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

This is the transcript of Day 27 of the proceeding and Day 18 of the trial.

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

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

        2    -------------------------------------x
        3               v.                            S1 02 Cr. 395 (JGK)
        4    AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
        5    a/k/a "Dr. Ahmed," LYNNE STEWART,
        5    and MOHAMMED YOUSRY,
        6                          Defendants.
        7    -------------------------------------x
        8                                            July 22, 2004
        8                                            9:25 a.m.
       10    Before:
       11                          HON. JOHN G. KOELTL
       12                                            District Judge
       13                              APPEARANCES
       14    DAVID N. KELLEY
       15         United States Attorney for the
       15         Southern District of New York
       16    ROBIN BAKER
       17    ANTHONY BARKOW
       17    ANDREW DEMBER
       18         Assistant United States Attorneys
       19    KENNETH A. PAUL
       19    BARRY M. FALLICK
       20         Attorneys for Defendant Sattar
       21    MICHAEL TIGAR
       22         Attorneys for Defendant Stewart
       23    DAVID STERN
       23    DAVID A. RUHNKE
       24         Attorneys for Defendant Yousry
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        1             THE COURT:  Good morning, all.  Please be seated.
        2             Just looking over the exhibits in the transcript
        3    yesterday --
        4             MR. RUHNKE:  Your Honor, could you talk into the
        5    microphone?  I'm sorry, we're having trouble hearing you.
        6             THE COURT:  I'm sorry.  Looking over the exhibits on
        7    the final page of the transcript, it indicates 1015D received
        8    yesterday.  1015 itself had previously been received, right?
        9             MR. TIGAR:  That's my understanding, yes, your Honor.
       10    That was the original offer.
       11             THE COURT:  Okay.  The only outstanding issue I left
       12    yesterday was Government Exhibit 212, and I'll sustain the
       13    objection to Government Exhibit 212.
       14             MR. DEMBER:  Your Honor, may I just make a couple of
       15    points with respect to that exhibit?
       16             THE COURT:  Sure.
       17             MR. DEMBER:  It's not coming in today, so....
       18             But if I may, your Honor, the point I made yesterday,
       19    that this exhibit seemed to be different than others that were
       20    introduced from the Abdel Rahman trial.  And what we believe
       21    distinguishes this one from the others is that most of the
       22    others consist of speeches where Abdel Rahman preaches
       23    violence.  The other intercepted calls have tidbits of
       24    information in which he's referred to as the leader of the
       25    Group, and there's also one in which he is asked about the
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        1    propriety of Taurus coming to Egypt and whether there's a
        2    guarantee of safety or not from this Taurus.
        3             This is different, your Honor.  Obviously he's engaged
        4    in a conversation with someone who is reporting to him what
        5    apparently is a terrorist attack which occurred shortly before
        6    that conversation which from the transcript appears not to have
        7    been reported publicly because there's a reference in the
        8    transcript to it being a secret matter that was not reported
        9    apparently by the government or the media.
       10             And what distinguishes this, your Honor, in our view
       11    is that it not only shows, proves Miss Stewart's knowledge that
       12    Abdel Rahman preaches violence, but that he is associated with
       13    people who engage in violence.  The conversation, which isn't
       14    very long, talks about this terrorist attack refers to the
       15    brothers, Abdel Rahman is informed about what happened.  At the
       16    end of it he makes a comment like, May God guide your way for
       17    the best.
       18             And what we think it clearly demonstrates is, in this
       19    case, is that Ms. Stewart knows that Abdel Rahman is associated
       20    with people who will engage in terrorist acts.  That is
       21    extremely relevant to Count 5 of this indictment, the material
       22    support charge where one of the elements we have to prove is
       23    that -- is that Miss Stewart acted with knowledge or intent;
       24    that the support that she was providing Abdel Rahman, as a
       25    coconspirator, was going to be used in preparation for or to
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        1    carry out a conspiracy to kill or kidnap persons outside the
        2    United States.  And what this demonstrates is that she has
        3    knowledge, that she's associated with people who will do that
        4    more directly than his mere preachings that have been
        5    introduced into evidence.
