24 June 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
Note: Transcripts were not provided between 1 June and 21 June, 2004.
This is the transcript of Day 12 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/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 -------------------------------------x
2 UNITED STATES OF AMERICA,
3
3 v. S1 02 Cr. 395 (JGK)
4
4 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
5 and MOHAMMED YOUSRY,
6
6 Defendants.
7 -------------------------------------x
7
8 June 24, 2004
8 9:30 a.m.
9
9
10
10 Before:
11 HON. JOHN G. KOELTL
11
12 District Judge
12
13
13 APPEARANCES
14
14 DAVID N. KELLEY
15 United States Attorney for the
15 Southern District of New York
16 ROBIN BAKER
16 CHRISTOPHER MORVILLO
17 ANTHONY BARKOW
17 ANDREW DEMBER
18 Assistant United States Attorneys
18
19 KENNETH A. PAUL
19 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
20
21 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
22
23 DAVID STERN
23 DAVID A. RUHNKE
24 Attorneys for Defendant Yousry
25
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Are we ready to bring in the jury,
4 Mr. Tigar?
5 MR. TIGAR: Yes, your Honor.
6 The government's intention this morning, I believe, is
7 to read to the jury speeches and sermons by Abdel Rahman and
8 then three or four recorded conversations. We have stipulated
9 to authenticity. We ask for a continuing objection on
10 relevance and remoteness grounds and 404(b) grounds. The Court
11 has already ruled on those objections, I know, but we would ask
12 not to have to stand up in front of the jury.
13 There are 115 single-spaced pages of speeches and
14 sermons that the government proposes to read to the jury.
15 That, from my radio days, is 460 minutes, if they read them
16 all. At some point during the day I will stand and, relying on
17 the article by Judge Ward Wolfson several years ago, make a 403
18 objection because it will seem to us at some point that one of
19 those objections would lie.
20 MR. DEMBER: Your Honor, before we get to reading of
21 transcripts and sermons and speeches, we are going to put on
22 Mr. Francisco to testify, and there are a number of government
23 exhibits we are going to offer in through him. I had
24 discussions with Mr. Tigar yesterday with respect to those
25 exhibits and I believe he told me -- he can correct me if I'm
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1 wrong -- that he had no objection to those exhibits going in.
2 THE COURT: Please keep your voice up, speak into the
3 microphone.
4 MR. DEMBER: I'm sorry, your Honor.
5 Your Honor, we are going to introduce a number of
6 exhibits through Mr. Francisco that consist of the government's
7 correspondence which were sent mostly to Ms. Stewart, which
8 included copies of the SAMs and blank attorney affirmations, as
9 well as signed affirmations which were returned to the U.S.
10 Attorney's Office. There are a number of exhibits.
11 I spoke with Mr. Tigar about this yesterday to see
12 whether or not he had any questions about the foundations
13 for -- any issues as with respect to laying foundation for
14 those documents. I believe he said he did not. And I would
15 suggest, just for a more efficient way of proceeding, that at
16 this point I offer those exhibits into evidence. And if there
17 is no objection, we place them in evidence and, therefore, not
18 have to lay a foundation for each document that I hand up to
19 Mr. Francisco, if that's acceptable to Mr. Tigar and to the
20 Court.
21 MR. TIGAR: Yes, your Honor. In fact, I had consented
22 to the admission -- this is the 1 through 20 set of exhibits?
23 MR. DEMBER: That's correct.
24 MR. TIGAR: If that's correct, I'll stipulate that
25 Mr. Francisco -- may I have just a moment, your Honor?
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1 THE COURT: Sure.
2 MR. TIGAR: Your Honor, I was considering whether or
3 not we could dispense with Mr. Francisco all together. The
4 government doesn't want to. We don't want to either.
5 We have no authenticity objections as to Exhibits 1
6 through 20 and would respectfully request that they do go into
7 evidence before I begin cross-examining Mr. Fitzgerald, who is
8 the author of many of them.
9 THE COURT: What exactly do you want to do,
10 Mr. Dember?
11 MR. DEMBER: Your Honor, at this point I am going to
12 move into evidence Government Exhibits -- there is a number of
13 them --
14 THE COURT: No. Mr. Francisco is going to be a
15 witness, right?
16 MR. DEMBER: Yes, he is.
17 THE COURT: With respect to moving exhibits in
18 evidence, they should really be moved or in some way indicated
19 to the jury that they are in evidence. You can do it now, but
20 then you would have to do it again before the jury.
21 MR. DEMBER: That's fine, your Honor. What I would
22 suggest, before questioning Mr. Francisco, that I formally move
23 those documents into evidence. If there is no objection, your
24 Honor can receive them. And then instead of laying a -- a
25 series of questions to lay the foundation for their admission
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1 with Mr. Francisco, I would merely hand them up to him and
2 identify them as Government Exhibit 1 or 2 or what have you.
3 It would just make the presentation more efficient.
4 THE COURT: That's fine. There is no objection to
5 that.
6 MR. DEMBER: Fine.
7 MR. TIGAR: Provided that they are in evidence before
8 I cross-examine Mr. Fitzgerald.
9 THE COURT: That's what's going to be done now.
10 MR. DEMBER: We will do it when the jury comes in,
11 Mr. Tigar.
12 THE COURT: He will be the first witness.
13 MR. TIGAR: I'm a little slow, your Honor. Thank you.
14 THE COURT: First of all, on a 403 objection now with
15 respect to the speeches, I've already indicated that I couldn't
16 make a 403 cumulativeness determination when there is not a
17 single one of those that's been offered yet and I have ruled on
18 other objections, as the parties point out.
19 To the extent that there is a 404(b) objection and the
20 parties want some form of limiting instruction, then they
21 should point out the specific 404(b) problem and the limiting
22 instruction that they seek, and you don't have to do that now.
23 Everyone ready for the jury?
24 MR. DEMBER: Yes, your Honor.
25 THE COURT: Let's bring in the jury.
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1 If there is a first witness, Mr. Francisco, let's put
2 him in the witness chair.
3 (Jury present)
4 THE COURT: Good morning, ladies and gentlemen. It is
5 good to see you all.
6 The government may call its next witness.
7 MR. DEMBER: Your Honor, at this time the government
8 calls Gerard Francisco to the stand.
9 GERARD C. FRANCISCO,
10 called as a witness by the Government,
11 having been duly sworn, testified as follows:
12 THE COURT: Mr. Dember, you may examine.
13 MR. DEMBER: Thank you, your Honor.
14 Your Honor, before I start my questioning, the
15 government will offer into evidence at this time Government
16 Exhibits 1, 2, 3, 4, 5, 7 -- 7 is already in evidence, your
17 Honor -- Exhibits 10, 11, 12, Exhibits 13 through 17, and
18 Exhibits 18 through 20.
19 THE COURT: Government Exhibit 8?
20 MR. DEMBER: The government is not offering Exhibit 8,
21 your Honor.
22 THE COURT: And in that series, 6, 7, and 9 are
23 already in evidence?
24 MR. DEMBER: That is correct, your Honor.
25 MR. TIGAR: No objection, your Honor.
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1 THE COURT: Government Exhibits 1, 2, 3, 4, 5, 10
2 through 20 received in evidence.
3 (Government's Exhibits 1, 2, 3, 4, 5, and 10-20
4 received in evidence)
5 MR. DEMBER: May I proceed, your Honor?
6 THE COURT: Yes.
7 DIRECT EXAMINATION
8 BY MR. DEMBER:
9 Q. Mr. Francisco, by whom are you employed?
10 A. I'm employed by the United States Attorney's Office,
11 Southern District of New York.
12 Q. How long have you been employed by that organization?
13 A. Approximately six and a half years.
14 Q. What is your current position with the U.S. Attorney's
15 Office?
16 A. My current position is legal administration specialist.
17 Q. How long have you held that position?
18 A. One year.
19 Q. And before moving into that position, what was your
20 position in the office?
21 A. Paralegal specialist.
22 Q. And did you hold that job from the time you first started
23 until your new position?
24 A. Yes.
25 Q. Now, Mr. Francisco, when you first started in the United
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1 States Attorney's Office, did you work with an Assistant United
2 States Attorney named Patrick Fitzgerald?
3 A. Yes.
4 Q. And are you, by the way, familiar with an individual named
5 Omar Abdel Rahman?
6 A. Yes.
7 Q. And do you know what Special Administrative Measures are?
8 A. Yes.
9 Q. In your position as a paralegal, did you have any
10 responsibilities with respect to the Special Administrative
11 Measures for Omar Abdel Rahman?
12 A. Yes.
13 Q. Would you describe for us what your responsibilities were?
14 A. My responsibilities were basically to maintain SAMs file
15 for Omar Abdel Rahman as well as other defendants.
16 Q. What did you actually do with respect to that?
17 A. What I actually did is, first, every certain period of time
18 there would be a renewal. Once I received a renewal from the
19 Department of Justice for the SAMs, I would send a copy -- a
20 cover letter to SAMs, attorney affirmation acknowledging
21 receipt of the SAMs. I would send those to the counsel of
22 record for Omar Abdel Rahman. And then eventually I would
23 receive a signed attorney affirmation from counsel of record,
24 and then I would maintain that in the file.
25 Q. And was it part of your responsibilities to maintain
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1 records of the documents that you sent to the attorneys for
2 Omar Abdel Rahman?
3 A. Yes.
4 Q. And was it also part of your responsibilities to maintain
5 correspondence that was received from the attorneys for Omar
6 Abdel Rahman as -- with respect to the SAMs?
7 A. Yes.
8 Q. The SAMs is a short way of describing a Special
9 Administrative Measures?
10 A. Yes.
11 Q. Now, do you recall the names of the attorneys to whom you
12 sent copies of the SAMs and blank attorney affirmations
13 periodically?
14 A. Yes.
15 Q. And who were those attorneys?
16 A. They were Lynne Stewart, Abdeen Jabarra, Ramsey Clark, and
17 at one point Lawrence Schilling, I believe.
18 Q. Now, do you recall approximately how often the SAMs were
19 renewed and you go about doing that?
20 A. When I was responsible for the SAMs, it was approximately
21 120 days.
22 MR. DEMBER: Your Honor, may I approach the witness?
23 THE COURT: Yes.
24 Q. Mr. Francisco, I've just handed up to you three of the
25 government exhibits, Exhibits 1, 2, and 3.
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1 First of all, do you recognize them?
