispositive of whether or 9 not someone is a co-conspirator, which is a question that the 10 court must ultimately determine by a 11 preponderance-of-the-evidence standard. It's not contingent 12 upon whether or not particular people are identified as 13 co-conspirators in the indictment. 14 Second, part of what or the essential part of the 15 conversation in Government Exhibit 1254 is essentially 16 discussion between the two conversants about Taha and his 17 stature and, as your Honor is undoubtedly aware from the 18 evidence that the government has presented so far, Taha himself 19 is a very significant co-conspirator in each of the 20 conspiracies in the indictment and so this is two other 21 co-conspirators discussing a third co-conspirator and his 22 stature, essentially sharing information with each other about 23 another key player in the conspiracy. 24 And the law does not require for something to be a 25 co-conspirator statement, the law does not require that it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4215 47LLSAT4 1 specifically further the conspiracy in a direct way in the 2 sense of getting you an affirmative step closer to achieving 3 the goal of the conspiracy, but in fact the law includes within 4 the definition of statements made in furtherance of a 5 conspiracy exactly this kind of providing or sharing of 6 information. 7 As an example, I would cite the Rivera case, which is 8 reported at 22 F.3d at pages which include -- and I only have 9 the intermediate page -- include 436, and the decision in 10 Amado, which is reported in 15 F.3d where the relevant internal 11 page is 234. 12 THE COURT: I know those cases. My question is is 13 this alleged to be in furtherance of the conspiracy charged in 14 Count 1? 15 MS. BAKER: Yes, your Honor. 16 THE COURT: All right. 17 MS. BAKER: Your Honor, if you are currently reviewing 18 Government Exhibit 1254T or X, which are identical to each 19 other, I would direct your attention specifically to the 20 portion that begins on page 13. 21 THE COURT: All right, I will receive it subject to 22 connection. 23 1253 is being offered against Ms. Stewart and 24 Mr. Sattar. 25 1254 is received subject to connection, and I will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4216 47LLSAT4 1 tell the jury again what subject to connection means. 2 You are not going to finish 1015 today. 3 MS. BAKER: Your Honor, given the length of 1254 I 4 don't believe that we will now get to 1015 today. 5 THE COURT: You are also going to need to offer the 6 stipulation. 7 MS. BAKER: Yes, your Honor. 8 The government offers Government Exhibit 1000S-2, 9 which is the stipulation. 10 I am sorry, shall I do that in front of the jury? 11 THE COURT: You have to do that in front of the jury. 12 1253 and 1254 are in evidence but they are subject to 13 limiting instructions which I have to give to the jury. 14 Okay, bring in the jury. 15 MS. BAKER: Your Honor, with respect to 1015D, the 16 disk with the recording, do you wish me to re-offer that in the 17 presence of the jury? Your Honor has now ruled that it is 18 admissible but I didn't know if you wanted that to be redone in 19 front of the jury. It was offered earlier and your Honor has 20 ruled now. 21 THE COURT: 1015D is received in evidence. I can tell 22 that to the jury. 23 (Government's Exhibit 1015D received in evidence) 24 (In open court; jury present) 25 THE COURT: Please be seated all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4217 47LLSAT4 1 Ladies and gentlemen, again, if there is a longer 2 break than usual I very much appreciate your indulgence. I try 3 to deal with legal issues while you are on a break or at lunch 4 or at the beginning of the day or at the end of the day and one 5 thing that I can assure you is that unlike some other cases, I 6 really don't like to have conferences while you are here where 7 the lawyers come up and gather around the bench and you are 8 just sitting there and watching us have a conference. I much 9 prefer, and I think it's more comfortable for you to be in the 10 jury room, and so if some of those breaks appear to be longer 11 than we would otherwise like, I appreciate your indulgence and 12 hope that makes it easier for you when you are sitting here in 13 the jury box, because your comfort is very important to me. 14 There was an offer in evidence of Government Exhibit 15 1015D and Government Exhibit 1015D is received in evidence. 16 Ms. Baker. 17 MS. BAKER: Your Honor, the government offers a 18 stipulation, which is marked as Government Exhibit 1000S-2. 19 THE COURT: All right. 20 No objection, Government Exhibit 1000S-2 received in 21 evidence. 22 (Government's Exhibit 1000S-2 received in evidence) 23 MS. BAKER: Before I request permission to read that 24 to the jury, the government also offers the transcript marked 25 as Government Exhibit 1253X. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4218 47LLSAT4 1 THE COURT: All right. 2 MR. TIGAR: It's an English-language call, your Honor. 3 THE COURT: Yes. 4 Ladies and gentlemen, 1253X is a transcript and it's 5 of an English-language call and I have previously given you 6 instructions about transcripts and I will repeat those from 7 time to time. 8 A transcript of a conversation that is in English is 9 received as an aid to your listening to the recording. It is 10 the recording which is in evidence and the transcript is 11 received as an aid to your listening to the recording which is 12 in evidence. If you hear something on the recording that 13 differs from what appears in the transcript, it is your hearing 14 the recording that counts. The transcript is only an aid to 15 your listening to the transcript to assist you. You, the jury, 16 are the finder of fact. 17 And I also gave you an instruction with respect to 18 foreign language transcripts and I won't repeat that full 19 instruction but, as you will recall, transcripts of 20 conversations that are in a foreign language, the transcripts 21 themselves are received in evidence because those are the 22 translations by translators and it's necessary to have foreign 23 language recordings translated for you so that you can 24 understand what is on the recording and the transcripts reflect 25 the translations by the foreign language translator. So that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4219 47LLSAT4 1 is why those translations on those transcripts of foreign 2 language calls are themselves received in evidence. They are 3 not simply aids to your listening to the recordings, they are 4 received if evidence. 5 So 1253X is an aid to your listening to an 6 English-language telephone call. And I expect that the 7 transcript for 1254 will be received in evidence as a 8 translation of a foreign lack language call. 9 MS. BAKER: Your Honor, may we publish to the jury by 10 reading it to them Government Exhibit 1000S-2? 11 THE COURT: Yes. 12 (At this point, Government Exhibit 1000S-2 in evidence 13 was read to the jury by Ms. Baker) 14 MS. BAKER: Your Honor, on the basis of that 15 stipulation, which is Government Exhibit 1000S-2, and on the 16 basis of two prior stipulations already in evidence and already 17 presented to the jury, which are Government Exhibits 1313, 18 which addresses the relationship between T transcripts and X 19 transcripts, and Government Exhibit 1314, which relates to the 20 voice identifications in the transcripts, based on all of those 21 stipulations the government offers the transcript Government 22 Exhibit 1254X. 23 THE COURT: All right. 1254X received in evidence. 24 (Government's Exhibit 1254X received in evidence) 25 THE COURT: Ladies and gentlemen, with respect to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4220 47LLSAT4 1 1254X, that is a transcript of a foreign-language call, so the 2 transcript itself is in evidence. It is admitted subject to 3 connection. I previously explained to you what subject to 4 connection means. 