        6             We submit, your Honor, it is far more direct proof of
        7    knowledge that than other forms of proof we've introduced that
        8    only goes to knowledge, in the case of the Sattar search
        9    evidence, and other documents we've produced into evidence that
       10    Mr. Sattar was in possession of, and his possession of it will
       11    be argued by the government to prove that he had knowledge of
       12    the contents of those documents with respect to this particular
       13    exhibit, 212.  This was an exhibit introduced at Abdel Rahman's
       14    trial.  We will prove that it was read in open court and that
       15    Miss Stewart heard it.  So it's not merely something that she
       16    was in possession of; it's something she heard and knew.
       17             Finally, your Honor, with respect to argument raised
       18    by Mr. Tigar yesterday about back in 1993, I would just remind
       19    the Court that all the intercepted calls were intercepted in
       20    1993.  That the speeches that were introduced from the Abdel
       21    Rahman trial occurred in 1993 or beforehand because he was
       22    arrested and in custody from 1993 on.  For those reasons your
       23    Honor, we think it's direct proof and should be admitted.
       24             THE COURT:  I'm always happy to listen to argument and
       25    will listen again to the defendants.  There is among other
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        1    things, as you correctly point out, a distinction between
        2    speeches and statements by Abdel Rahman who, among other
        3    things, is alleged to be, in this case, a coconspirator; whose
        4    knowledge, intent and state of mind is itself at issue.  And
        5    when the parties have put at issue the meaning of statements by
        6    Omar Abdel Rahman, that is a different question from the
        7    statements by a Mohammed "last name unknown" in 1993 to Abdel
        8    Rahman to show Abdel Rahman's state of mind or Miss Stewart's
        9    state of mind having heard the conversation.  You don't want me
       10    to rule on it today, okay, I won't rule on it today.  And I'll
       11    listen to whatever the defendants want to tell me about
       12    government Exhibit 212.
       13             Do you want to tell me now?
       14             MR. TIGAR:  Well, your Honor, it is 20 minutes to
       15    10:00.  If the Court felt it would be more convenient to
       16    reserve on this, I certainly would like the opportunity to
       17    respond.
       18             THE COURT:  That's fine.
       19             MR. TIGAR:  But I think we have some jurors waiting.
       20             THE COURT:  Good.
       21             MR. TIGAR:  And I will be just as happy to do it after
       22    the jurors have left for today.  Because we're only getting a
       23    half day anyway.
       24             THE COURT:  That's fine.  Okay.
       25             Where are we then when we bring in the jurors?
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        1             MR. BARKOW:  Your Honor, at this point I think we had
        2    gotten up to the point where we were going to play for the jury
        3    with accompanying English transcripts as aids government
        4    Exhibits 1015X, 1245X, 1246X, and 1247X.  All of those are in
        5    English.
        6             And then there is a series of calls in Arabic.
        7             THE COURT:  I'm sorry, 1015 is --
        8             MR. BARKOW:  1015.
        9             THE COURT:  Is in Arabic.
       10             MR. BARKOW:  The first four are in English.  1015X,
       11    1245X, 1246X, 1247X, are all in English.
       12             And then there's a series of Arabic calls, 1018X,
       13    1019X, 1020X, 1021X.  So those four are in Arabic.  I'm pretty
       14    confident that will take us at least to a break but I can keep
       15    going if the Court wants to know the plan after that.
       16             THE COURT:  All right.
       17             MR. BARKOW:  Should I keep going?
       18             THE COURT:  That's all right if that's going to take
       19    us to a break.
       20             MR. FALLICK:  Your Honor will remind the jury that the
       21    English transcripts are limited --
       22             THE COURT:  I'll remind them at the beginning of the
       23    morning about the instructions that I've given them with
       24    respect to transcripts, both English and Arabic.
       25             And -- okay.  The Arabic transcripts have been the
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        1    subject of a stipulation which has already been read.
        2             MR. BARKOW:  Yes, your Honor.  Those were subject to
        3    the stipulation Ms. Baker read yesterday, which I think is
        4    1000S-2, although I'm not sure that these "X" exhibits have
        5    been admitted into evidence, and so as we get to each one, I
        6    guess we could offer into evidence, just to confirm --
        7             THE COURT:  On the basis of the stipulation.
        8             MR. BARKOW:  That stipulation and the other
        9    stipulations related to voice attributions and etc.