2 A. Yes, I do.
3 Q. And, first of all, can you describe for us what is Exhibit
4 No. 1?
5 A. Government Exhibit No. 1 is a fax cover sheet, U.S.
6 Attorney office fax cover sheet from Patrick Fitzgerald to
7 Lynne Stewart, and attached to a blank attorney affirmation for
8 Lynne Stewart for the SAMs.
9 Q. Let's go back to the cover sheet.
10 MR. DEMBER: Your Honor, may we display Exhibit No. 1
11 for the jury, please?
12 THE COURT: Yes.
13 Q. Mr. Francisco, is there a date on this fax cover sheet?
14 A. Yes. The date sent to April 1, 1998.
15 Q. And who was it sent from?
16 A. It is sent from Patrick Fitzgerald.
17 Q. And it was sent to whom?
18 A. Lynne Stewart.
19 Q. Can you read the remarks section on the bottom of the fax
20 cover sheet for us?
21 A. Yes. Draft -- final to follow as per telephone call.
22 Q. Would you turn to the second page of the exhibit. I
23 believe you indicated this was the attorney affirmation?
24 A. Yes.
25 Q. And is there a name of an attorney at the top of the page?
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1 A. Yes, Lynne Stewart.
2 Q. Now, would you read after the name Lynne Stewart the first
3 eight lines of this affirmation, stopping on the eighth line
4 after the word term. Start with Lynne Stewart.
5 A. Lynne Stewart, pursuant to 28 U.S.C. Section 1746, hereby
6 affirms under the penalties of perjury the truth of the
7 following:
8 1. I am counsel of record for inmate Omar Abdel
9 Rahman and have read the "notification of inmate Omar Abdel
10 Rahman, a number, of special restrictions authorized by 28
11 C.F.R. Section 3501.3." Dated April dash dash, 1998, and
12 consisting of three pages. I understand the restrictions
13 contained in that document and agree to abide by its terms.
14 Q. Would you next go down to paragraph No. 2 on that document
15 on that page.
16 THE COURT: Could I just ask, for my eyesight, if
17 there is a way --
18 MR. DEMBER: Can we focus in on paragraph No. 2.
19 Q. Mr. Francisco, would you read paragraph No. 2 to us.
20 A. I also understand that during any visits to inmate Abdel
21 Rahman at any prison facilities, I shall again employ only
22 cleared translators/interpreters, and shall not leave such
23 translator/interpreter alone with inmate Abdel Rahman.
24 Moreover, I shall only be accompanied by translators for the
25 purpose of communicating with inmate Abdel Rahman concerning
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1 legal matters.
2 Q. And finally, just read for us paragraph No. 3.
3 A. Paragraph 3: I further understand that neither I nor any
4 member of my office shall forward any mail received from inmate
5 Abdel Rahman to a third person.
6 Q. I'm sorry. Why don't you read the final paragraph for us.
7 A. Paragraph 4: I understand that the Bureau of Prisons is
8 relying upon my sworn representations as a member of the bar in
9 this affidavit in affording inmate Abdel Rahman the opportunity
10 to meet and/or speak and/or correspond with me and my office
11 and that any violation of these understandings could, among
12 other things, result in further limitation (or even
13 elimination) of inmate Abdel Rahman's ability to contact me or
14 my office.
15 Q. And is the document dated in any way?
16 A. There is a typewritten date and it is blank for April 1998.
17 Q. What is the --
18 A. April 1998.
19 Q. Thank you.
20 Mr. Francisco, why don't you put that exhibit aside.
21 Turn to Exhibit No. 2, which is in evidence now.
22 First of all, would you tell us what is Exhibit No. 2?
23 A. Government Exhibit 2, again, is a fax cover sheet from the
24 United States Attorney's Office, from AUSA Patrick Fitzgerald
25 to Lynne Stewart, and attached to a confirmation report of the
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1 fax.
2 Q. Is the fax cover sheet dated?
3 A. Yes. It is dated May 5, 1998.
4 Q. And the second page --
5 MR. DEMBER: May we display this Exhibit to the jury,
6 your Honor?
7 THE COURT: Yes.
8 Q. Mr. Francisco, does the first page of this exhibit indicate
9 how many pages were faxed to Ms. Stewart?
10 A. Yes.
11 Q. How many is that?
12 A. Including the cover sheet, seven pages.
13 Q. Would you go to the second page of the exhibit, please.
14 And you indicated that's the fax confirmation sheet?
15 A. Yes.
16 Q. And is that sheet also dated?
17 A. Yes. It is dated May 5.
18 Q. And does it indicate how many total pages were faxed to
19 Ms. Stewart?
20 A. Yes. Seven pages.
21 Q. By the way, do you know what was faxed to Ms. Stewart?
22 A. It should have been the SAM plus attorney affirmation.
23 Q. Let's turn to Exhibit No. 3 now, please.
24 MR. DEMBER: May we display this exhibit to the jury
25 as well, your Honor?
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1 THE COURT: Yes.
2 Q. Why don't you describe for us what Exhibit No. 3 is in
3 total?
4 A. Government Exhibit 3, the first page is an attorney's
5 affirmation by Lynne Stewart, signed and dated May 7, 1998.
6 Attached to it is a five-page notification of Special
7 Administrative Measures, dated May 11, 1998, and attached is a
8 Fed Ex slip.
9 Q. And by the way, can you tell who prepared that Fed Ex slip?
10 A. Yes.
11 Q. Who is that?
12 A. I did.
13 Q. And that's your handwriting?
14 A. Yes, it is my handwriting.
15 MR. DEMBER: Can we go to the last page of the exhibit
16 first, please.
17 Q. And Mr. Francisco, is the Fed Ex receipt air bill dated?
18 A. Yes.
19 Q. What's the date?
20 A. May 5, 1998.
21 Q. Is that the same date as the fax on Exhibit No. 2?
22 A. Yes.
23 Q. And do you recall what you Fed Ex'd or sent to Ms. Stewart?
24 A. What I would Fed Ex would be the attorney affirmation. It
25 would be a blank attorney affirmation and a notification of
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1 Special Administrative Measures.
2 Q. Now, let's turn back to the first page of the exhibit. You
3 indicated this affirmation was signed, is that correct?
4 A. Yes.
5 Q. And I am not going to ask you to do this too often, but
6 would you, again, read for us on this affirmation the first
7 eight lines starting with the name Lynne Stewart, going down to
8 the word term.
9 A. Lynne Stewart, pursuant to 28 U.S.C. Section 1746, hereby
10 affirms under the penalties of perjury the truth of the
11 following:
12 1. I am counsel of record for inmate Omar Abdel
13 Rahman and have read the "notification of Special
14 Administrative Measures" for inmate Omar Abdel Rahman, dated
15 May 11, 1998, and consisting of five pages. I understand the
16 restrictions contained in that document and agree to abide by
17 its terms.
18 Q. That's fine. Why don't you go down to paragraph No. 2.
19 A. Paragraph No. 2: I also understand that during any visits
20 to inmate Abdel Rahman at any prison facilities, I shall again
21 employ only cleared translators/interpreters, and shall not
22 leave such translator/interpreter alone with inmate Abdel
23 Rahman. Moreover, I shall only be accompanied by translators
24 for the purpose of communicating with inmate Abdel Rahman
25 concerning legal matters.
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1 Q. Why don't you read for us the final paragraph.
2 A. Paragraph 4: I understand that the Bureau of Prisons is
3 relying upon my sworn representations as a member of the bar in
4 this affidavit in affording inmate Abdel Rahman the opportunity
5 to meet and/or speak and/or correspond with me and my office
6 and that any violation of these understandings could, among
7 other things, result in further limitation (or even
8 elimination) of inmate Abdel Rahman's ability to contact me or
9 my office.
10 Q. Why don't you turn the page of the exhibit to the next
11 page. And is that the first page of the SAMs?
12 A. Yes.
13 Q. Is it dated?
14 A. Yes. May 11, 1998.
15 Q. By the way, how many pages did this version of the SAMs
16 consist of?
17 A. Five pages.
18 Q. Would you read the first five lines on the first page,
19 three lines after the date that you just read.
20 A. Special Administrative Measures ("SAM") pursuant to 28
21 C.F.R. Section 3501.3(c), inmate-Sheikh Omar Abdel Rahman
22 (Rahman or "inmate").
23 Q. Go down to paragraph No. 2. Would you read that first
24 section to us starting with the words in bold, attorney
25 affirmation.
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1 A. Paragraph No. 2: Attorney affirmation of restrictions --
2 the inmate's attorneys of record individually by each if more
3 than one must sign an affirmation acknowledging that counsel,
4 counsel staff, and anyone else at the behest of, or with the
5 knowledge of, the attorneys, will fully abide by the
6 below-listed restrictions.
7 Q. Would you go to paragraph No. 3 and read it for us, please.
8 A. Paragraph 3: Inmate communications prohibitions. The
9 inmate is prohibited from having contact with other inmates and
10 others (except as noted in this document) that could
11 foreseeably result in the inmate communicating information
12 (sending or receiving) that could circumvent the SAM intent of
13 significantly limiting the inmate's ability to communicate
14 (send or receive) terrorist information.
15 Q. Would you go to the last page of the SAMs, which is page 5,
16 and read paragraph No. 8 to us.
17 A. Paragraph No. 8: Communication with news media. The
18 inmate shall not be permitted to talk with or otherwise
19 communicate with any representative of the news media, either
20 in person, by telephone, by furnishing a recorded message, by
21 communicating through inmate's attorneys/staff, or otherwise.
22 Any mail to/from news media will be handled as outlined above.
23 Q. Why don't you put those exhibits aside.
24 MR. DEMBER: Your Honor, may I approach the witness
25 again?
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1 THE COURT: Yes.
2 Q. Mr. Francisco I've just handed up to you Government
3 Exhibits 4, 5, and 6. 6 was introduced into evidence
4 yesterday.
5 Let's start and turn to Exhibit No. 4.
6 MR. DEMBER: May we display that to the jury, your
7 Honor?
8 THE COURT: Yes.
9 Q. Mr. Francisco, would you tell us what exhibit No. 4 is?
10 A. Government Exhibit 4, the first page is a Fed Ex USA air
11 bill. Attached is a cover letter dated August 23, 1999 from
12 the U.S. Attorney's Office. The next page is a blank
13 attorney's affirmation to Lynne Stewart, dated -- the date of
14 August 1999. And attached is a notification of Special?
15 Administrative Measures, dated April 7, 1999.
16 Q. Now, who prepared the air bill, Federal Express air bill?
17 A. I prepared the air bill.
18 Q. Is it dated?
19 A. Yes. It is dated August 23, 1999.
20 Q. And who is it addressed to?
21 A. It is addressed to Lynne Stewart.
22 Q. Let's turn to the next page. And what is that document?
23 A. This document is a cover letter from me to Lynne Stewart,
24 dated August 23, 1999.