5 Let me just repeat it for you. 6 When I say that something is admitted subject to 7 connection, it means that you can consider it unless at some 8 point in the course of the trial I tell you to disregard it. 9 So it's an instruction which says you can consider it unless at 10 some point I tell you that you should disregard or place 11 limitations on that piece of evidence. 12 All right. 13 MS. BAKER: Your Honor, at this time the government 14 asks to play the recording in evidence which is Government 15 Exhibit 1253 and to display to the jury as an aid the 16 corresponding transcript, Government Exhibit 1253X. 17 THE COURT: All right. 18 And, ladies and gentlemen, I should tell you that 19 Government Exhibit 1253 is offered against Ms. Stewart and 20 Mr. Sattar. Again, the transcript is solely as an aid to your 21 listening to the recording which is in evidence. 22 MS. BAKER: Your Honor, if you would ask the jurors to 23 put on their headphones please. 24 THE COURT: All right. 25 Ladies and gentlemen, you can put on the headphones. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4221 47LLSAT4 1 Remember, the dot faces out and you have to turn it 2 on. 3 (At this point, Government Exhibit 1253 in evidence 4 was played for the jury) 5 THE COURT: All right. 6 MS. BAKER: Your Honor, at this time we ask permission 7 to present to the jury Government Exhibit 1254X by reading it 8 to the jury and for that purpose we ask that Mr. Forkner be 9 permitted to come forward to read the part of Mr. Sattar and 10 that I be permitted to read the part of Yassir al-Sirri. 11 THE COURT: All right. 12 MS. BAKER: And may we also display the transcript to 13 the jurors on the screen? 14 THE COURT: Yes. 15 (At this point, Government Exhibit 1254X in evidence 16 was read to the jury) 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4222 47LLSAT6 1 THE COURT: Ladies and gentlemen, by the clock it's 2 4:30, so it's time to break for the day. Tomorrow is Thursday 3 we will only sit until 12:15 or so. We'll begin at 9:30. 4 Please remember to follow all of my instructions: 5 Please don't look at or listen to anything to do with the case. 6 If you should see or hear something inadvertently, just turn 7 away. Please remember not to talk about the case at all or 8 anything to do with it. Please always remember to keep an open 9 mind until you've heard all of the evidence, I've instructed 10 you on the law and you've gone to the jury room to begin your 11 deliberations. 12 Have a good evening. I look forward to seeing you 13 tomorrow. All rise, please. 14 (Jurors exit the courtroom) 15 (In open court; jury not present) 16 THE COURT: All right. Please be seated. 17 There are several issues. There's the outstanding 18 issue of the 1700 series, if memory serves me right. There's 19 1315, and 1315C; and then there's 1015. 20 The 1700 series? As far as I can tell, and the 21 parties can correct me if I'm wrong, there's nothing for me to 22 do at the moment. The authenticity is not an issue. The 23 government has proffered excerpts from the 1700 series that 24 correspond to the redacted transcripts. The defendants say 25 they don't object to authenticity, and even the defendants say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4223 47LLSAT6 1 let the full transcripts in, let the full recordings in. Is 2 that right? 3 MR. TIGAR: The authenticity portion, yes. The lack 4 of objections to the government's proffered transcripts I think 5 yes, as far as Miss Stewart is concerned. We had objected to 6 the February, 2000 recordings on hearsay. To the extent there 7 are nonhearsay furtherance grounds... 8 THE COURT: Okay. 9 MR. TIGAR: As to that, your Honor, the case law on 10 what is furtherance and what is conspiracy, I mean, I think 11 we're all operating on the basis of some pretty common 12 assumptions here. I hadn't planned to file a big brief about 13 it. I believe Ms. Baker cited Rivera, that's Moldonado Rivera, 14 Judge Kiersh's opinion. 15 MS. BAKER: No -- I believe there is a Moldonado 16 Rivera decision which does bear on this same general subject, 17 but there's a different decision just called Rivera. Moldonado 18 Rivera is 922 F.2d and 934. The case I cited earlier is just 19 Rivera, at 22 F.3d at pages that include 436. 20 MR. TIGAR: Thank you. I agree with that. 21 THE COURT: Okay. At this point the defendants were 22 going to give to the government their transcripts by today or 23 tomorrow? I forget which, Mr. Ruhnke. 24 MR. RUHNKE: Your Honor, the status of that is that -- 25 I spoke to Mr. Morvillo about his resolving the FISA issue, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4224 47LLSAT6 1 which strikes me as a little absurd that the defendant has had 2 access to and the government has not had access to them. And 3 he's working on resolving that. 4 I've got the CDs of the FISA notebooks. 85 percent of 5 the prison visits -- I'm not going to say all of the prison 6 visits, I'm waiting for the third CD of basically 90 percent of 7 the prison phone calls. If this is not resolved by tomorrow 8 we'll contact Mr. Messner, the wall AUSA team. But by tomorrow 9 we'll have them either directly or behind the wall. 10 MR. MORVILLO: Your Honor, there was a classified 11 order entered by the FISA board in this case early that we're 12 trying to deal with the Office of Intelligence and Policy 13 Review over, and we are making some progress, but it is 14 possible that we may have to go back to the FISA court for an 15 additional order. 16 THE COURT: That can be done very quickly? 17 MR. MORVILLO: Well, hopefully it can be done very 18 quickly, if it's necessary. That's not my job to decide 19 whether it's necessary or not. That's a different office, 20 different component of the government. They're making that 21 assessment, and I hope that when I get back to my office today 22 I have a message telling me the issue's been resolved and we 23 can take custody of these materials. But it is something that 24 should be resolved quite expeditiously. 25 THE COURT: In reviewing the stipulation and order it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4225 47LLSAT6 1 seems to me that the timetable has been substantially 2 accelerated from what was originally contemplated in the order 3 so that, depending upon what the government's review of the 4 transcripts are, all of this may have been substantially 5 accelerated rather than slowed down. 6 MR. MORVILLO: The only potential problem is the 7 volume of material that the government's going to be expected 8 to review and make a determination with respect to. I don't 9 know, as I stand here today, what portion of the prison 10 recordings and the -- well, the prison telephone calls and the 11 prison visits were redacted as minimized. I don't know if it's 12 90 percent or if it's 5 percent. 13 THE COURT: Well, you know what you have that you had 14 intended to offer, and you know the approximate length of the 15 prison visits, so you know -- 16 MR. MORVILLO: I estimate that it's about 50 percent, 17 but I haven't sat down and listened to all the prison visits 18 and timed them and gotten through and tried to figure out how 19 long each redaction is and compare that and add that up. So I 20 can only represent to the Court: I don't have a firm 21 understanding. I have an approximation. Somewhere I think 22 between 40 and 60 percent, but I really don't know. 23 But no matter what, it's going to be several hundred 24 pages of transcripts. There are 63 prison visits, each of 25 which are an -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4226 47LLSAT6 1 THE COURT: You haven't even gotten to the prison 2 telephone calls yet. The 1700 series is just the visits. 