       10             THE COURT:  Why don't you do that at the beginning of
       11    the four transcripts so you don't have to do it repeatedly,
       12    1018 through 1021.
       13             MR. BARKOW:  Okay.
       14             Let's bring in the jury.
       15             MR. RUHNKE:  Your Honor, I need to retrieve something
       16    upstairs, no reason to delay things.  I'll be back in two
       17    minutes.  I may beat the jury back or I may not.
       18             THE COURT:  Okay, that's fine.
       19               (Jury entering)
       20               (In open court)
       21             THE COURT:  Please be seated, all.  Good morning,
       22    ladies and gentlemen.
       23             JURORS:  Good morning.
       24             THE COURT:  Good to see you all.
       25             All right.  Ladies and gentlemen, a preliminary
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        1    instruction for you:  I understand that today there'll be
        2    recordings and transcripts which will be played and read for
        3    you.  Some of the recordings are in English, and I've given you
        4    an instruction with respect to transcripts of recordings that
        5    are in English.  And you're to apply that instruction here.
        6             Very briefly, as I told you, the transcripts of
        7    English conversations are provided to you as an aid to you in
        8    listening to the recordings, to assist you in listening to the
        9    recordings which are in evidence.  The typed documents are not
       10    in and of themselves evidence.  When the recordings are played,
       11    you should listen very carefully to the recordings themselves.
       12    You should make your own determination of what appears on the
       13    recordings based on what you've heard.  If you think you hear
       14    something differently from what appears on the transcript, then
       15    what you hear is controlling.  You, the jury, are the sole
       16    judges of the facts.
       17             With respect to the transcripts of Arabic
       18    conversations, the transcripts or portions of the transcripts
       19    of the conversations that are in Arabic embody the testimony of
       20    the Arabic translators as to what appears in the recordings.
       21    These transcripts are admitted into evidence.
       22             To the extent that you accept or reject the testimony
       23    of the witnesses, the translators, you may accept or reject the
       24    transcripts themselves of the Arabic conversation.  Remember
       25    that the jury is the ultimate fact-finder and, as with all
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        1    evidence, you may give the transcripts such weight, if any, as
        2    you believe they deserve.
        3             Again, you are to apply those instructions for the
        4    transcripts that are provided to you today.  And those same
        5    instructions will apply to other transcripts in the course of
        6    the case.  I just remind you about those instructions, and I
        7    will not be repeating them before each transcript is given to
        8    you.  But you are to apply them to each of the transcripts.
        9             All right?
       10             MR. BARKOW:  Your Honor, before we begin with the
       11    playing and reading of calls, we'd like to offer into evidence
       12    Government Exhibits 1018X, 1019X, 1020X and 1021X.
       13             THE COURT:  All right.  No objections to the
       14    transcripts?  They're received in evidence.
       15             (Government's Exhibits 1018X, 1019X, 1020X, 1021X
       16    received in evidence)
       17             MR. BARKOW:  And at this point, your Honor, we'd
       18    request permission to play for the jury Government Exhibit -- a
       19    small portion of Government Exhibit 1015, which is the
       20    unenhanced recording, and then play the entirety of government
       21    Exhibit 1015D, which is the enhanced recording.
       22             THE COURT:  All right.
       23             MR. BARKOW:  And at the same time, may we display the
       24    transcript on the screen for the jury?
       25             THE COURT:  All right.
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        1             MR. BARKOW:  And your Honor, if the jury could be
        2    asked to place their headphones.
        3             THE COURT:  Yes.  Ladies and gentlemen, if you would
        4    put your headphones on.  Dot out; dot facing out.  And turn the
        5    headphones on.
        6             (At this point, Government Exhibits 1015X and 1015, in
        7    evidence, were displayed and played for the jury).
        8             THE COURT:  One moment.  One juror is having a problem
        9    with the headphone.  Hold on.  Okay?
       10             MR. MORVILLO:  Your Honor, may we play a little more
       11    just to test out the headset?