25 Q. And would you just read after Dear Ms. Stewart. Could you
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1 read that to us.
2 A. Enclosed please find your copy of the "notification of
3 Special Administrative Measures" (SAM) for Omar Ahmed Ali Abdel
4 Rahman. After reading the SAM, please sign the enclosed
5 "attorney's affirmation" and return the original to our office.
6 Q. What is the date on that cover letter?
7 A. The date is August 23, 1999.
8 Q. And who prepared that letter?
9 A. I did.
10 Q. Is that your signature on the letter?
11 A. Yes.
12 Q. Why don't you turn to the next page and tell us what that
13 is?
14 A. Attorney affirmation for Lynne Stewart.
15 Q. And does this one read similar to the one we just read to
16 the jury a few moments ago?
17 A. Yes, similar, except it says it is for seven pages. SAMs
18 seven pages.
19 Q. I'm talking about the attorney affirmation. I'm sorry. Is
20 the attorney affirmation similar to the one you read to us a
21 few minutes ago?
22 A. Yes.
23 Q. Let's turn the page, the next page of the exhibit. What is
24 that?
25 A. That's notification of Special Administrative Measures,
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1 dated April 7, 1999.
2 Q. How many pages is this version of the Special
3 Administrative Measures?
4 A. Seven pages.
5 Q. On the first page of the SAMs, which we have displayed to
6 the jury at this point, would you go to paragraph No. 3 and
7 read that paragraph to us.
8 A. Paragraph No. 3: Inmate communications prohibitions. The
9 inmate is limited, within BOP reasonable efforts and existing
10 confinement conditions, from having contact with other inmates
11 and others (except as noted in this document) that could
12 reasonably foreseeably result in the inmate communicating
13 information (sending or receiving) that could circumvent the
14 SAM's intent of significantly limiting the inmate's ability to
15 communicate (send or receive) terrorist information.
16 Paragraph 3a: The inmate is prohibited from passing
17 or receiving any written or recorded communications to or from
18 any other inmate, visitor, attorney, or anyone else except as
19 outlined and allowed by this document.
20 Q. Would you turn to the next page of Special Administrative
21 Measures. And would you read the first section of paragraph 4,
22 please.
23 A. Paragraph 4: Attorney's affirmation of receipt of the SAM
24 restrictions document. The inmate's attorney, individually by
25 each if more than one, must sign an affirmation acknowledging
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1 receipt of the SAM restrictions document. The Federal
2 Government expects that the attorney, the attorney's staff, and
3 anyone else at the behest of, or acting on the behalf of, the
4 attorney, will fully abide by the SAM outlined in this
5 document. That exception is set forth in the SAM restrictions
6 document.
7 Q. Would you turn to the bottom of page 6. Turn to page 6
8 first of the SAMs on this exhibit. Would you read to us
9 paragraph 7b, which starts nonlegal mail.
10 A. Paragraph 7b, nonlegal mail, any mail not clearly and
11 properly addressed to/from the inmate's attorneys and not
12 marked privileged, all nonlegal mail (incoming or outgoing):
13 1. Shall be copied (including the surface of the
14 envelope) by the warden, or his/her designee, of the facility
15 in which the inmate is housed.
16 2. Shall be forwarded, in copy form, to the location
17 designated by the FBI, and
18 3. Shall be delayed distribution for a reasonable
19 time to allow for analysis prior to distribution very.
20 Q. Why don't you read Roman No. II on the next page?
21 A. Mail seizure.
22 If outgoing/incoming mail is determined by BOP or FBI
23 to contain overt or covert discussions of or requests for
24 illegal activities or actual or attempted circumvention of SAM,
25 the mail shall not be delivered/forwarded. The inmate shall be
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1 notified in writing of the seizure of any mail.
2 Q. Finally, go to the bottom of that page. Would you read for
3 us paragraph No. 9.
4 A. Paragraph 9: Communication with news media. The inmate
5 will not be permitted to talk with, meet with, correspond with,
6 or otherwise communicate with any member, or representative, of
7 the news media, in person, by telephone, by furnishing a
8 recorded message, through the mails, through his attorneys, or
9 otherwise.
10 Q. Would you turn to Exhibit No. 5.
11 MR. DEMBER: May we display that to the jury, your
12 Honor?
13 THE COURT: Yes.
14 Q. Do you have that before you, Mr. Francisco?
15 A. Yes.
16 Q. Would you tell us -- describe for us what Exhibit No. 5 is?
17 A. Government Exhibit 5, the first page is a Fed Ex USA airway
18 bill. Attached is a cover letter dated January 12, 2000 from
19 the United States Attorney's Office to counsel of record for
20 Omar Abdel Rahman. Attached to that is the attorney's
21 affirmation for Lynne Stewart, and attached to that is the
22 notification of Special Administrative Measures, April 7, 1999,
23 modified December 10, 1999.
24 Q. And let's start with the first page of the exhibit. The
25 Federal Express air bill, is that document dated?
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46OMSAT1 Francisco - direct
1 A. Yes. It is dated January 12, 2000.
2 Q. And who is it addressed to?
3 A. It is addressed to Lynne Stewart.
4 Q. And who is the sender? What's the name of the sender on
5 the air bill?
6 A. David Kelley.
7 Q. Who is David Kelley?
8 A. He was chief of the unit at the time.
9 Q. Was he an Assistant United States Attorney?
10 A. Yes.
11 Q. At the time?
12 A. Um-hum.
13 THE COURT: You have to answer with words.
14 THE WITNESS: I'm sorry. Yes.
15 Q. Would you turn to the second page of the exhibit. And
16 that's the cover letter you indicated?
17 A. Yes.
18 Q. What's the date on the cover letter?
19 A. The date is January 12, 2000.
20 Q. And who is it addressed to?
21 A. It is addressed to Ramsey Clark, Abdeen Jabarra, and Lynne
22 Stewart.
23 Q. And would you read the cover letter to us, starting with
24 defend counsel.
25 A. Dear counsel:
SOUTHERN DISTRICT REPORTERS, P.C.
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46OMSAT1 Francisco - direct
1 On December 10, 1999, the Special Administrative
2 Measures (SAM) for your client was modified and extended for
3 another 120 days. The previous SAM allowed you to communicate
4 with Omar Abdel Rahman even if you refused to sign the
5 acknowledgement of the SAM. Section 4(b)(II) of your client's
6 SAM dated April 7, 1999 has been modified to read as follows:
7 Once the SAM acknowledgement document has been signed
8 by the attorney, the SAM will not preclude the attorney from
9 communicating with his/her client as outlined herein, or as
10 otherwise dictated by BOP.
11 Enclosed is the modified version of your client's SAM
12 and an affirmation acknowledging receipt of the SAM. Please
13 sign the enclosed affirmation and return the original to our
14 office.
15 It is signed by David Kelley.
16 Q. Why don't you turn to the next page of the exhibit. Is
17 that the attorney affirmation?
18 A. Yes.
19 Q. Is that one slightly different than the other ones that you
20 have read to the jury?
21 A. Yes.
22 Q. That's a one-line affirmation?
23 A. Pretty much.
24 Q. You don't have to read the first part where it starts Lynne
25 Stewart. Go down to that last paragraph and read it to us.
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46OMSAT1 Francisco - direct
1 A. I am counsel of record for inmate Omar Abdel Rahman and
2 have received and read the modified "notification of Special
3 Administrative Measures" dated April 7, 1999.
4 Q. Mr. Francisco, as the person who maintained the records for
5 the SAMs for Omar Abdel Rahman, did you ever see a signed copy
6 of this particular affirmation in the records of the United
7 States Attorney's Office?
8 A. I can't recall at the moment.
9 Q. I'm sorry?
10 A. I can't recall at the moment.
11 Q. Why don't you turn now to the next page of the exhibit.
12 Just read the top two lines, starting with notification for us.
13 A. Notification of Special Administrative Measures, April 7,
14 1999 (modified December 10, 1999) Special Administrative
15 Measures, pursuant to 28 C.F.R. Section 501.3(c): Inmate,
16 Sheikh Omar Abdel Rahman (Rahman or "inmate").
17 Q. Now, on page 1 of the Special Administrative Measures,
18 could you just take a -- first, take a look at paragraph No. 3.
19 A. Okay.
20 Q. Have you done that?
21 A. Yes.
22 Q. Is that paragraph worded similar to other paragraph 3s in
23 the other SAMs you've read to us this morning?
24 A. Yes.
25 Q. And turn the page to page No. 2 of the SAMs. Would you
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46OMSAT1 Francisco - direct
1 look at paragraph No. 4 for us, particularly the first section
2 of paragraph 4.
3 A. Yes.
4 Q. And is that section worded similarly or the same as the
5 previous SAMs that you've read to us?
6 A. Yes.
7 Q. And let me ask you to turn to paragraph No. 7, which is on
8 page 6. Take a look at that paragraph and look at it for a
9 moment.
10 Is that paragraph worded similar to the paragraph in
11 the previous SAMs?
12 A. Yes.
13 Q. Finally, go to the final page of the SAMs.
14 By the way, how many pages is this version of the
15 SAMs?
16 A. Eight pages.
17 Q. And is paragraph 9, which starts with the words
18 communications with news media, is that paragraph worded the
19 same or similar to the corresponding paragraph in the previous
20 SAMs you've read to us?
21 A. Yes.
22 Q. Now, why don't you put that exhibit aside and turn to
23 Exhibit No. 6, which was admitted into evidence yesterday.
24 Do you see that?
25 A. Yes.
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46OMSAT1 Francisco - direct
1 Q. This exhibit was introduced yesterday. Would you just
2 remind us, what does this exhibit consist of?
3 A. Government Exhibit 6, first page, again, is a Fed Ex airway
4 bill, dated April 6, 2000. Attached is a United States
5 Attorney's Office cover letter, dated April 5, 2000. And
6 attached is attorney affirmations for Abdeen Jabarra.
7 Q. Let me interrupt you for a moment.
8 MR. DEMBER: Your Honor, may we display this exhibit
9 to the jury?
