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/

        2    ------------------------------x
        4               v.                           S1 02 Cr. 395 (JGK)
        5    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        6    and MOHAMMED YOUSRY,
        7                   Defendants.
        8    ------------------------------x
        9                                         New York, N.Y.
       10                                         July 21, 2004
       10                                         10:15 a.m.
       11    Before:
       12                          HON. JOHN G. KOELTL
       13                                            District Judge
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        1                              APPEARANCES
        2    DAVID N. KELLEY
        2         United States Attorney for the
        3         Southern District of New York
        3    ROBIN BAKER
        4    ANTHONY BARKOW
        5    ANDREW DEMBER
        5         Assistant United States Attorneys
        6    KENNETH A. PAUL
        7    BARRY M. FALLICK
        7         Attorneys for Defendant Sattar
        8    MICHAEL TIGAR
        9         Attorneys for Defendant Stewart
       10    DAVID STERN
       11    DAVID A. RUHNKE
       11         Attorneys for Defendant Yousry
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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.
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        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
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        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
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        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
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        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.
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        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
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        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.
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        1     BRIAN BARTHOLMEY,
        2         called as a witness by the Government,
        3         having been duly sworn, testified as follows:
        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?
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             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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
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        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.
       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.
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             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
             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.
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             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.
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             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
             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
             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.
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             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
             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
             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.
       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.
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             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.
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             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.
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             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.
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             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
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             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.
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        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?
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             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
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             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)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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             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.
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             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.
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             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.
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             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.
                            SOUTHERN DISTRICT REPORTERS, P.C.
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             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
             47LSSAT3                 Losinski - direct
        1         called as a witness by the Government,
        2         having been duly sworn, testified as follows:
        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
             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
             47LSSAT3                 Losinski - direct
        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
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             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
             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.
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             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.
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             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
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             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
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             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,
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             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.
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             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
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             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)
                            SOUTHERN DISTRICT REPORTERS, P.C.
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        1                   A F T E R N O O N   S E S S I O N
        2    2:00 p.m.
        3    (In open court; jury not present)
        4             THE COURT:  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)
                            SOUTHERN DISTRICT REPORTERS, P.C.
                                      (212) 805-0300
        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
        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
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             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.
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             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.
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             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.
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             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.
       24    BY MR. TIGAR:
       25    Q.  Mr. Losinski, when you started out as a signal processing
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             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.
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             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.
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             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?
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             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
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             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.
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             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?
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             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?
       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
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             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.
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        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)
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        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
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        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
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        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
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        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
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        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?
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        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?
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        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?
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        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.
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        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
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        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.
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        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.
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        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
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        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
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        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
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        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.
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        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
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        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
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        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.
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                                      (212) 805-0300
        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.
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        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
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        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
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        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.
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        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)
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        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
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        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,
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        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
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        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 --
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        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
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        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
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        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.
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        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
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        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
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        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.
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        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
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        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
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        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
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        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
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        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
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        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
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        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.
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        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)
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        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
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        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,
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        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
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        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
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        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
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        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
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        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.
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        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
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        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?
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        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
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        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.
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        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
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        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
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        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
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        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, --
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        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
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        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
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        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
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        1                          INDEX OF EXAMINATION
        2    Examination of:                               Page
        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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