       12             THE COURT:  Yes, sure.
       13             MR. BARKOW:  Your Honor, the computer restarts from
       14    the beginning.
       15             (At this point, Government Exhibits 1015 and 1015X, in
       16    evidence, were displayed and played for the jury).
       17             MR. BARKOW:  Your Honor, may we now switch and play
       18    1015D, the enhanced recording, to the jury?
       19             THE COURT:  Yes.
       20             MR. BARKOW:  It will take just a second to set up.
       21             THE COURT:  All right.
       22             (At this point, Government Exhibit 1015D, in evidence,
       23    was played for the jury)
       24             MR. BARKOW:  Your Honor, at this point we would
       25    request permission to play for the jury Government
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        1    Exhibit 1245, and to display on the screen, the transcript on
        2    the screen, while we play it.
        3             THE COURT:  Okay.
        4             MR. BARKOW:  This is a call from June 1st, 1999,
        5    12:37 p.m.
        6             THE COURT:  All right, ladies and gentlemen, you'll
        7    have to put your earphones on.
        8             (At this point, Government Exhibit 1245X, in evidence,
        9    was displayed to the jury).
       10             MR. BARKOW:  Using a transcript as an aid, we'd like
       11    to play for the jury Government Exhibit 1246.
       12             THE COURT:  All right.
       13             MR. BARKOW:  This is a call from June 1st, 1999,
       14    1:07 p.m.
       15             THE COURT:  All right.
       16             (At this point, Government Exhibit 1246, in evidence,
       17    was played for the jury).
       18             MR. BARKOW:  Your Honor, at this point the government
       19    requests permission to play for the jury, with a transcript as
       20    an aid, Government Exhibit 1247, which is a call from June 11,
       21    1999, 4:21 p.m.
       22             THE COURT:  All right.
       23             (At this point, Government Exhibits 1247 and 1247X, in
       24    evidence, were displayed and played for the jury)
       25             MR. BARKOW:  Your Honor, at this point the government
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        1    requests permission to play to the jury the beginning of
        2    Government Exhibit 1018, which is in Arabic, and then read the
        3    transcript to the jury.
        4             THE COURT:  All right.
        5             MR. BARKOW:  This is a call, your Honor, on July 2nd
        6    of 1999 at 4:13 p.m.
        7             THE COURT:  All right.
        8             (At this point, Government Exhibit 1018, in evidence,
        9    was played for the jury)
       10               (Continued on next page)
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        1             MR. BARKOW:  Your Honor, at this point may Mr. Forkner
        2    go to the witness stand to read the lines attributed to
        3    Mr. Sattar?
        4             THE COURT:  Yes.
        5             Ladies and gentlemen, you can take the earphones off
        6    and remember to turn them off right now to save the batteries.
        7             MR. BARKOW:  Your Honor, this is a call on July 2, '99
        8    at 4:13 p.m.  Mr. Forkner will be reading the lines of
        9    Mr. Sattar and I will be reading the lines of Yassir al-Sirri.
       10             THE COURT:  All right.
       11             MR. BARKOW:  May we proceed?
       12             THE COURT:  Yes.
       13             (At this point, Government Exhibit 1018X in evidence
       14    was read to the jury)
       15             THE COURT:  All right.
       16             This would be a convenient time for us to take our
       17    mid-morning break.
       18             We will break for ten minutes.
       19             Ladies and gentlemen, please remember my instructions
       20    not to talk about the case and keep an open mind.
       21             All rise please.
       22             Please follow Mr. Fletcher.
       23             (Jury left the courtroom)
       24             THE COURT:  All right, we will take ten minutes.
       25             (Recess)  (PAGES 4272-4280 SEALED)
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        1               (In open court)
        2             THE COURT:  All right, let's bring in the jury.
        3               (Jury entering courtroom)
        4             THE COURT:  Please be seated, all.
        5             All right.  We are continuing with the transcript?
        6             MR. DEMBER:  Yes, your Honor.  With your permission,
        7    at this time we'd like to read and display for the jury
        8    Exhibit 1019X.  It is a transcript of a conversation which
        9    occurred on August 9th, 1999 at 12:40 p.m.  I will read the
       10    part of Mohammed Al-Shafi'i, and Mr. Forkner will read the part
       11    of Ahmed Abdel Sattar.  May we display it to the jury?