10 THE COURT: Yes.
11 A. Attorney affirmations for Abdeen Jabarra --
12 Q. Hold on. Why don't we go to the affirmation that has
13 Mr. Jabarra's name on it. The next page is?
14 A. Lynne Stewart.
15 Q. That's an affirmation with Ms. Stewart's name on it?
16 A. Yes.
17 Q. Blank?
18 A. Yes.
19 Q. And --
20 A. There is an affirmation for Ramsey Clark.
21 Q. And the next eight pages consist of what?
22 A. It is notification of Special Administrative Measures dated
23 December 10, 1999.
24 Q. By the way, have you compared this version of the Special
25 Administrative Measures to Government No. 5, Special
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46OMSAT1 Francisco - direct
1 Administrative Measures in Government Exhibit No. 5?
2 A. Yes.
3 Q. Is it the same?
4 A. Except for the date, it's all the same.
5 Q. The wording is the same?
6 A. Yes.
7 Q. Why don't you put that exhibit aside.
8 MR. DEMBER: Your Honor, may I approach the witness
9 again?
10 THE COURT: Yes.
11 Q. Mr. Francisco, I placed before you what is Government
12 Exhibit No. 7, which was introduced into evidence yesterday.
13 MR. DEMBER: May we display it to the jury, your
14 Honor?
15 THE COURT: Yes.
16 Q. Just briefly, Mr. Francisco, would you remind us what is
17 this exhibit?
18 A. Government Exhibit 7 is attorney's affirmation by Lynne
19 Stewart, dated -- signed and dated May 16, 2000, and attached
20 is a cover letter from Lynne Stewart to Paul Butler.
21 MR. DEMBER: May I approach again, your Honor?
22 THE COURT: Yes.
23 Q. Mr. Francisco, I've just handed you Government Exhibits 10,
24 11, and 12, is that correct?
25 A. Yes.
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46OMSAT1 Francisco - direct
1 MR. DEMBER: May we display to the jury Exhibit No.
2 10, your Honor?
3 THE COURT: Yes.
4 (Continued on next page)
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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46OSSAT2 Francisco - direct
1 Q. Mr. Francisco, would you tell us what Exhibit number 10 is?
2 A. Government Exhibit 10 is a FedEx airway bill dated November
3 28, 2000. Attached is a U.S. Attorney's Office cover sheet
4 dated November 28, 2000, and attached is an attorney's
5 affirmation for Lynne Stewart consisting of two pages.
6 Q. Let's turn to the first page of this exhibit, the Federal
7 Express airbill.
8 A. Yes.
9 Q. Is it dated?
10 A. Yes, November 28, 2000.
11 Q. Who is the sender?
12 A. The sender is Pat Fitzgerald.
13 Q. Who is it sent to?
14 A. Sent to Stanley Cohen.
15 Q. At what address?
16 A. 351 Broadway.
17 Q. And whose handwriting is on the airbill?
18 A. That is my handwriting.
19 Q. You sent it?
20 A. Yes.
21 Q. Turn to the second page of the exhibit, the cover letter.
22 What is the date on the cover letter?
23 A. The date is November 28, 2000.
24 Q. And would you read the cover letter to us starting with
25 "Dear Mr. Cohen."
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46OSSAT2 Francisco - direct
1 A. "Dear Mr. Cohen: On November 21, 2000, the Special
2 Administrative Measures (SAM) for Omar Abdel Rahman was
3 extended for another 120 days. Enclosed is a copy of Omar
4 Abdel Rahman's SAM and an affirmation acknowledging receipt of
5 the SAM for your client, Lynne Stewart, Esq., to sign. Please
6 have Ms. Stewart sign the enclosed affirmation and return our
7 original to our office."
8 And it's signed by Patrick Fitzgerald.
9 Q. And would you turn to the last two pages of the exhibit.
10 What is that?
11 A. It's an attorney's affirmation for Lynne Stewart.
12 Q. It's a blank copy?
13 A. Yes, blank.
14 Q. Why don't you put that exhibit aside and turn to exhibit
15 number 11.
16 MR. DEMBER: May we display that exhibit to the jury,
17 your Honor?
18 THE COURT: Yes.
19 Q. Mr. Francisco, would you tell us what this exhibit is?
20 A. Government Exhibit 11, the first page is a FedEx airway
21 bill dated April 5, 2001. Attached is a U.S. Attorney's Office
22 cover letter dated April 5, 2001. Attached is a blank
23 attorney's affirmation for Lynne Stewart consisting of two
24 pages, and attached to that is the notification of Special
25 Administrative Measures dated March 26, 2001.
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46OSSAT2 Francisco - direct
1 Q. Let's start with the first page of the exhibit, the Federal
2 Express airbill.
3 What is the date on that document?
4 A. April 5, 2001.
5 Q. And who is the sender?
6 A. The sender is Patrick Fitzgerald.
7 Q. And it's sent to who?
8 A. Stanley Cohen.
9 Q. Turn to the next page, which is the cover letter. What is
10 the date on the cover letter?
11 A. April 5, 2001.
12 Q. Would you read the cover letter starting with "Dear Mr.
13 Cohen."
14 A. "Dear Mr. Cohen: On March 26, 2001, the Special
15 Administrative Measures (SAM) for Dr. Omar Abdel Rahman was
16 extended for another 120 days. Enclosed is a copy of Dr. Omar
17 Abdel Rahman's SAM and an affirmation acknowledging receipt of
18 the SAM for your client, Lynne Stewart, Esq. to sign. Please
19 have Ms. Stewart sign the enclosed affirmation and return the
20 original to our office." Signed Patrick Fitzgerald.
21 Q. And the next two pages of this exhibit are the attorney
22 affirmation for Ms. Stewart?
23 A. Yes, a blank attorney's affirmation.
24 Q. After those two pages what do we have?
25 A. We have the notification of Special Administrative
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46OSSAT2 Francisco - direct
1 Measures, dated March 26, 2001, consisting of 8 pages.
2 Q. And have you compared this version of the Special
3 Administrative Measures with government number 5 which is in
4 evidence?
5 A. Yes.
6 Q. Other than the date, is the wording of the SAMs identical?
7 A. Yes.
8 Q. Why don't you put this exhibit aside and let's turn to
9 Exhibit number 12.
10 May we display that for the jury, your Honor?
11 THE COURT: Yes.
12 Q. Mr. Francisco, would you tell us what Exhibit 12 is?
13 A. Government Exhibit 12 is an attorney's affirmation by Lynne
14 Stewart or for Lynne Stewart signed by her with a fax header at
15 the top.
16 Q. And is it dated?
17 A. It's dated May 7 on the fax header and also by the
18 signature block.
19 Q. Mr. Francisco, starting with the words "Lynne Stewart,"
20 would you read this particular affirmation for us please from
21 beginning to end?
22 A. Okay.
23 "Lynne Stewart, pursuant to 28 U.S.C. Section 1746,
24 hereby affirms under the penalties of perjury the truth of the
25 following:
SOUTHERN DISTRICT REPORTERS, P.C.
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46OSSAT2 Francisco - direct
1 1. I am counsel of record for inmate Omar Abdel
2 Rahman and have read the notification of Special Administrative
3 Measures for inmate Omar Abdel Rahman, dated March 26, 2001,
4 and consisting of 8 pages. I understand the restrictions
5 contained in that document and agree to abide by its terms,
6 including the fact that I will not patch any calls by inmate
7 Abdel Rahman through to third parties (or otherwise transfer
8 such calls), nor will I allow third persons (other than cleared
9 translators who will be present in my office with me or my
10 co-counsel) to participate in the conversations. I have also
11 instructed the staff of my office that such staff are not to
12 patch any calls by inmate Abdel Rahman through to third parties
13 (or otherwise transfer such calls), nor will such staff allow
14 third persons (other than cleared translators who will be
15 present in my office with me or my co-counsel) to participate
16 in the conversations. I also agree that I will not record any
17 conversations with inmate Abdel Rahman or allow any member of
18 my office or staff to do so. I further specifically understand
19 that the telephone calls shall not be for the purpose of Abdel
20 Rahman presenting statements to the defense team for further
21 dissemination to third parties, including the media. I will
22 only allow the calls to be used for legal discussion between
23 Abdel Rahman and me.
24 2. I also understand that during any visits to inmate
25 Abdel Rahman at any prison facilities, I shall again employ
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46OSSAT2 Francisco - direct
1 only cleared translators/interpreters and shall not leave such
2 translator/interpreter alone with inmate Abdel Rahman.
3 Moreover, I shall only be accompanied by translators for the
4 purpose of communicating with inmate Abdel Rahman concerning
5 legal matters. I further specifically understand that the
6 meetings shall not be for the purpose of presenting statements
7 to the defense team for further dissemination to third parties,
8 including the media. I will only allow the meetings to be used
9 for legal discussion between Abdel Rahman and me.
10 3. I further understand that neither I nor any member
11 of my office shall forward any mail received from inmate Abdel
12 Rahman to a third person. Nor shall I use my meetings,
13 correspondence or phone calls with Abdel Rahman to pass
14 messages between third parties (including, but not limited to,
15 the media) and Abdel Rahman. I further specifically understand
16 that I shall not broadcast messages for Abdel Rahman directly
17 or indirectly to or through the media, including, but not
18 limited to, messages concerning Abdel Rahman's views --
19 positive, negative or neutral -- concerning the propriety of
20 violence. I shall not pass any mail received onto any third
21 parties and shall ensure that all mail received is translated
22 by a cleared interpreter and reviewed by me or other cleared
23 counsel. I further understand that if Abdel Rahman wishes to
24 communicate in any way through the media he shall only do so by
25 making a request through the Bureau of Prisons.
SOUTHERN DISTRICT REPORTERS, P.C.
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46OSSAT2 Francisco - direct
1 4. I understand that the Bureau of Prisons is relying
2 upon my sworn representations as a member of the bar in this
3 affidavit in affording the inmate Abdel Rahman the opportunity
4 to meet and/or speak and/or correspond with me and my office
5 and that any violations of in these understandings could, among
6 other things, result in further limitation (or even
7 elimination) of inmate Abdel Rahman's ability to contact me or
8 my office. I further specifically understand that Abdel Rahman
9 has been convicted of terrorism offenses, including soliciting
10 crimes of violence and that terrorist actions have been carried
11 out by persons using his name subsequent to his conviction --
12 including the killing of approximately 60 tourists in Luxor,
13 Egypt, in November 1997 and the kidnapping of tourists in the
14 Philippines in the spring of 2000. Moreover, the Islamic
15 Group, which the United States believes Abdel Rahman was
16 affiliated with in the past has never disowned, has been
17 designated a foreign terrorist organization by the Secretary of
18 State. I thus understand that the United States is concerned
19 that a violation of the Special Administrative Measures,
20 including, but not limited to, dissemination of messages on
21 behalf of Abdel Rahman can result in violence to persons or
22 property here in the United States or overseas. I specifically
23 understand that the intent of the Special Administrative
24 Measures is to deprive Abdel Rahman, convicted of terrorism
25 offenses, of communication facilities and equipment and that
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46OSSAT2 Francisco - direct
1 his opportunity to consult with counsel is not to be converted
2 into an opportunity to use communication equipment and
3 facilities for any purpose other than legal consultation."