3 MR. MORVILLO: That's correct. And there are I 4 believe over a 2000 pages of transcripts that exist with just 5 the redacted portions. So there could be another 500 pages of 6 transcript that we have to look at, and then we have to analyze 7 those to make the determination as to whether they're relevant, 8 whether they are otherwise admissible, and whether there is a 9 valid completeness argument. 10 So that can't be done overnight, I submit. We can do 11 it hopefully quickly, but as I stand here today, I don't know 12 when we'll be able to have access to the material. Hopefully 13 that will happen tomorrow; maybe by Friday. And then we can 14 spend time reviewing these and trying to negotiate with defense 15 counsel what should and what should not be in it. 16 THE COURT: Defense counsel, other than the objection 17 with respect to hearsay on the February 22000 visit, has said, 18 Play them all. 19 MR. MORVILLO: That doesn't mean they're admissible. 20 THE COURT: No. It doesn't necessarily mean that. 21 But it was Ms. Baker who said from a practical standpoint of 22 how it would appear to the jury and -- from a -- 23 MS. BAKER: Your Honor, if I might clarify what I said 24 earlier. 25 THE COURT: From a wise, you know, extemporaneous SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4227 47LLSAT6 1 discussion, and it's hard to -- if the defendants say, We want 2 the rest in, then the question would be what the objection 3 would be. First, it would be completeness. But there could be 4 an objection with respect to hearsay, defendants offering their 5 own words, as to which the defendants would say, We're not 6 offering them for the truth; we're offering them for the 7 content, we're offering them to show what we talked about, not 8 for the truth of anything that's said. 9 MS. BAKER: Your Honor, just to clarify my statement 10 of the other day, because I know it has been quoted back even 11 at times when I was not here to clarify it. 12 THE COURT: Right. 13 MS. BAKER: So I wish everyone to understand what I 14 intended by my statement was. If the Court were to ultimately 15 rule -- if the parties don't agree, if the parties are 16 disputing over portions of the visits and the Court were to 17 need to rule to resolve that dispute and were to rule that the 18 visits are admissible in their entirety notwithstanding any 19 objections that the government might assert, then the 20 government might choose to have the visits played in their 21 entirety in the government's case. I didn't mean by what I 22 said to say that the government would not have any objections 23 to any portions of the visits. I'm obviously not in a position 24 to say anything like that since we on the government trial team 25 have no idea what is in those redacted and minimized portions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4228 47LLSAT6 1 and whether any of it is hearsay or is inadmissible for any 2 other reason. 3 THE COURT: Well, I'm -- I could go back and look at 4 the transcript. It was in the context of a discussion, plainly 5 posed as a discussion that was not meant to be binding on 6 either side. But was to present to you what the issues were 7 that had developed in the course of the conversations between 8 counsel. And -- so no one was bound by that. I certainly took 9 your comments as your instinctive reaction to the thought that 10 only part of the conversations would be offered when the 11 defendants were vigorously saying that the rest of the 12 conversations should be played, and that your instinctive 13 reaction was that the government's position, you thought, 14 without binding yourself, because you'd never read the rest, 15 would be to admit the rest of the transcripts. 16 And, as I told your colleagues when you were not here, 17 I believe, I thought that that was a wise counsel of prudence, 18 and I thought that some of your colleagues were trying to 19 backtrack on that and some of your comments now give that same 20 sort of hint of that. 21 MS. BAKER: Your Honor, I certainly don't mean to give 22 the appearance that I'm backtracking, nor do I mean to give the 23 appearance that there's any difference of opinion with my 24 colleagues and I. If anything, I didn't express myself clearly 25 when I spoke in court the other day. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4229 47LLSAT6 1 What I had in mind when I spoke was the following 2 situation: When the government presents a witness on direct 3 examination and we know that there is impeachment information 4 about the witness that is inevitably going to be presented to 5 the jury, if not by us, then on cross-examination, but 6 impeachment evidence that is admissible and is going to come 7 out, the government often regularly chooses to draw the sting 8 by eliciting that information on direct examination. And if we 9 were to know, embarking on the prison visit portion of the 10 case, that ultimately, the entirety of the prison visits are 11 admissible, then that is something that would affect our 12 decision-making. 13 I didn't mean to concede in any way that the entirety 14 of the prison visits is admissible, because I don't know that; 15 and if there are portions that would be hearsay when offered by 16 the defendants, if there are portions that are discrete and 17 would not be admissible under a rule of completeness objection, 18 or for any other reason, I certainly didn't mean to give up any 19 rights that the government had to make any objections and to 20 just blanketly agree that the content comes in. 21 THE COURT: Well, I said, you know, I fully appreciate 22 that this was in the context of an extemporaneous discussion 23 that was posed to me as a matter for discussion among the 24 parties. But when the defense is that, you know, we were 25 talking about legal matters, then one would at least question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4230 47LLSAT6 1 whether other aspects of the visit, now that attorney/client 2 work product has all been waived, that, irrespective of 3 arguments as to hearsay, that you know, one would question how 4 that could not come in. Again, I don't decide anything until 5 it's briefed or argued to me on the facts and the law, but that 6 was why I thought that your position showed a wise instinct. 7 Again, it was not binding on any of the parties, no more than 8 the statements by the defendants were binding at that time. 9 MS. BAKER: Your Honor, respectfully, because we 10 really don't know anything about what's in those portions, it 11 is to me conceivable that there are discussions of things that 12 could be viewed as legal matters that yet could not fairly in 13 any way be construed as relating to the kinds of allegedly 14 legal matters that are touched upon, at issue, in the conduct 15 of the defendants that forms the basis of these charges. I 16 mean, it's conceivable that there was discussion of legal 17 matters relating to some civil lawsuit that Sheikh Abdel Rahman 18 wanted to bring against someone related to his financial 19 matters. And, if that's the case, that doesn't have anything 20 to do with conduct of the defendants in furtherance of 21 disseminating his statements in furtherance of Islamic Group 22 activities or things of that nature. 