       12             THE COURT:  Yes.
       13             (At this point, Government Exhibit 1019X, in evidence,
       14    was displayed and read to the jury)
       15             MR. BARKOW:  Your Honor, at this point we would
       16    request permission to publish to the jury the transcript of
       17    Government Exhibit 1020X and read that.
       18             THE COURT:  All right.
       19             MR. BARKOW:  Your Honor, this is a call on August 9th,
       20    1999 at 7:28 p.m.   Mr. Forkner will be reading the lines of
       21    Ahmed Abdel Sattar, and I'll be reading the lines of Yassir
       22    Al-Sirri.  May we proceed?
       23             THE COURT:  Yes.
       24             (At this point, Government Exhibit 1020X, in evidence,
       25    was displayed and read to the jury)
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        1             MR. MORVILLO:  Your Honor at this time the government
        2    would read and publish to the jury Exhibit 1021X.
        3             THE COURT:  All right.
        4             MR. MORVILLO:  It's a call, for the record, of
        5    August 9th, 1999.  Mr. Forkner will read the attributions to
        6    Mr. Sattar, and I will read the attributions to the
        7    unidentified male.
        8             THE COURT:  All right.
        9             (At this point, Government Exhibit 1021X, in evidence,
       10    was displayed and read to the jury)
       11               (Continued on next page)
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        1             THE COURT:  That takes us to about 12:11.
        2             MR. BARKOW:  The next one is much longer, your Honor.
        3             THE COURT:  So we will break for the day.
        4             Ladies and gentlemen, we will break for the day and we
        5    are breaking obviously for the weekend and we will resume at
        6    9:30 on Monday morning and so I often emphasize my instructions
        7    even more even though they apply all the time.  Just because
        8    there is a little more time over the weekend, I want to
        9    reiterate for all of you my continuing instructions.
       10             Please don't look at or listen to anything to do with
       11    the case.  If you should see or hear something inadvertently
       12    simply turn away.  Please remember not to talk about the case
       13    or anything to do with it among yourselves or with anyone when
       14    you go home.
       15             Remember always to keep an open mind until you have
       16    heard all of the evidence, I have instructed you on the law,
       17    and you have gone to the jury room to begin your deliberations.
       18    Fairness and justice to the parties requires that you do that.
       19             With that, have a very good weekend and I look forward
       20    very much to seeing you next week.
       21             All rise please.
       22             Please follow Mr. Fletcher into the jury room.
       23             (Jury left the courtroom)
       24             THE COURT:  Please be seated all.
       25             There was Government Exhibit 212.
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        1             MR. TIGAR:  Yes, your Honor, I had a chance to look
        2    back at the record and we respectfully submit that your Honor's
        3    ruling this morning was correct.
        4             THE COURT:  I hadn't ruled yet.
        5             MR. TIGAR:  You said it was excluded when we started
        6    this morning.
        7             THE COURT:  You are right, I hadn't given my
        8    explanation.  I said I would sustain the objection and the
        9    government asked to be heard --
       10             MR. TIGAR:  I am not trying to derive an undue
       11    advantage, your Honor.
       12             THE COURT:  No, that is all right.  You are correct.
       13             MR. TIGAR:  The relevance of this evidence when it was
       14    first offered or discussed in open court on the 24th of June
       15    was that it was introduced at the trial of Sheikh Omar Abdel
       16    Rahman and that Lynne Stewart heard it.  And, indeed, that was
       17    the text of a stipulation that was entered into with respect to
       18    the sermons and the telephone calls.
       19             The telephone calls in question include not only 212,
       20    which is now offered, but 207, 208, 209, 210 and 211, I
       21    believe.  208 and 209 were published to the jury on the 30th of
       22    June.  Now there seems to be some argument about additional
       23    relevance but these calls are from 1993 and so they are outside
       24    the charged conspiracy period.
       25             There are hearsay issues with respect at least to the
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        1    speakers who are not Sheikh Omar Abdel Rahman and with respect
        2    to their estimates, but it is said that it's not offered for
        3    the truth.