4 Signed Lynne Stewart, May 7, 2001.
5 MR. DEMBER: Your Honor, may I approach the witness?
6 THE COURT: Yes.
7 Q. Mr. Francisco, I have just handed you up Government
8 Exhibits 13, 14, 15, 16 and 17, is that right?
9 A. Yes.
10 Q. Let's turn to Exhibit 13 first.
11 MR. DEMBER: May we display Exhibit 13 for the jury,
12 your Honor?
13 THE COURT: Yes.
14 Q. Just in summary, does this say package of materials that
15 were sent to Stanley Cohen for Ms. Stewart?
16 A. Yes.
17 Q. Let's turn to the first page and tell us what that is.
18 A. The first page is a FedEx airway bill, dated August 6,
19 2001.
20 Q. And sent by whom?
21 A. Sent by David Kelley to Stanley Cohen.
22 Q. And the next page is a cover letter to Mr. Cohen?
23 A. Yes.
24 Q. Indicating that the contents of the Federal Express
25 envelope are an attorney affirmation of SAMs?
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46OSSAT2 Francisco - direct
1 A. Yes.
2 Q. And what is the date on that letter?
3 A. It's dated July 31, 2001.
4 Q. Turning to the next page, the next two pages are an
5 attorney affirmation, is that correct?
6 A. Yes.
7 Q. And is this affirmation worded just like the one you just
8 read to us? Does it appear to be?
9 A. Yes.
10 Q. And, finally, the last 8 pages of this exhibit are a set of
11 the Special Administrative Measures that were in effect on July
12 23, 2001?
13 A. Yes.
14 Q. Are these Special Administrative Measures identical in
15 their language to exhibit number 5 that you referred to and
16 read from earlier?
17 A. Yes.
18 Q. Let's turn to Exhibit number 14. Do you have that before
19 you?
20 A. Yes.
21 MR. DEMBER: May we display that exhibit to the jury,
22 your Honor?
23 THE COURT: Yes.
24 Q. Would you tell us what this exhibit is?
25 A. Exhibit 14 is a signed attorney's affirmation by Lynne
SOUTHERN DISTRICT REPORTERS, P.C.
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46OSSAT2 Francisco - direct
1 Stewart dated October 8, 2001. Attached is a cover letter from
2 Lynne Stewart to David Kelley, an envelope from Lynne Stewart
3 to Dave Kelley, and a copy of a fax of the attorney affirmation
4 and the cover letter.
5 Q. In other words, the attorney affirmation was mailed and it
6 was also faxed to the U.S. Attorney's Office?
7 A. Yes.
8 Q. Is that correct?
9 A. Yes.
10 Q. And is the language of this attorney affirmation identical
11 to the one that you just read for us, or similar?
12 A. Yes.
13 Q. Let me ask you to turn to Exhibit number 15.
14 MR. DEMBER: May we display Exhibit 15 to the jury,
15 your Honor?
16 THE COURT: Yes.
17 Q. Mr. Francisco, is this another one of these packages of a
18 cover letter, of a blank attorney affirmation for Ms. Stewart,
19 and a copy of the Special Administrative Measures?
20 A. Yes.
21 Q. And what is the date on the Federal Express airbill?
22 A. December 21, 2001.
23 Q. And who was it sent from and to whom?
24 A. It's sent from Joseph Bianco to Stanley Cohen.
25 Q. Turn to the next page please. The cover letter is dated
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46OSSAT2 Francisco - direct
1 what date?
2 A. December 21, 2001.
3 Q. Also addressed to Mr. Cohen?
4 A. Yes.
5 Q. Why don't we turn to the next two pages, the next page that
6 starts "the attorney affirmation."
7 A. Yes.
8 Q. And does this affirmation worded the same or similar to the
9 one that you just read to us?
10 A. Yes.
11 Q. Let's go to the last 8 pages of this exhibit and it
12 consists of what?
13 A. It consists of the SAM.
14 Q. What is the date on this version of the SAMs?
15 A. This version of the SAMs is dated November 15, 2001.
16 Q. Did you compare the language of this version of the SAMs
17 with Government Exhibit 5 which you read from earlier?
18 A. Yes.
19 Q. Is it identical?
20 A. Yes, other than the date.
21 Q. Let me ask you to go to Exhibit number 16.
22 MR. DEMBER: May we display Exhibit 16 to the jury,
23 your Honor?
24 THE COURT: All right.
25 Q. And what is Exhibit 16?
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46OSSAT2 Francisco - direct
1 A. Government Exhibit 16, the first page consists of a copy of
2 two FedEx airway bills dated December 31, 2001, one airway bill
3 from myself to Lynne Stewart and the other one to Ramsey Clark.
4 Attached is a cover letter dated December 31, 2001 from the
5 U.S. Attorney's Office signed by me. And attached is the
6 attorney affirmations for Lynne Stewart and Ramsey Clark that
7 are blank.
8 Q. Those are the blank ones?
9 A. Yes.
10 Q. Are those worded the same as the one you just read to us?
11 A. Yes.
12 Q. Let me ask you to turn to Exhibit number 17.
13 MR. DEMBER: May we display 17 to the jury, your
14 Honor?
15 THE COURT: Yes.
16 Q. Mr. Francisco, what is Exhibit 17?
17 A. Government Exhibit 17 is attorney's affirmation by Lynne
18 Stewart signed by her on January 9, 2002.
19 Q. Is this affirmation worded the same or similar to the one
20 you read to us just a few minutes ago?
21 A. Yes.
22 MR. DEMBER: Your Honor, may I approach the witness
23 for one last time?
24 THE COURT: Yes.
25 Q. Mr. Francisco, I have just handed you Government Exhibits
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46OSSAT2 Francisco - direct
1 18, 19 and 20, is that correct?
2 A. Yes.
3 MR. DEMBER: May we display for the jury Exhibit 18,
4 your Honor?
5 THE COURT: Yes.
6 Q. Mr. Francisco, would you describe this exhibit for us
7 please?
8 A. Government Exhibit 18 is a FedEx airway bill dated August
9 23, 1999 from me to Ramsey Clark. Attached is a cover letter
10 signed by me dated August 23, '99 to Ramsey Clark, and attached
11 is a blank attorney's affirmation to Ramsey Clark.
12 Q. By the way, the cover letter indicates that Special
13 Administrative Measures were sent with the attorney
14 affirmation, is that correct?
15 A. Yes.
16 Q. Let me ask to you turn to Exhibit number 19.
17 MR. DEMBER: May we display 19 to the jury, your
18 Honor?
19 THE COURT: All right.
20 Q. Would you describe this exhibit for us, Mr. Francisco?
21 A. Government Exhibit 19 is -- the first page consists of a
22 FedEx airway bill dated August 23, 1999 from me to Abdeen
23 Jabara. Attached is a cover letter dated August 23, '99 to
24 Abdeen Jabara from myself, and attached to that is an
25 attorney's affirmation for Abdeen Jabara which is blank.
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46OSSAT2 Francisco - direct
1 Q. And the date on that affirmation is August. There is a
2 blank space and it's 1999, correct?
3 A. Yes.
4 Q. Finally, let me ask you to turn to Exhibit number 20.
5 MR. DEMBER: May we display Exhibit 20?
6 THE COURT: Yes.
7 Q. Mr. Francisco, would you describe this exhibit for us?
8 A. Government Exhibit 20, the first page is a FedEx airway
9 bill dated January 12, 2000 from David Kelley to Ramsey Clark.
10 The second page is another airway bill dated January 12, 2000
11 from David Kelley to Abdeen Jabara. The next page is a United
12 States Attorney's Office cover letter dated January 12, 2000
13 addressed to Ramsey Clark, Abdeen Jabara and Lynne Stewart, and
14 signed by David Kelley. And attached is the attorney's
15 affirmation for Ramsey Clark, Lynne Stewart and Abdeen Jabara,
16 and they are blank.
17 Q. Mr. Francisco, all of the exhibits that we have shown you
18 this morning, have they all come from the records of the United
19 States Attorney's Office?
20 A. Yes.
21 MR. DEMBER: Your Honor, I have no further questions
22 at this time.
23 THE COURT: All right.
24 Mr. Stern.
25 CROSS EXAMINATION
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46OSSAT2 Francisco - cross
1 BY MR. STERN:
2 Q. Good morning, Mr. Francisco.
3 A. Good morning.
4 Q. Before you began at the U.S. Attorney's Office, did you
5 have some educational background?
6 A. Yes.
7 Q. What was that?
8 A. I had 4 years -- I have a Bachelor of Science degree in
9 criminal justice.
10 Q. Did you have any degree as a paralegal from a paralegal
11 training school, for example?
12 A. No.
13 Q. So when you got there is when they began to give you your
14 training as a paralegal, is that correct?
15 A. Yes.
16 Q. And it was several years before you had the job you have
17 now, you worked as a paralegal under various attorneys in the
18 U.S. Attorney's Office?
19 A. Yes.
20 Q. And I take it your job required you to do things other than
21 to send out these letters about attorney affirmations and SAMs,
22 correct?
23 A. Yes.
24 Q. You worked on trials, right?
25 A. Yes.
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46OSSAT2 Francisco - cross
1 Q. You worked on trials with Pat Fitzgerald?
2 A. Yes.
3 Q. And with other attorneys, right?
4 A. Yes.
5 Q. And when you worked on those trials, did you have specific
6 jobs you were supposed to do?
7 A. Yes.
8 Q. And what were those specific jobs?
9 A. Some of my jobs included sending out discovery to counsel,
10 setting up data bases or keeping up with files, organizing
11 correspondence, and various other tasks just to help attorneys
12 complete their mission or task.
13 Q. When you say various other tasks, do you mean if the
14 attorney would ask you to do something within reason you would
15 do it, right?