23 All of this is to say: We aren't in a position to 24 know what's in there, and we won't until we've been authorized 25 to receive it; receive it; and have had an opportunity to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4231 47LLSAT6 1 review it. 2 And this goes back to the timing issue, that we are 3 severely hampered now in our ability to address this issue in a 4 careful and informed way because we just essentially had this 5 issue be clarified that it exists the day before yesterday 6 instead of the amount of lead time anticipated by the 7 protective order, and I understand that the protective order at 8 one level provides time for Mr. Schmidt to act on Abdel 9 Rahman's behalf and, on another level, provides time for the 10 Court to rule on any disputes, but also, speaking as the 11 proponents of the protective order, part of the purpose of it 12 was so that the government would have time, the trial team, 13 would have time upon receiving this material to assess it and 14 its admissibility and decide how to proceed in light of it. 15 And, you know, this is exactly the situation that we 16 were hoping to avoid, but now find ourselves in. And I 17 understand we're already in this situation and there's nothing 18 that can be done to change that. I only ask the Court's 19 indulgence in not pressing us harder than we are capable -- I 20 appreciate the Court not taking what I said the other day as an 21 admission. I didn't intend it that way. And we just ask the 22 Court's indulgence because we're trying as fast as we can to 23 arrange to have access to the material, but then it really is 24 going to be a significant task for us to review it and assess 25 it and make educated decisions in light of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4232 47LLSAT6 1 THE COURT: The parties really have to think about 2 what the issues are that are raised by it and how they will be 3 presented to the jury. Because, as I heard, portions of these 4 prison recordings are enhanced, portions of them are not. Is 5 that not right? 6 MS. BAKER: Your Honor, they were all enhanced in 7 their entireties. And then redacted copies were made. So 8 there are enhanced complete recordings and then there are 9 redacted enhanced recordings. And the government authenticated 10 both. 11 THE COURT: 1700C is the complete? 12 MS. BAKER: Correct. 13 THE COURT: And "D" is the redacted. 14 MS. BAKER: Correct. 15 THE COURT: So it doesn't have to go back for it -- 16 MS. BAKER: Well, first of all, there's the separate 17 issue of the translations and the fact that we don't have 18 anywhere near finalized translations of the portions that were 19 redacted out. But second of all -- 20 THE COURT: Right. I mean, the defendants are the 21 only ones with the translations of what you haven't seen. 22 MS. BAKER: Correct. And obviously, you know, we 23 assume the defendants are making good faith efforts to make 24 accurate translations. But -- well, first of all, let me say, 25 as I said to your Honor the other day, the FBI did a draft SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4233 47LLSAT6 1 translation of the entirety of each visit in order for the 2 minimizations and redactions to be done, so there was -- I 3 don't want the Court to be misled, there was an FBI draft of 4 the entirety of each visit. But the portions that were 5 redacted and minimized out have never been revised in light of 6 the enhanced recordings, have never been re-gone over. All of 7 the steps that go from taking a first draft of a transcript and 8 getting it to the point where it's final and ready to be used 9 in court. So there is a draft somewhere in the possession of 10 the government, but it isn't anything on the verge of being 11 able to be used in court. 12 THE COURT: Where do you stand as between you and the 13 defendants with respect to the transcripts of the portions that 14 the trial team has seen? 15 MS. BAKER: As far as whether there is agreement to 16 the accuracy of the -- I don't know whether there's been any 17 discussion about that. 18 MR. RUHNKE: We're waiting for final versions, 19 basically. 20 MS. BAKER: Your Honor, as I said in court the other 21 day, we are doing our best to have this all ready. We do not 22 expect substantive changes from the more recent drafts that 23 were provided to the defendants. So we would request that the 24 defendants look at those more recent drafts with a view to 25 their accuracy of the portion that we the trial team have had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4234 47LLSAT6 1 access to. 2 (Whereupon, Mr. Morvillo exits the courtroom) 3 THE COURT: Okay. 4 MS. BAKER: But anyway, to go back to your Honor's 5 previous question about the redactions of the recordings, the 6 point that I sought to establish in the latter part of 7 Mr. Herold's testimony yesterday is that right now, for each 8 visit, there is a redacted version that corresponds to the 9 minimized and redacted transcript that the government trial 10 team has had access to. If any different redactions were to be 11 required as a result of, for example, the Court ultimately 12 ruling that some portions come back in but not all, that would 13 require redoing on the part of Mr. Herold. You can't just plug 14 additional pieces back in. 15 THE COURT: Do you need a break for any reason? 16 MR. TIGAR: No, your Honor. When this gate is left 17 open, it makes a clicking noise. It's like water dripping on 18 your head. So I had to fix it. 19 MS. BAKER: We apologize for Mr. Morvillo's abrupt 20 departure, but he just got paged by DOJ about this very issue. 21 THE COURT: Fine, okay. 22 That's certainly an argument for putting in the full 23 recording because of the problems that would be raised with 24 portions. 25 MS. BAKER: Respectfully, your Honor, the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4235 47LLSAT6 1 doesn't agree with that position. The government would find a 2 way to address the logistical problem rather than allow the 3 admission of portions that the government views to be 4 inadmissible. And so we don't wish to concede that point. 5 THE COURT: Okay. 6 MS. BAKER: And we want to evaluate the portions on 7 their merits. 8 THE COURT: So then Mr. Herold's testimony about the 9 difficulties are really sort of beside the point because they 10 would be overcome if you were trying to put in part. 11 MS. BAKER: I hope that I didn't consume the Court and 12 the jury's time with testimony that was beside the point. I 13 don't think they're beside the point. I wanted the court to 14 understand that. 15 THE COURT: Okay. 16 MS. BAKER: It's not something that the government 17 will be able to hand over instantaneously. But, you know, 18 again, we have to know what's in the evidence and then make 19 decisions based on that. 20 MR. RUHNKE: Your Honor, just as a practical question 21 here also, what we received last Saturday actually are five or 22 six -- I'll call them close-to-final transcripts, drafts of 23 prison calls, of telephone calls. And I'm not sure as I stand 24 here -- I'm sure the government will direct me -- is that when 25 was it that we got the last version of the prison visits? And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4236 47LLSAT6 1 can we treat those as final? 2 MS. BAKER: Your Honor, I can't supply a precise date 3 as I stand here. My educated guess or best recollection is 4 that it was -- well, they weren't all provided at the same 5 time. Different visits were provided on different dates. 6 Perhaps most recently in -- on dates in May. And as I've said 7 now several times, I'm not going to say what you have is 8 literally exactly final. But we don't expect any substantive 9 changes between those last drafts and what you're getting now. 10 Formatting is cleaned up, they will look different on the page, 11 they'll have line numbers, punctuation will be corrected, 12 spelling will be corrected. But I don't expect that new and 13 different sentences of text are going to appear between the 14 last ones that you got in about May and what will be final. 