        4             We have, therefore, some relevance issues, some
        5    hearsay issues in addition to the relevance issues that we
        6    raised that said that all of this evidence from the sheikh's
        7    trial should be excluded.
        8             So that is the context.
        9             Now, this morning Mr. Dember said that the
       10    significance is, one, that Mr. Mohammed, whoever that might
       11    be -- and there are a great many Muslims named Mohammed -- is
       12    recognizing Sheikh Omar Abdel Rahman as a leader because he is
       13    calling him to report something that the Egyptian press or
       14    Egyptian government didn't want reported; that he is calling
       15    him to report something about an attack on a tourist bus, more
       16    precisely and accurately on the police that were protecting the
       17    tourist bus because Abdel Rahman asked were any tourists
       18    injured, and then there is some reference to the fact that the
       19    city where this took place is a city that has also been
       20    mentioned by somebody.
       21             What have we already had about that?  Well, we had
       22    Government Exhibit 14, which is Ms. Stewart's signed statement
       23    about which Mr. Fitzgerald testified at great length in which
       24    Ms. Stewart says "I understand that terrorist actions have been
       25    carried out by persons using his name subsequent to his
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        1    conviction," which is, after all, the relevant time period, not
        2    1993.  And she understands that and she writes it and Mr.
        3    Fitzgerald talks about it.
        4             Mr. Fitzgerald also said that Sheikh Abdel Rahman, to
        5    his knowledge, had not denounced the Luxor attack.  We had a
        6    lot of testimony about that.  So we are getting to the 403
        7    issue here.
        8             In addition to that, if we look at 208T, which is in
        9    evidence and has been published to the jury, here are all these
       10    references to the brothers in Egypt and Mohammed, whoever that
       11    is, we don't know if it's the same one, saying that they are
       12    arresting the brothers.  They dropped them off on the streets
       13    where they arrested and killed them.  There were some brothers
       14    in Aswan.  There was an attack on a mosque, and so forth and so
       15    on.
       16             Then when we turn to 209T, which, as I say, I believe
       17    was read to the jury, there is precisely a discussion of the
       18    circumstances under which Abdel Rahman believes that it either
       19    is or isn't justified to attack tourist sites.  And it's pretty
       20    clear that this is not a report.  The jury has heard him saying
       21    that if we were going to kill tourists there would be 1000 dead
       22    tourists.  As it happened, we have not been attacking tourists,
       23    civilians, we have been going after police.
       24             Now, that is not to say that it's justified to do that
       25    or not justified or whatever.  But the issue has been amply
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        1    covered in the very exhibits that have already been published
        2    to the jury and there are three more telephone calls in
        3    evidence that have not already been published to the jury.
        4             So given the relatively marginal relevance, given the
        5    hearsay issues, there certainly is 403 territory here.  And,
        6    also -- and I am going to say a thing that is likely to be
        7    least convincing to your Honor about this but which is
        8    important to us, and that is I wrote the court a letter about
        9    the McDermott case and our view of limiting instructions, and
       10    our view of this is that when the evidence is already offered
       11    for a special purpose, because Lynne Stewart heard it, and when
       12    it has problems in it about hearsay and not for the truth, that
       13    because it relates, as this does, to 1993 views of Sheikh Omar
       14    Abdel Rahman which are arguably not connected, not sufficiently
       15    relevant to be connected to the charged conspiracies, that this
       16    is the sort of thing in which the limiting instructions, such
       17    as they be, have the least power because of the very thing that
       18    Judge Oakes was talking about in McDermott.
       19             The killing of tourists, the killing of civilians, is
       20    hot stuff.  It's like Mr. Pomponio's testimony that was what
       21    was at issue in McDermott.  And I don't rely on that case for
       22    all of its holding but it seems to us that we get to the margin
       23    and when we get to the margin of the efficacy of limiting
       24    instructions, we then are in 403 territory if I am making
       25    myself clear.
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        1             That was the purpose of my singling out the part of
        2    Justice Souter's opinion in Old Chief that seemed to support
        3    that view and contrasting it with Justice Scalia's view and
        4    dissent who said, "What's the problem here, why not a Rule 105
        5    limiting instruction?"