16 A. Yes.
17 Q. If they asked you to bring things over to court you do
18 that?
19 A. Yes.
20 Q. If they asked you to arrange for someone to come somewhere
21 you would do that?
22 A. Yes.
23 Q. So pretty much whatever needed to be done in the course of
24 representation of that case you were the one to do it, right?
25 A. Myself or others.
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46OSSAT2 Francisco - cross
1 Q. But it wasn't like there were limits on what you could do
2 for them as long it was legal what you were being asked to do
3 you were willing to do it, right?
4 A. Yes.
5 Q. Now, the affirmations and SAMs that you talked about for
6 sometime here were sent up not just to the four lawyers we have
7 talked about, Larry Schilling, Abdeen Jabara, Lynne Stewart and
8 Ramsey Clark, but on other cases, other lawyers, right?
9 A. Yes.
10 Q. And you discussed the lengths that were gone to to insure
11 that when the lawyers got these documents they read them,
12 right?
13 A. I sent them out and if they read them they read them, and
14 if I received the affirmation I received the affirmation.
15 Q. When you received the affirmation, that was supposed to be
16 proof they had read them and understood them, wasn't it?
17 A. Yes.
18 Q. That is the point of sending an affirmation along with the
19 SAMs, correct?
20 A. Yes.
21 Q. Now, did you ever send any SAMs to Mohammed Yousry?
22 A. No.
23 Q. Did you ever send any affirmations or affidavits to
24 Mohammed Yousry?
25 A. No.
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46OSSAT2 Francisco - cross
1 Q. Did you ever send him a letter asking him, Mr. Yousry, have
2 you read and been informed about the requirements and
3 obligations the SAMs impose on you?
4 A. No.
5 MR. STERN: I have nothing else, thank you.
6 THE COURT: All right.
7 Mr. Tigar, you may examine.
8 MR. TIGAR: Thank you, your Honor.
9 CROSS EXAMINATION
10 BY MR. TIGAR:
11 Q. Mr. Francisco, do you have in front of you the exhibits
12 about which you have been speaking or just a few of them?
13 A. I should have all of them here.
14 Q. All of them, good.
15 Sir, first I want to ask you, what date did you start
16 working at the U.S. Attorney's Office?
17 A. October 6, '97.
18 Q. And when did you start having to do with the SAMs that
19 related to Sheikh Omar Abdel Rahman?
20 A. Either late December '97 or maybe early January '98, around
21 that time period.
22 Q. And who instructed you about how the sending of the
23 affirmations and the SAMs were supposed to work?
24 A. There was a former assistant in the office, Lev Dassin. He
25 was responsible for the SAMs in another case and he explained
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46OSSAT2 Francisco - cross
1 it to me and I just followed his instructions.
2 Q. Did you and Mr. Fitzgerald discuss the SAMs?
3 A. From time to time.
4 Q. And did he talk to you about issues, any issues that had
5 arisen about whether the SAMs had been complied with?
6 A. Sometimes we talked about the SAMs, yes.
7 Q. Did he talk to you in the year '97, shortly after you came,
8 about an issue that had arisen with respect to Ramsey Clark and
9 the SAMs?
10 A. I don't recall the specific issue regarding Ramsey Clark
11 that I can think of right now.
12 Q. You don't recall anything about any discussion about Ramsey
13 Clark?
14 A. Ramsey Clark, no.
15 Q. Will you take a look, sir, please at Government Exhibit 4.
16 A. Yes.
17 MR. TIGAR: Your Honor, I am going to try to turn on
18 the light here but the button doesn't seem to do it. May I ask
19 for the assistance of someone toto turn on --
20 MR. MORVILLO: If Mr. Tigar likes we can do that for
21 Mr. Tigar.
22 Q. May we have Government Exhibit 4 please displayed.
23 Thank you.
24 THE COURT: Sure.
25 Q. Now, can we have page 2 please. Thank you.
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46OSSAT2 Francisco - cross
1 Now, that is a letter dated August 23, '99, is that
2 right?
3 A. Yes.
4 Q. And it encloses the SAMs for Lynne Stewart, correct?
5 A. Yes.
6 Q. Now, may we have the first page of the notification please,
7 that will be two pages further on. The next page please.
8 Thank you.
9 Now, you notice there is a date, notification of
10 Special Administrative Measures, correct?
11 A. Yes.
12 Q. And that date is April 7, '99, is that right?
13 A. Yes.
14 Q. Now just a moment ago we saw that the letter to Lynne
15 Stewart was dated August '99, correct?
16 A. Yes.
17 Q. And she was asked to sign an affirmation, right?
18 A. Yes.
19 Q. You told us earlier that the SAMs were only good for 120
20 days, right?
21 A. Yes, they have to be renewed every 120 days.
22 Q. So April, May, June, July, August, was there some reason
23 that you know of that you were sending Ms. Stewart in August an
24 affirmation about SAMs that had been issued back in April and
25 were only good for 120 days?
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46OSSAT2 Francisco - cross
1 A. I can't recall unless I was just busy and I sent it in
2 August but I can't recall exactly why it's in August.
3 Q. I understand, sir. You were just doing the task you were
4 asked to do so by those in charge, right?
5 A. Yes.
6 Q. You were not responsible for drafting affirmations, were
7 you?
8 A. No.
9 Q. Who was responsible, if you know, for drafting the
10 affirmations that would be sent to the lawyers?
11 A. I received a copy of the affirmations from probably Pat
12 Fitzgerald. I would have it on disk or he would give me a hard
13 copy.
14 Q. I am sorry, can you slow down just a little bit and talk a
15 little louder for my benefit.
16 A. I received either a disk or maybe a hard copy from Pat
17 Fitzgerald. That is my recollection.
18 Q. You have no personal knowledge of whether Mr. Fitzgerald
19 drafted them by himself or with somebody else or he didn't,
20 right?
21 A. Yes.
22 Q. Sir, would you --
23 THE COURT: Please, for the witness, keep your voice
24 up and talk into the microphone.
25 Thank you.
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46OSSAT2 Francisco - cross
1 Q. Now, would you turn please to Government Exhibit 6, if we
2 can have that please.
3 Now, again, can we have the next page please.
4 This is a letter dated April 5, is that correct?
5 A. Yes.
6 Q. And it recites, does it not, that the Special
7 Administrative Measures were extended on April 3 for another
8 120 days, correct?
9 A. Yes.
10 Q. And there are three in a row that we saw earlier unsigned
11 affirmations, correct?
12 A. Yes.
13 Q. Now, would you look -- and may we have please the first
14 page of the SAM.
15 Now, the SAMs notification that was enclosed are dated
16 December 10, '99, correct?
17 A. Yes.
18 Q. So if we count January, February, March, April, sometime in
19 early April those December SAMs would have expired, correct?
20 A. Yes.
21 Q. Now, do you have or have you seen in your files any SAMs
22 that are dated April 3, 2000?
23 A. Not April 3. I don't think there is one April 3, 2000. I
24 think there is maybe April 9.
25 Q. So as you understand it, then, under Government Exhibit
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46OSSAT2 Francisco - cross
1 number 6 on April 5, Mr. Butler sent out some affirmations and
2 he sent out a copy of a SAM which by your understanding had
3 already expired, right?
4 A. Well, it would have been renewed around that time and we --
5 but it's the same SAM from December 10. The December 10, '99
6 SAM would have been renewed. It would have been the same SAM.
7 So it got renewed and so we sent out the SAM.
8 Q. My question is the letter that was sent to the lawyers
9 enclosed a SAM that is dated December 10, correct?
10 A. Yes.
11 Q. Now, would you turn please to Government 7. Now, that is
12 the signed affirmation that is the same as the blank one in
13 Government Exhibit 6, correct?
14 A. Correct.
15 Q. And it's signed by Lynne Stewart, correct?
16 A. Correct.
17 Q. It's dated May 16, correct?
18 A. Correct.
19 Q. And if you look at the first paragraph -- if we can have
20 that enlarged -- it says "I am counsel of record" and it talks
21 about the SAMs dated December 10, correct?
22 A. Correct.
23 Q. Of what year?
24 A. 2000.
25 Q. Now, that is, let's see, the signature is May 16, it 2000,
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1 so December 10 hadn't happened yet, had it?
2 A. No.
3 Q. A typo?
4 A. A typo.
5 Q. Well, would you look back please at December 6, and may we
6 have -- excuse me, Government 6, and may we have the Ramsey
7 Clark affirmation out of Government 6, paragraph 1, if we can
8 enlarge that please.
9 Thank you.
10 Now, the Ramsey Clark affirmation in paragraph 1 is
11 dated December 10, '99, correct?
12 A. Correct.
13 Q. Do you know of any reason why one to Lynne Stewart would be
14 dated 2000 and one to Ramsey Clark would be dated 1999 and sent
15 on the same day?
16 A. What would happen is since I have a copy of the affirmation
17 on disk I probably didn't change -- I forgot to change the date
18 on Lynne Stewart and also Abdeen Jabara's affirmation which
19 both have 2000 on it.
20 Q. Now, sir, would you please take a look at -- oh, excuse me,
21 let me go back to Government 7 here. May we go back to
22 Government 7 please, the second page.
23 That is a letter, a cover letter, May 26, 2000,
24 correct?
25 A. Correct.
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46OSSAT2 Francisco - cross
1 Q. And in the normal course of the mail, since there is Lynne
2 Stewart's office on lower Broadway, right?
3 A. I believe so.
4 Q. If the mail service is as good as they say it is that would
5 arrive at your office a couple of days later, right?
6 A. I am assuming, yes.
7 Q. And, therefore, it couldn't possibly have gotten there
8 before May 26, right?
9 A. No.
10 Q. Are you aware of whether or not you actually had on file an
11 affirmation signed by Lynne Stewart at the time she visited her
12 client in Rochester, Minnesota, on May 19 and 20, 2000?
13 A. There may be another SAM prior to that where she signed an
14 affirmation.
15 Q. I am asking you, sir, as you sit there today of your
16 knowledge do you know whether or not there is a signed
17 affirmation by Lynne Stewart that was on file in your office
18 acknowledging an obligation to obey the SAMs that were then in
19 effect before she met with her client in Rochester on May 19
20 and 20? Do you know or not?
21 A. I can't recall. I can't recall at the moment.
22 Q. Turn please to Government 8.
23 I am sorry, Government 8 is not in evidence. Would
24 you please turn to Government 9.
25 This is a letter from Mr. Fitzgerald to Ms. Stewart,
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1 correct?