15 MR. RUHNKE: May I just inquire through the Court 16 whether the government intends to remove any of the content 17 that's now in the draft by shortening them up or deleting 18 matters? 19 MS. BAKER: As I am quite confident I have repeatedly 20 said, it is the government's intention to offer -- putting 21 aside the resolution of this issue that the defendants want 22 absolutely everything in -- the government's plan was, and 23 until we know more remains, to offer the entireties of the 24 minimized and redacted transcripts. That means the entireties 25 of what you received most recently, in about May, once SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4237 47LLSAT6 1 finalized. 2 THE COURT: All right. There's nothing further I can 3 do on this 1700 series at this point. 4 1015. 5 MS. BAKER: Oh, I'm sorry, your Honor, we did have one 6 request of the Court that relates peripherally -- no, it 7 relates directly -- to the prison visit recordings. And that 8 is, this morning when Mr. Morvillo had Agent Bartholmey on the 9 stand and then offered the prison visit recordings based on the 10 additional testimony provided by the agent, Mr. Tigar, in the 11 presence of the jury, objected or gave whatever response he 12 gave and stated in the presence of the jury that the defense 13 seeks the admission of the entireties of the visits. Mr. Tigar 14 was aware prior to making that statement that that was the 15 statement that we on the trial team really couldn't squarely 16 address because we haven't had access to that material. So it 17 puts us in a very unfair position in front of the jury to be 18 seen as affirmatively opposing something when, in fact, we are, 19 for perfectly valid legal reasons, not able to take a position. 20 And that was analogous to the situation earlier in the 21 trial where Mr. Tigar, in the presence of the jury, called for 22 a disclosure of the FISA court orders, knowing that your Honor 23 had already denied disclosure of them and knowing that they 24 were classified. 25 And we would request that your Honor instruct SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4238 47LLSAT6 1 Mr. Tigar not to make those kinds of objections or raise those 2 kinds of issues in the presence of the jury where there are 3 legal reasons why there are certain matters that the jury can't 4 know or certain issues that the government is just not in a 5 position to respond to fairly in the presence of the jury 6 because it is simply unfair to us to make it seem like there is 7 something that we are withholding from the jury when, in fact, 8 there is a valid legal reason for us proceeding in the way that 9 we are proceeding. 10 MR. TIGAR: Two issues are raised by this comment: 11 Government counsel in the presence of the jury offered an 12 exhibit for a limited purpose. I said, I have no objection to 13 it, but without the limitation. That's all I said, knowing 14 that the Court had previously said I'm going to reserve on 15 this. But I certainly did not -- if the government didn't want 16 anything said about this, they didn't need to make an offer in 17 the presence of the jury. 18 We've had this issue before, about these limited 19 offers and so forth and so on. And given the fact that what 20 Mr. Herold had done and these others had to know, established 21 all the preconditions for admissibility in terms of 22 authenticity, I'm certainly entitled to state my position. 23 Now, with respect to the other issue, I know that the 24 Court had denied me access to the FISA warrant -- I knew 25 that -- with respect to my motion to suppress the evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4239 47LLSAT6 1 But I'm entitled, your Honor, to cross-examine the witnesses. 2 And I'll go further. "Court-ordered surveillance", 3 "court-ordered surveillance", "court-ordered surveillance" -- 4 I'm having somebody count the number of times the government 5 has said that on this record, knowing that I've never seen the 6 Court order. 7 Mr. Kerns was asked, What would happen to you if you 8 altered a file? And he said, Oh, I would be fired and then I 9 would be prosecuted. That's entombing him in his own 10 credibility, knowing, as he does, the systematic violation of 11 the FISA orders as shown as Exhibit A in our September filing 12 has never resulted in the prosecution of anybody; knowing, as 13 he does, that the violation of the FISA orders, three times in 14 this case, including an unauthorized videotaping which has yet 15 to be explained, has not resulted in the prosecution of anybody 16 or the firing of anybody or the disciplining of anybody. 17 And if your Honor please, therefore, I don't think I 18 did anything improper. If I did, please, order me and I'll try 19 not to do it again. But I certainly resent the implication 20 about the Court order business when the government's been 21 riding that horse all the time and from the beginning. And in 22 a case in which my client faces two felonies and maybe a third 23 because she allegedly didn't obey a letter from a prosecutor. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4240 47LSSAT7 1 THE COURT: I have set out the standards with respect 2 to that and explained them several times with respect to the 3 issue of the FISA order and that is not before me now. The 4 issue is was there anything that requires an instruction with 5 respect to the government offers, the excerpts from the 6 transcript, and the defendant says in essence no objection -- 7 object to limitation but no objection to the full report. And 8 I take it -- and I reserve on that. And I think that is just 9 fine. 10 It would require the jury to make enormous leaps to 11 read anything improper on any side from that exchange when I 12 have been reserving on lots of these exhibits. It's just not 13 reasonable to think that the jury would misconstrue the 14 exchange and so the government asks for a general instruction 15 not to -- not essentially to do anything wrong. I don't think 16 that that instruction is necessary. I take it that all sides 17 will conduct themselves with appropriate consideration for all 18 of the rules. So I don't think anything is necessary. 19 Next is -- 20 MR. MORVILLO: I don't mean to interrupt, your Honor, 21 but I just had a conversation with our lawyers in Washington. 22 They have informed me that we do in fact need to go back to the 23 Foreign Intelligence Surveillance Court. They are going to try 24 to do it expeditiously. They think they can get it done, if 25 they work through the night, maybe tomorrow, but certainly no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4241 47LSSAT7 1 later than Friday. They need my assistance, so if I might be 2 excused to take part in that conference call I think we can 3 resolve this matter shortly. 4 THE COURT: Great. 5 The next issue is 1315 and 1315C which were offered. 6 MR. TIGAR: Your Honor, the law of the case, should 7 your Honor decide to adhere to your Honor's previous rulings, 8 certainly doesn't leave me with a great deal to say. In fact, 9 nothing to say, and therefore I will say nothing. We have 10 maintained our position that authenticity has not been 11 established and there it is. 12 THE COURT: Ms. Baker. 