        6             And without in the least attacking your Honor's
        7    general view about limiting instructions, which I am not doing,
        8    it seems to me that what your Honor started the day with was a
        9    correct view, a view that is now, in my opinion, sustained by a
       10    careful review of what the jury already has.
       11             THE COURT:  All right.
       12             MR. DEMBER:  May I, your Honor?
       13             THE COURT:  Sure.
       14             MR. DEMBER:  Your Honor, it seems as if Mr. Tigar may
       15    be operating under a false premise.  All the previous Abdel
       16    Rahman speeches introduced at his trial, and the intercepted
       17    calls intercepted and introduced at this trial, were offered
       18    and introduced with no limiting instructions whatsoever for
       19    this jury.  They obviously could consider it to establish Ms.
       20    Stewart's knowledge and for Abdel Rahman's intent which
       21    obviously is quite relevant in this case.
       22             THE COURT:  But that argument actually supports the
       23    defendants' argument that there is less basis in terms of the
       24    cumulative nature of this exhibit to introduce it.
       25             MR. DEMBER:  Except, your Honor, unlike those other
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        1    intercepted calls, the intercepted calls separately from the
        2    speeches, very few of them speak directly to the kind of
        3    conduct that is discussed in this particular conversation which
        4    goes to the very heart of our case, which is the use of
        5    violence and merely the actual use of violence, which is
        6    advocated by Abdel Rahman.  This particular exhibit speaks
        7    directly to that.
        8             I would disagree with Mr. Tigar's characterization of
        9    Government Exhibit 208, which is I would think the conversation
       10    in which a female caller presses Abdel Rahman on whether there
       11    is some type of covenant that is owed to tourists, foreign
       12    tourists who come to Egypt, that they be allowed to remain in
       13    the country safety.  And Abdel Rahman refuses to concede there
       14    is such a guarantee or a promise to such tourists.  And there
       15    is a reference to particularly one, it's not named where that
       16    particular incident occurred, where I believe one British
       17    subject, a citizen, was killed.  Abdel Rahman says if our
       18    intent was to kill more we would have killed more at that time.
       19    But there is reference to a particular incident.
       20             This is quite different.  This is a conversation that
       21    speaks specifically and directly to a particular incident,
       22    unlike any other speech or intercepted call that was introduced
       23    from the Abdel Rahman trial.  The other ones are the speeches
       24    talking in generalities and he is preaching.  He doesn't speak
       25    of specific incidents other than making references to the
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        1    murder of Anwar Sadat perhaps, and the other intercepted calls
        2    talk vaguely about -- very few of them actually talk
        3    specifically about terrorist acts or uses of violence.
        4             With respect to the fact that this is a call that not
        5    only reflects or is offered to prove Ms. Stewart's knowledge
        6    and intent, unlike the letter, the Exhibit 14, which is in
        7    evidence, which is the letter and the accompanying documents
        8    that were sent to Ms. Stewart by Mr. Fitzgerald, this is
        9    knowledge that predates 2000.  This is knowledge she has and
       10    she had, yes, during the course of that trial, Abdel Rahman's
       11    trial which occurred in 1995, which is perhaps the first
       12    opportunity she has to gain knowledge of Abdel Rahman, his
       13    views, and his dealings with others.  We disagree there is with
       14    respect to this particular exhibit -- there no hearsay, your
       15    Honor.
       16             Abdel Rahman is engaged in a conversation with an
       17    individual named Mohammed.  He is not simply receiving
       18    information, he is inquiring.  He is asking of this individual
       19    what happened, what were the results of the operation.  He asks
       20    what happens to the tourist cars, do they stop or did it stop,
       21    and at the end of it he essentially gives his blessing to the
       22    operation.  He goes, "Well, thanks to God, may God guide you
       23    away for the best," which is approval of what happened, clearly
       24    demonstrating his mind-set, his intent, which is obviously
       25    relevant with respect to Count 2 of this indictment, and
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        1    clearly demonstrating and clearly indicating or is evidence of
        2    Ms. Stewart's knowledge of what Abdel Rahman thinks and what he
        3    does.