2 A. Correct.
3 Q. And attached to it is an affirmation that he is asking that
4 Ms. Stewart sign before any legal visits can be contemplated,
5 correct?
6 A. Actually I don't have a copy of that exhibit.
7 Q. I am sorry.
8 MR. TIGAR: May the witness be given a copy of the
9 original or whatever of Government Exhibit 9?
10 THE COURT: Yes.
11 MR. MORVILLO: Your Honor, it is displayed on the
12 witness' screen.
13 MR. TIGAR: It is on his screen, okay.
14 THE COURT: That is all right. We can take a moment.
15 Q. Mr. Francisco, whatever is most comfortable for you, sir.
16 Thank you, very much, Mr. Dember.
17 May I approach? I will give it to him. I don't mean
18 to have government employees to do my job.
19 THE COURT: That is all right. You can approach.
20 Q. Now, sir, do you have Government 9?
21 A. Yes, a copy of Government 9.
22 Q. Now, attached to that beginning at the third page of the
23 document is an attorney's affirmation, correct?
24 A. Correct.
25 Q. And then the next page includes the paragraph 4 that the
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1 jury has already seen, correct?
2 A. Yes.
3 Q. Now, you know, do you not, sir, that Ms. Stewart never
4 signed anything that had that language in paragraph 4, correct?
5 A. I don't believe so, no.
6 Q. In fact, as you understand it, sir, there were changes that
7 got negotiated as to what she would sign and wouldn't sign,
8 correct?
9 A. I understand there were conversations. I don't know the
10 exact details.
11 Q. In the year 2000, were you aware that there -- aware that
12 there was, did you say, a controversy?
13 A. I didn't say controversy. I know there were negotiations
14 like you said, but I just don't know the details.
15 Q. To your knowledge, sir, who was involved in negotiating
16 what language Ms. Stewart would and wouldn't be willing to
17 sign?
18 A. I believe it would have been either Patrick Fitzgerald or
19 David Kelley, one of the two.
20 Q. That would be from the U.S. Attorney's Office?
21 A. From the U.S. Attorney's Office. I don't know who it would
22 be on the other side.
23 Q. But your files do reflect, do they not, sir, what Ms.
24 Stewart actually went ahead and did agree to sign, correct?
25 A. Correct.
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46OSSAT2 Francisco - cross
1 Q. And if you would just place before you, and I don't know
2 that -- well, could you look please, sir, at Government 11.
3 A. Yes.
4 Q. And in paragraph 4 of number 11 -- and we are going to have
5 Mr. Fitzgerald here so I don't want to take a lot of your time
6 with it -- do you see the language "I thus understand that the
7 United States is concerned that a violation of the Special
8 Administrative Measures," do you see that language?
9 A. Yes.
10 Q. So Ms. Stewart is saying there I understand that the United
11 States is concerned, right?
12 A. Based on what it says here, yes.
13 Q. And that language --
14 THE COURT: I am sorry, do you want --
15 MR. TIGAR: Can we take this down please. We can
16 blank the screen. I am just asking the witness.
17 Thank you, your Honor.
18 Q. And, as you say, you don't know the details of how it is
19 that the language got changed so that she was acknowledging
20 that the United States had a concern rather than saying that
21 she admitted certain facts?
22 A. Yes, I don't know the details.
23 Q. But can you tell us, sir, based on your knowledge about how
24 long those negotiations took about what Ms. Stewart and Mr.
25 Fitzgerald were going to do?
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46OSSAT2 Francisco - cross
1 MR. DEMBER: Objection, your Honor.
2 THE COURT: Basis?
3 MR. DEMBER: He hasn't established knowledge of
4 negotiations, your Honor.
5 THE COURT: Overruled on that basis.
6 Go ahead.
7 Q. Go ahead.
8 A. I can't recall. I don't know the specific time frame.
9 Q. Okay.
10 Would you take a look, sir, please at Government
11 Exhibit 14.
12 May we have that displayed please, the third page.
13 And would you please read for us the second -- would
14 you read the letter, "Dear Mr. Kelley," and would you read the
15 letter for the jury please.
16 A. "Dear Mr. Kelley: I enclose a signed Attorney's
17 Affirmation with regard to Sheikh Abdel Rahman. I assume that
18 upon receipt of this affirmation I will continue to have both
19 visiting and telephone communication with my client. If there
20 is any problem with the above kindly contact my office
21 immediately." Signed Lynne Stewart.
22 (Continued on next page)
23
24
25
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46OMSAT3 Francisco - cross
1 Q. Do you know whether or not Mr. Kelly or anyone ever
2 responded to that letter telling Ms. Stewart that there was a
3 problem?
4 A. I don't know if he responded or not.
5 Q. In your search of your files about the SAMs, have you seen
6 any letter or response by Mr. Kelly or anyone else?
7 A. I can't recall at this time.
8 Q. And based on your knowledge of how the SAMs work, the SAMs
9 contained, did they not, a reference to attorney visits, right?
10 A. Yes.
11 Q. And based on your recollection, was the language in the
12 SAMs at various times about attorney visits pretty much the
13 same?
14 A. Pretty much.
15 Q. And could we take a look as a sample at Government's 15 in
16 evidence, page 2 of the SAMs. May we focus in on 4b. Would
17 you read the language under b, please.
18 A. After initiation of SAM and prior to the inmate's attorney
19 being permitted to have attorney/client privilege contact with
20 the inmate, the inmate's attorney shall execute the attorney
21 affirmation of receipt of the SAM restrictions document and
22 return the original to the USA/SDNY.
23 Q. As you understood the process, therefore, Mr. Fitzgerald or
24 someone else would direct you to send out the affirmations in
25 the SAMs, correct?
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46OMSAT3 Francisco - cross
1 A. Correct.
2 Q. The affirmations would come back and you would file them,
3 correct?
4 A. Correct.
5 Q. And then the attorneys would look at the SAMs and know what
6 was in them, correct?
7 A. Correct.
8 Q. And then they would get what the SAMs said they were going
9 to get, right?
10 A. Correct.
11 Q. To your knowledge, sir, did Ms. Stewart have
12 attorney-client privileged communications with her client after
13 she signed the affirmation?
14 MR. DEMBER: Objection, your Honor.
15 Q. Do you know?
16 A. I would not know.
17 Q. Sir, as you sit here today, do you know whether or not Mr.
18 Fitzgerald or anyone you were working for in the SAMs ever
19 outright forbid, prohibited any of the lawyers for Sheikh Abdel
20 Rahman from ever seeing him again?
21 MR. DEMBER: Objection, hearsay, your Honor.
22 THE COURT: Do you have any knowledge of that?
23 THE WITNESS: No, I don't think -- no.
24 Q. I'm sorry. I didn't hear your answer. You don't know?
25 A. I don't know.
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46OMSAT3 Francisco - cross
1 MR. TIGAR: Thank you very much. No further
2 questions.
3 MR. PAUL: We have no questions.
4 MR. DEMBER: May I have a moment, your Honor?
5 THE COURT: Yes.
6 REDIRECT EXAMINATION
7 BY MR. DEMBER:
8 Q. Mr. Francisco, do you have Exhibit No. 7 before you?
9 A. Yes.
10 MR. DEMBER: Could we display that again for the jury?
11 THE COURT: Yes.
12 Q. Just to reorient the jury, could we focus in on the date at
13 the bottom of the first page of that exhibit. And that date is
14 May 16, is that correct, Mr. Francisco?
15 A. Correct.
16 Q. 2000.
17 Could we turn to the next page of the exhibit. And
18 what is that page, sir?
19 A. It is a cover letter.
20 Q. And what's the date on that particular page?
21 A. May 26, 2000.
22 Q. Do you know of your own knowledge when that letter and that
23 version of that affirmation arrived at the U.S. Attorney's
24 Office?
25 A. No.
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46OMSAT3 Francisco - redirect
1 Q. Do you know whether or not that date on the cover letter,
2 May 26, 2000, is an accurate date or a typo?
3 A. No, I do not know.
4 MR. DEMBER: Nothing further, your Honor.
5 MR. TIGAR: I have no recross, your Honor. I'd like
6 the witness held. I have a matter for the break.
7 THE COURT: Ladies and gentlemen, it is now time for
8 our mid-morning break, so please remember my continuing
9 instructions not to talk about the case and keep an open mind.
10 All rise, please. Please follow Mr. Fletcher to the
11 jury room.
12 (Jury not present)
13 THE COURT: The witness can step down and leave the
14 courtroom.
15 MR. TIGAR: Yes, your Honor.
16 The reason I wanted the witness held is that the
17 government has consistently taken the position that the
18 affirmation arrived in the U.S. Attorney's Office on or about
19 May 29. They know that fact, your Honor. They have told it to
20 us. And if Mr. Dember -- somewhere in that office there is a
21 log that shows when that came in.
22 What happened here is that the witness was being asked
23 to suggest something that, I respectfully submit, the
24 government knows is not true. And I would like the government
25 to go back to their office and clarify for us based on their
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1 records when it arrived. There is, of course, the presumption
2 and the rest of it. And if they truly don't know and if that
3 last redirect was done in good faith, then I'll stand down.
4 But from the beginning of the case I've understood that the
5 29th was the date.
6 MR. DEMBER: Your Honor, I never asked a question that
7 is not in good faith and I resent the accusation. As far as we
8 know, there is no such log of when this letter came in. There
9 is none. And we have no knowledge of when precisely it came
10 in. And that's frankly all I can say about the issue. But I
11 can assure this Court that I asked every question and will
12 always ask every question and make every argument in absolute
13 good faith.
14 THE COURT: The government represents it searched and
15 there is no log and, as I see the last comment before
16 Mr. Dember's comment, it was: And if they truly don't know and
17 if that last redirect is in good faith, then I'll stand down.
18 MR. TIGAR: I'm standing down. And at the break, at
19 the appropriate time, we will go back through the discovery
20 records and check my recollection. If I am right, I'll come
21 back and say it. If I'm wrong, I will admit it.
22 THE COURT: I am not sure what record you want to
23 check as to --
24 MR. TIGAR: Your Honor, we have received hundreds of
25 thousands of documents in this case. I was speaking from my
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1 recollection of what had been produced to us, And I am going to
2 go back and check.
3 THE COURT: That's fine. But I'm just not sure what
4 it was that you thought you had gotten.