13 MS. BAKER: I am sorry, your Honor, I was conferring 14 with Mr. Barkow and I heard Mr. Tigar refer to law of the case. 15 The government does believe that your Honor should admit both 16 1315, which is a disk made by Agent Kerns, and 1315C, which is 17 the disk with the enhanced recordings on it, based on your 18 Honor's prior rulings that Agent Kerns has established 19 sufficiently the authenticity of the recordings that he copies 20 and then Mr. Losinski's testimony authenticating the enhanced 21 recordings on 1315C. 22 THE COURT: Yes, I agree with all of that but my 23 recollection is also that unlike other recordings, the 24 testimony by Agent Kerns raised a question with respect to 1315 25 and that is why it was sent to Quantico. And the question, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4242 47LSSAT7 1 whatever the question was, was then resolved by Mr. Losinski 2 who actually listened to 1315 and prepared the enhanced copy 3 of1315, which is 1315C. 4 MS. BAKER: Your Honor, as I understood Agent Kerns' 5 testimony, and of course on the threshold question of 6 admissibility it's your Honor's interpretation of it that 7 controls, but I understood Agent Kerns to be saying that he was 8 aware that there was a tone that was present in some of the 9 recordings and that it was his understanding or belief that 10 that might have been what caused the system to keep shutting 11 off and break the one long call into 12 or 13 separate 12 segments. 13 THE COURT: Right. 14 MS. BAKER: And so Mr. Losinski in enhancing the 15 recordings did what he could to compensate for the tone so it 16 would be less disruptive in listening. That doesn't change the 17 fact that there are still 12 or 13 separate audio files where 18 there are gaps ranging from zero seconds to maybe about 4 19 seconds. But, again, as to those gaps in the sense it really 20 is one long call, the the Second Circuit case law about 21 portions of inaudibility not defeating admissibility we submit 22 addresses that. 23 MR. TIGAR: If your Honor is to rely on that Second 24 Circuit case law and, as I say, your Honor cited it and 25 discussed it, we would ask that the calls, which are really one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4243 47LSSAT7 1 call, be presented as a single call with inaudibility mentioned 2 rather than as a series of allegedly discrete events. So that 3 the form of presentation fairly reflects the mechanical 4 failures of the system. 5 MS. BAKER: Your Honor, it is the government's 6 intention -- well, let me start by saying as to any call, even 7 calls that were fully recorded in their entirety in one audio 8 file, which is generally the case, the government has been 9 offering certain calls in their entireties and certain calls 10 excerpted. I don't know as I stand here right now whether 11 ultimately the government would choose to offer the entirety of 12 the one call, which is recorded in the various separate 13 segments, or whether the government might prefer to use an 14 excerpted transcript, but the jury already has the evidence 15 that one call was recorded in 12 or 13 separate segments. That 16 was explicit in Agent Kerns' testimony earlier today and the 17 government is not going to do anything to hide that fact and 18 the government does anticipate using all or portions of many of 19 those segments, if not all 12 or 13 of them, and the 20 transcripts of the later segments the way we have seen them 21 done up to this point actually indicate on their first line 22 that it's a continued conversation. So obviously the 23 government wouldn't do anything to hide the fact that it's 24 multiple recordings of the same call. 25 THE COURT: But it's perfectly reasonable if it's one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4244 47LSSAT7 1 call and there is a defense request that the entire call be 2 played, since the jury determines ultimately reliability, to 3 listen to the whole call so that people can argue over the 4 issue of reliability. Unless I am missing something. Once 5 1315 and 1315C are in evidence and the defense says we want the 6 whole call to be played so the jury can assess reliability for 7 the second separate call and the defendants done object to the 8 remaining segments, I don't see why the whole call won't be 9 played. Bar. 10 MS. BAKER: If that is Mr. Tigar's request we will 11 look at the call. Unless there is something in there that is 12 prejudicial I think that is fine. I was only trying to make 13 the point that generally we have been seeking to offer calls 14 through excerpting and -- 15 MR. TIGAR: Your Honor, I am putting something up on 16 the screen that I think indicates what I am looking for. This 17 is 1148X, your Honor. You see where it says technical 18 problems, I was just suggesting that the government do that 19 again. 20 MS. BAKER: Your Honor, I don't know that is the same 21 issue. When Ms. Banout, one of the translators, testified, she 22 explained what she meant by the phrase technical problems. 23 It's the translators who put those bracketed references to 24 technical problems in the calls, in the transcripts, when they 25 hear some type of interference or static or whatever. And in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4245 47LSSAT7 1 the transcripts of the segments of the call on Government 2 Exhibit 1315 and 1315C, if the translators heard things like 3 that, it will be in the segments of the call. Moreover, the 4 call can certainly be played for the jury and the jury can hear 5 whatever -- 6 THE COURT: Is this English or a foreign language? 7 MS. BAKER: It's foreign language, and so there will 8 be transcripts and we do expect -- the transcripts -- some or 9 all of which have been produced at least in draft, I believe 10 some of the segments have already been produced as final, the 11 transcripts indicate in some instances where the translators 12 heard it that there are technical problems or that there are 13 portions that are unintelligible and we expect that the 14 transcripts of all of the segments will be prepared in similar 15 fashion. 16 THE COURT: Well, look, unless I hear a well-founded 17 objection based upon the evidence and the arguments of counsel, 18 1315 and 1315C are received in evidence for the reasons that I 19 have explained, and the defense wants all of the call to be 20 placed in and not part of it, so unless the parties agree 21 otherwise all of the segments should go in. 22 Similarly, so much of the actual recording as to show 23 the jury what the witnesses were talking about in terms of the 24 segments and the tone. 25 MR. TIGAR: Your Honor, we will be diligent about when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4246 47LSSAT7 1 saying something when transcripts arise. The transcripts come 2 to us, so as things are offered we will follow up on the 3 court's order. I take it that the court's order is as to 4 authenticity and that we reserve, as before, these questions of 5 hearsay, limiting instruction and so on, context questions. 6 THE COURT: Yes. 7 MR. TIGAR: Thank you. 8 MS. BAKER: Your Honor, I want the court to understand 9 we believe in fairness to the government that the technical 10 problems, for lack of a better phrase, with those particular 11 calls are not present in the other calls that the government is 12 offering and we don't want the playing of that call in segments 13 to be viewed by the jury that that call is representative of 14 all the calls, so -- 15 THE COURT: It's clearly not. It's the only one as to 16 which there has been testimony about what was called, for want 17 of a better word, a technical problem, which resulted in a 18 whole different exhibit number and separate testimony. 19 MS. BAKER: Your Honor is right about that. It was 20 the subject of different testimony and hopefully the jury 21 appreciates that distinction. But we are going to wish to play 22 pieces of additional Arabic-language calls as we go forward so 23 that the jury will be able to determine for themselves that the 24 issues with respect to the calls on Government Exhibit 1315 do 25 not affect the vast majority of the calls in the case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4247 47LSSAT7 1 THE COURT: I encouraged you to do that the other day. 2 It's up to you, but in order to introduce the calls before you 3 go immediately into transcripts so that the jury would hear 4 what is actually on the call but, again, that is up to the 5 parties. 