        4             THE COURT:  All right.
        5             I will sustain the objection.  Any relevance as to
        6    matters at issue, such as Ms. Stewart's state of mind with
        7    respect to the crimes charged or Omar Abdel Rahman's state of
        8    mind as a co-conspirator in conspiracies charged, is
        9    substantially outweighed by the danger of unfair prejudice
       10    given the allegations of violence against the police and, thus,
       11    should be excluded under Federal Rule of Evidence 403.
       12             The relevance of the evidence is also reduced by the
       13    length of time before the crimes charged in the counts at issue
       14    and the cumulative nature of the evidence to the extent it is
       15    offered for state of mind of Ms. Stewart or Abdel Rahman's
       16    state of mind based on the evidence submitted already.
       17             All right.
       18             Anything else?
       19             MR. RUHNKE:  Your Honor, with regard to the status of
       20    the transcripts, et cetera, and FISA restriction that the
       21    government is exploring, Mr. Morvillo and I discussed it this
       22    morning and he is still talking with the FISA people.  I asked
       23    him whether under those circumstances he wanted me to deliver
       24    draft transcripts to the walled assistant and he said, look,
       25    that would expedite matters and asked me actually to give them
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                                      (212) 805-0300
        1    to him to give to the walled team, which I am happy to do.
        2             So I am about to give Mr. Morvillo three CDs.  One is
        3    marked Exhibit MY-1000T, which is the Yousry notebooks, and it
        4    contains a notation draft 7/21/2004.  MY-1100T are prison
        5    visits, the complete prison visits.  It's a draft of July 2l,
        6    2004.  And MY-1200T are 52 prison calls out of 61 or 62, again
        7    containing the note draft 7/21/04, and I will hand them to Mr.
        8    Morvillo now with the understanding that these are drafts and
        9    if there is cross examination on the same conditions that we
       10    receive draft transcripts under.
       11             THE COURT:  Okay.  Do the 52 prison calls overlap with
       12    the 20 to 25 that the government -- I thought the government
       13    said they were --
       14             MR. RUHNKE:  I have not had a chance to cross
       15    reference them.  I am assuming they do.
       16             MR. MORVILLO:  There are only a total of 63 prison
       17    calls so there would have to be some overlap.
       18             MR. RUHNKE:  Some of them would have to be the same.
       19             THE COURT:  Okay.
       20             MR. MORVILLO:  With respect to the status of the FISA
       21    court application, your Honor, that is moving forward, as far
       22    as I understand, and just so we are all clear here, I may be
       23    overly optimistic that we will have an order some time today or
       24    tomorrow that will allow the trial team to have access to these
       25    materials.  Am I correct in assuming that we do not need to
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        1    come back to your Honor to allow the trial team to have access
        2    to these materials?  Once we get an order from the court we can
        3    inform all the parties we received that order, but do you want
        4    us to await a further order from your Honor before we can
        5    review these materials?
        6             THE COURT:  No.  You don't need a further order from
        7    me.  My understanding is none of the parties in this case
        8    object to your having the trial team get that information.
        9    Sheikh Abdel Rahman's lawyer did not object to your getting
       10    that information and the prior order of the court was that
       11    once -- my recollection is once the defendants indicated their
       12    intent to offer that, offer other portions, those portions were
       13    then to be turned over to the trial team unless the defendant
       14    says that they reflected or said they reflected some sort of
       15    defense strategy in which case they would be sent to the wall
       16    team and here there is no defense strategy because they say
       17    turn them all over.  So unless I am missing something, the
       18    government doesn't have to come back to me.
       19             MR. MORVILLO:  That was my assumption, your Honor, but
       20    I just wanted to clarify it.
       21             MR. RUHNKE:  We agree with that analysis as well.
       22             THE COURT:  Okay.  Anything else?
       23             Okay.  See you all on Monday at 9:15.
       24             (Trial adjourned to July 26, 2004 at 9:15 a.m.)
       25                                 o 0 o
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        1                          GOVERNMENT EXHIBITS
        2    Exhibit No.                                    Received
        3    1018X, 1019X, 1020X, 1021X . . . . . . . . . .   4267
        5                                 o 0 o
                            SOUTHERN DISTRICT REPORTERS, P.C.
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