6 That leads me then to the next issue before we get to 7 1015. 8 The government had offered a chart, if you will, and I 9 don't know how defense counsel feels about it, but it would be 10 very useful to me to have the chart as to the master exhibit 11 that is received in evidence and then the sub exhibits, 12 transcripts, excerpts that are contained on the master exhibit. 13 I was still using today, for example, Government Exhibit -- the 14 chart with respect to the transcripts prepared by the 15 translators for the individual transcripts on Government 16 Exhibit 1000 and when I turned to the other exhibits I did not 17 have similar charts. 18 MS. BAKER: Your Honor, let me tell you the forms in 19 which we have already provided that information and if your 20 Honor doesn't view that as sufficient perhaps you can give us 21 more guidance on what you are requesting. 22 For each disk that has come in there is a 23 corresponding L exhibit, so for disk 1000 there is 1000L, for 24 1300 there is 1300L, and so on. And the L exhibit is a list of 25 each recording that is on that disk with it's Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4248 47LSSAT7 1 Exhibit number in the right-hand column. 2 Separate from that in the government's exhibit list 3 generated by our data base in which we keep track of the 4 exhibits, the data base provides each Government exhibit in 5 numerical order by its Government exhibit number and so the 6 calls and their corresponding transcripts start with 1001 and 7 continue to 1200 and something and on the exhibit list for each 8 call it will say the number which is the recording, and then 9 the number with a T which is the full verbatim transcript, and 10 then the number with the X which is the excerpted transcript, 11 and in that first entry, the entry with just the number for the 12 call, it says audio file (on GX, and then it says the disk 13 number) of call at such and such a date at such and such a 14 time. 15 So if your Honor wanted to know for a particular disk 16 which calls are on it, you would look at the L exhibit for that 17 disk. Conversely, if you had in mind a call number of an 18 individual recording and wanted to know which disk it was on, 19 if you look at our Government Exhibit list, the entry for the 20 call in the Government Exhibit list will tell you that. If 21 there is some other information that your Honor requests, if 22 you let us know. 23 THE COURT: Okay. 24 The Government Exhibit binder I have been provided, 25 does it include the updated list for all of the L numbers? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4249 47LSSAT7 1 Does the Government Exhibit binder that I have been 2 provided include the updated list of all the L numbers? The 3 updated copies of all the L numbers? 4 MS. BAKER: We will check it and ensure that it does. 5 I believe that it does. 6 THE COURT: Why don't you send me tonight the updated 7 L numbers. 8 MS. BAKER: We will do that. 9 Just so your Honor knows, there is 1000L, a 1300L, a 10 1301L, and then just this morning through Agent Kerns there is 11 now a 1315L. So it will be four separate documents, one that 12 corresponds to each of the multi-recording disks. Then there 13 is the disk 1015 but that only has one recording on it, so 14 there is no corresponding L exhibit for that disk. 15 THE COURT: Okay. Thank you. 16 Which then takes us to the long discussion that we 17 were having on 1015. 18 MR. TIGAR: Yes, your Honor. I looked at 1015 since 19 then and would the government inform us as against whom it's 20 being offered? Everybody? 21 MS. BAKER: If you would give us a minute, your Honor, 22 we are pulling it up again. 23 THE COURT: Sure. 24 MS. BAKER: Your Honor, it is offered against all 25 defendants because the significant substance of the call is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4250 47LSSAT7 1 Mr. Sattar essentially attesting to the importance of Sheikh 2 Abdel Rahman as a leader of the Islamic Group or as someone 3 whose views on Islamic Group issues are to be followed. 4 Mr. Sattar states in the call that although there was a demand 5 within the Islamic Group for an initiative, that demand for the 6 initiative was not supported. The initiative did not become a 7 widely accepted position of the group until Abdel Rahman 8 himself became a proponent of it. 9 MR. TIGAR: All I wanted to know, your Honor, was 10 against whom it was offered. Since Ms. Stewart is one, on 11 behalf of Ms. Stewart we now consent to its admission. We 12 think it is quite deliciously exculpatory. 13 THE COURT: All right. 14 Well, 1015 and 1015D have both been received in 15 evidence and the only issue was whether there were any 16 objections with respect to the content and there are not, so 17 1015 and 1015D can come in without any instructions. 18 Then where after 1015 are you going tomorrow? The 19 parties can talk about this themselves tonight. I don't have 20 to get in the middle of it unless there is some reason, unless 21 there is going to be an issue for me. And you are welcome to 22 talk among yourselves and I can see you all at 9:15 tomorrow. 23 MR. TIGAR: Your Honor, I did have one question and I 24 will phrase this in this way: Your Honor at sidebars referred 25 to communications that had been received by Mr. Fletcher. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4251 47LSSAT7 1 Are records kept of those communications, and who made 2 them? 3 THE COURT: No. 4 MR. TIGAR: I don't want to take this any further, 5 your Honor. We do have some concerns on the subject and we 6 will address a letter to the court. 7 THE COURT: Okay. 8 You know, if there is any issue -- I have told the 9 jurors if there is any issue they should raise it with Mr. 10 Fletcher and then I raise it with the parties. 11 MR. TIGAR: I know that, your Honor. Just in light of 12 the events that have transpired I have some thoughts. I simply 13 wanted to know the answer to my questions so I could address 14 the court with respect to those. 15 THE COURT: Okay. Sure. 16 Anything else? 17 MR. DEMBER: Your Honor, we do have one more issue 18 which hopefully is not as complicated as the others we are 19 dealing with today. 20 There is one last exhibit from the Abdel Rahman trial 21 that we are seeking to introduce. It was inadvertently not 22 included in the group of exhibits we offered through a 23 stipulation earlier in the case and I have discussed it with 24 defense counsel and specifically with Mr. Tigar. 25 It is, by the way, your Honor, a transcript. It's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4252 47LSSAT7 1 only a 6-page transcript of an intercepted call between Abdel 2 Rahman and two other persons. The relevant portions or the 3 most pertinent portions are found at the bottom of page 3 of 4 the transcript, which I will hand up to the court, and go to 5 the middle of page 4 in which one of the other persons is 6 reporting to Abdel Rahman about an operation against police 7 cars and tourists in Manfalut. He is reporting on the incident 8 that the "brothers" carried out. I believe from my discussions 9 with Mr. Tigar yesterday that he has no objection to the 10 authenticity of the exhibit but expressed to me at least one of 11 his concerns was its relevance. I believe it is quite 12 relevant. 13 That is our position. I provided copies to counsel as 14 well as a draft stipulation through which we could introduce 15 it. If not, we are prepared to call a former prosecutor who 16 participated in the trial and can authenticate the exhibit, but 17 I believe the only objection is to relevance and I am prepared 18 to hand up a copy to the court so your Honor can review it and 19 make that determination. It's marked as Government Exhibit 20 212, your Honor. 21 MR. TIGAR: I welcome the fact that it's tendered to 22 your Honor. Our position about trying Ms. Stewart based on 23 what happened at this 9-month trial was stated in the court's 24 rules. This conversation which is about an action by some 25 people that are not identified in a place that is not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4253 47LSSAT7 1 particularly identified, at a time that is not particularly 2 identified, seems to us, your Honor, to be of such marginal 3 utility in assessing Ms. Stewart's state of mind with respect 4 to a trial in which people talk about blowing up the United 5 Nations, that we think on waste of time grounds, if nothing 6 else, it ought to be excluded. Particularly coming as it does 7 at this procedural hour. 8 MR. DEMBER: Your Honor, if I may, I had offered this 9 to all counsel several weeks ago and it was rejected. I 10 offered it by way of offering it through a stipulation and 11 specifically Mr. Tigar rejected its admission. I then went 12 about having to find a witness who to authenticate the document 13 itself as an exhibit at the trial and I came back to him 14 actually yesterday to inform him that I have now a witness who 15 can authenticate it and that we would call that witness to the 16 stand and move this exhibit into evidence. That is why there 17 has been a delay. With respect to the fact that there is no 18 indication as to place and time, if one looks at the section 19 that I referred to, the last two pages -- the last 2 lines on 20 page 3 and it goes to the middle of page 4, if one reads it one 21 can certainly infer from the fact that the person who is 22 reporting this to Abdel Rahman is asking him if he had heard 23 about an attack that presumably had just taken place. The date 24 of the conversation, as reflected on the first page of the 25 transcript, is May 16, 1993, and with respect to Mr. Tigar's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4254 47LSSAT7 1 claim that there is no indication as to where it took place, 2 that is not correct. On the second line of page 4 it indicates 3 the operation was carried out against police cars which 4 protected the tourist in Manfalut. 5 I should also bring to your Honor's attention that I 6 believe in one of the intercepted conversations of relevant 7 conversations that we are going to offer in this case, there is 8 reference to operations at Luxor and Manfalut in a conversation 9 between either Mr. Sattar or between -- either Mr. Sattar, 10 connected persons who had the conversation or he actually 11 participated in the conversation. One of our translator 12 witnesses, Ms. Banout, indicated that Manfalut is a city in 13 Egypt. So we have established all of that already in the 14 record. But it will come up in an intercepted conversation 15 directly relevant to this case. 16 And, as I mentioned before, this was a transcript 17 which was introduced at the Abdel Rahman trial and read to the 18 jury in that case and Ms. Stewart was present when it was 19 introduced. 20 THE COURT: For what purpose would be admitted in this 21 trial? 22 MR. DEMBER: For the same purposes that all the other 23 exhibits from the Abdel Rahman trial were introduced earlier in 24 this case. This is no different. 25 THE COURT: Well, -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4255 47LSSAT7 1 MR. DEMBER: Which includes, your Honor, obviously to 2 show the state of mind of Ms. Stewart. That is clear. 3 Certainly that is one of the bases for admitting the other 4 Abdel Rahman trial exhibits in this case but it's certainly 5 relevant as it goes to her state of mind. And it certainly 6 proves, your Honor, that, one, Abdel Rahman was a leader of a 7 group in which people are report to go him on operations. It 8 is relevant because it indicates that he is essentially 9 involved, even though perhaps indirectly, in such operations. 10 And it certainly indicates that Ms. Stewart knows that people 11 who commit operations, people who are referred to by the caller 12 in this call as brothers are committing operations against 13 tourists and police. 14 THE COURT: But that -- I will review the transcript. 15 It is unlike a lot of the other evidence from the Abdel Rahman 16 trial as to which there were several different bases for 17 admission and I have gone over them at length. I will look at 18 this transcript. 19 MS. BAKER: Your Honor, if I might add one factor. 20 Your Honor admitted some of the other Abdel Rahman 21 trial exhibits for their probativeness as to the state of mind 22 of Abdel Rahman as well and your Honor has now -- and many of 23 those are Abdel Rahman's own speeches or sermons which your 24 Honor has heard. It is a theme of Abdel Rahman in his speeches 25 that where something occurs that is un-Islamic or wrong, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4256 47LSSAT7 1 there is an obligation to speak out against it. So part of the 2 significance of this call and of the reporting of the operation 3 to Abdel Rahman is that when it is reported to him he does not 4 condemn it and say that it's wrong. He accepts the report. 5 MR. TIGAR: Your Honor, I first want to apologize. 6 The dates at the bottom was indistinct on some of the pages of 7 mine, so I now understand that this apparently did take 8 place -- this call did tell us what this was. 9 We maintain our view and I think what we have just 10 heard raises a different set of issues. If this is to be 11 admitted with respect to Abdel Rahman, the conspirator here, 12 then we have to look at the fact that it's a 1993 statement and 13 not only is there a question of pendency but after that he gets 14 convicted and his lawyers are working with him and so on. It 15 gets to be somewhat remote. 16 And the second, of course, is to tell this jury or to 17 argue to this jury that by one's silence one gives consent to 18 violence, it is a very dangerous road to start out as the 19 relevance theory. I don't want to discuss this at length. You 20 know, St. Thomas Moore in his trial discussed that whole issue 21 but I am not talking about that. 22 We oppose it. 23 THE COURT: All right. 24 MS. BAKER: Your Honor, I did find already here in the 25 courtroom extra copies of each of the L exhibits corresponding SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4257 47LSSAT7 1 to the disks of recordings so I can hand those right up to the 2 court. 3 THE COURT: Okay, fine. Give them to my clerk. 4 Okay. Anything else? 5 See you tomorrow at 9:15. 6 (Trial adjourned to July 22, 2004 at 9:15 a.m.) 7 o 0 o 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 4258 1 INDEX OF EXAMINATION 2 Examination of: Page 3 BRIAN BARTHOLMEY 4 Direct By Mr. Morvillo . . . . . . . . . . . 4130 5 SCOTT KERNS (recalled) 6 Redirect By Ms. Baker . . . . . . . . . . . 4140 7 Cross By Mr. Tigar . . . . . . . . . . . . . 4149 8 Redirect By Ms. Baker . . . . . . . . . . . 4162 9 JOHN LOSINSKI 10 Direct By Ms. Baker . . . . . . . . . . . . 4163 11 Voir Dire By Mr. Tigar . . . . . . . . . . . 4165 12 Direct By Ms. Baker (cont.) . . . . . . . . 4166 13 Cross By Mr. Tigar . . . . . . . . . . . . . 4184 14 Redirect By Ms. Baker . . . . . . . . . . . 4191 15 GOVERNMENT EXHIBITS 16 Exhibit No. Received 17 1315L . . . . . . . . . . . . . . . . . . 145 18 1316 . . . . . . . . . . . . . . . . . . 48 19 1015D . . . . . . . . . . . . . . . . . 4203 20 1015D . . . . . . . . . . . . . . . . . 4216 21 1000S-2 . . . . . . . . . . . . . . . . 4217 22 1254X . . . . . . . . . . . . . . . . . 4219 23 COURT EXHIBITS 24 Exhibit No. Received 25 3 . . . . . . . . . . . . . . . . . . 4127 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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