5 MR. TIGAR: Your Honor, the dating of those documents
6 and with my imperfect memory I can tell you it has been a great
7 concern to us throughout. We have been operating on our side
8 on the assumption, based on our review -- and that's going to
9 mean going back several levels to where these things come
10 from -- that May 26 was a date of mailing, May 29 was the day
11 of receipt. If that turns out to be an assumption not based on
12 something received from the government, which is my impression,
13 as I say, I will stand down.
14 I also want to say that I was raising a question, and
15 if I was understood by Mr. Dember as attacking his professional
16 integrity, I wish to apologize to him because that was not my
17 intention.
18 THE COURT: It is not necessary to apologize on either
19 side. I take the representation that the question was asked in
20 good faith, And the government has searched. Parties can, of
21 course, continue to search whatever documents there are out
22 there. There has been searches conducted on both sides. And
23 the parties obviously can argue the facts to the jury based
24 upon what the witnesses say and what the documents say.
25 There was also some dispute about this issue on the
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1 very first motion to dismiss the first indictment.
2 MR. TIGAR: Yes, your Honor. I think that was more
3 about the 2000 date. But, yes, your Honor, it was --
4 THE COURT: No. There were two issues. There were
5 two issues. There was the one about the 2000 date, and there
6 was also the issue as to whether this was a promissory
7 statement or a statement about something that already happened.
8 So I pass that on to all of you.
9 MR. TIGAR: May I resume --
10 THE COURT: I don't recall, because it was a motion to
11 dismiss, that there were any -- it would be wrong for me to try
12 and retrieve what all of the briefing was at that time, but the
13 parties can also explore that.
14 MR. TIGAR: May I reserve the right to apply for
15 recross, your Honor?
16 THE COURT: Sure.
17 MR. TIGAR: May the witness remain under subpoena and
18 may he be admonished?
19 THE COURT: He really doesn't have to be subpoenaed.
20 He works close by, and I'm sure that he is available and the
21 government will make him available. And I will certainly
22 instruct him that there is a possibility he may be recalled, so
23 please don't talk about the substance of his testimony. I
24 don't think he is currently actually under subpoena, but I will
25 certainly tell him -- at least I didn't hear he was under
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1 subpoena -- and I will certainly tell him not to talk about the
2 substance of his testimony.
3 Could the witness be just brought back in briefly?
4 MR. MORVILLO: If I may, your Honor.
5 THE COURT: Yes.
6 Hi, Mr. Francisco. I'm going to excuse you now, but
7 there is the possibility that you could be recalled, so please
8 don't talk about the substance of your testimony.
9 THE WITNESS: Yes, your Honor.
10 THE COURT: Thank you. You may step down.
11 (Witness excused)
12 THE COURT: We will take a break, and I don't think it
13 is necessary for me to tell the jury anything except to ask the
14 government to present its next evidence.
15 No objections to that.
16 See you shortly.
17 (Recess)
18 MR. BARKOW: Your Honor, may I step out and see where
19 my colleagues are for a minute?
20 THE COURT: Sure.
21 MR. BARKOW: I'm sending out some interns to go find
22 them.
23 THE COURT: I don't want to begin without all of the
24 lawyers.
25 While I'm waiting, there was one scheduling issue that
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1 I wanted to take up with counsel.
2 Mr. Barkow, you're expecting Mr. Morvillo and
3 Ms. Baker?
4 MR. BARKOW: Ms. Baker is not going to be in court
5 today, but Mr. Morvillo is out in the hall.
6 THE COURT: Let me talk to you at the side bar about a
7 question about the scheduling.
8 (At the side bar)
9 THE COURT: Juror 39 reported to Mr. Fletcher, seat
10 No. 9, that she received a Mother's Day gift of a trip on
11 September the 27th. She told Mr. Fletcher. Mr. Fletcher asked
12 if it could be rearranged, and she said not. That would be one
13 week. And I think that there are some holidays that week, but
14 I have not checked the calendar.
15 MR. FALLICK: Rosh Hashanah is Thursday and Friday and
16 Yom Kippur is on a Saturday.
17 MS. SHELLOW-LAVINE: I have got them written down at
18 my desk.
19 THE COURT: This is something I probably should talk
20 to the juror myself about at the end of the lunch hour to ask
21 if there is anything that can be done about rearranging it,
22 unless everyone thinks that it is just great to take that week
23 off.
24 MR. BARKOW: Your Honor, my calendar says Rosh
25 Hashanah is Thursday, September 16 and Yom Kippur is Saturday,
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1 September 25.
2 MS. SHELLOW-LAVINE: Your Honor, it would appear that
3 Rosh Hashanah is September 16 and Yom Kippur would be the 30th.
4 THE COURT: The 30th falls in the middle of that week.
5 MS. SHELLOW-LAVINE: It is a Saturday.
6 MR. BARKOW: September 27 is a Monday. My calendar
7 says September 25 for Yom Kippur.
8 THE COURT: I bring it to your attention.
9 MR. RUHNKE: Your Honor, have we resolved the July 1
10 issue?
11 THE COURT: Not quite yet.
12 (In open court)
13 THE COURT: Bring in the jury.
14 One other issue which I bring to your attention. Mr.
15 Blum is attempting to get the cable to go on the other table.
16 It is a proprietary cable. He couldn't get it done yesterday.
17 He is still trying to do it as soon as possible.
18 MR. RUHNKE: Thank you.
19 MR. BARKOW: Your Honor, before the jury comes in, we
20 would just like to explain to the Court how we intend to
21 proceed at this point. The parties have entered a stipulation
22 of the tapes and transcripts that we intend to turn to next.
23 It has an edit on there that we have agreed to, so we don't
24 have a final form in print.
25 What we propose at this point is to read it and
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1 ultimately mark it as an exhibit after we make the correction,
2 which would then be actually admitted as a document. And then
3 in terms of the presentation of these items to the jury, we
4 propose to play a portion of a videotape for several minutes.
5 It is maybe a minute or two. And then read the transcripts of
6 the speeches and conversations to the jury.
7 THE COURT: Who will be reading?
8 MR. BARKOW: As Mr. Tigar pointed out this morning,
9 they were quite long. We were hoping to rotate. I think I'm
10 starting and someone will hopefully relieve me.
11 THE COURT: That's fine. And you will mark what
12 you're reading as an exhibit.
13 MR. BARKOW: Yes, your Honor. We can display it on
14 the screen, I believe. We can display it on the screen as I
15 read, I believe.
16 THE COURT: I thought it has an edit.
17 MR. BARKOW: The stipulation. That I cannot display
18 as I read because it has an edit. I was speaking of the
19 transcripts.
20 THE COURT: If you're reading a stipulation and the
21 stipulation is going to be offered in evidence, it should be
22 marked, and you can read it as edited, and then the original
23 can be offered as an exhibit.
24 MR. BARKOW: Right.
25 MR. TIGAR: May I be reminded, please, is it within
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1 the Court's order that a member of the trial team play Sheikh
2 Abdel Rahman?
3 THE COURT: Yes. Not one of the defendants. You will
4 then offer the stipulation and I'll explain -- I'll explain,
5 before you read the stipulation, that a stipulation is an
6 agreement among the parties. There are two kinds of
7 stipulations, a stipulation of fact or of testimony. This is a
8 stipulation of fact. The jury is to take these facts as true
9 for purposes of the case, and then you can read the
10 stipulation, offer it, and I'll receive it as an exhibit. But
11 you can make sure that it is typed correctly with the edit
12 before whatever is to be shown to the jury should the jury ever
13 ask to see it.
14 MR. BARKOW: Yes.
15 Your Honor, would you like me to read from the podium?
16 THE COURT: Yes.
17 Are we all ready?
18 MR. BARKOW: Your Honor, I was planning on reading
19 both the unidentified male and Abdel Rahman parts and I was
20 going to preface.
21 THE COURT: Yes.
22 (Jury present)
23 THE COURT: The government may now present its next
24 witness or evidence.
25 MR. BARKOW: Thank you, your Honor.
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1 Your Honor, at this point I'd like to read Government
2 Exhibit 213, which is a stipulation between the parties.
3 THE COURT: Ladies and gentlemen, let me just give you
4 a brief instruction about stipulations and what stipulations
5 are. Stipulations are agreements among the parties. There are
6 two kinds of stipulations. There is what is called a
7 stipulation of fact and then there is a stipulation of
8 testimony. A stipulation of fact is the parties agree that
9 certain facts are true, and you are to accept them as true for
10 purposes of the case. A stipulation of testimony is an
11 agreement among the parties that if called a certain witness
12 would testify as follows, and you are to take it that the
13 witness would testify in that way. The weight of any testimony
14 is, of course, always for you.
15 And I will explain, again, in my final instructions
16 what stipulations are.
17 At this point I understand that this is going to be a
18 stipulation of fact that the parties have agreed that certain
19 facts are true and you are to accept them as true for purposes
20 of this case.
21 MR. BARKOW: May I proceed, your Honor?
22 THE COURT: Yes.
23 MR. BARKOW: Your Honor, the government offers
24 Government Exhibit 213.
25 THE COURT: No objection. Government Exhibit 213
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1 received in evidence.
2 (Government's Exhibit 213 received in evidence)
3 MR. BARKOW: The parties hereby stipulate and agree
4 that the audio and videotapes marked as Government Exhibits
5 201, 202, 203, 204, 207; 208, 209, 210, and 211 are tapes
6 containing either sermons and speeches delivered by Omar Abdel
7 Rahman, or intercepted telephone conversations between Abdel
8 Rahman and other persons. Each of these tapes was received in
9 evidence at Abdel Rahman's trial in 1995, and Lynne Stewart was
10 present at the time each was received in evidence.
11 Government Exhibits 201, 202, and 203 were seized
12 pursuant to a court-authorized search warrant at the residence
13 of Nabil El Masry.
14 Government Exhibit 204 was obtained from Danish
15 authorities.
16 Government Exhibit 211 was obtained from an individual
17 who testified at Abdel Rahman's 1995 trial.
18 Government's Exhibits 207 through 210 were intercepted
19 telephone conversations between Abdel Rahman and other persons
20 obtained pursuant to a court-authorized wiretap.
21 The transcripts marked as Government Exhibits 201T,
22 202T, 203T, 204T, 207T, 208T, 209T, 210T, and 211T are true and
23 accurate translations from Arabic into English of the tapes
24 marked as Government Exhibits 201, 202, 203, 204, 207, 208,
25 209, 210, and 211 respectively.
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1 Government Exhibits 201T, 202T, 203T, 204T, 206T,
2 207T, 208T, 209T, 210T, and 211T were prepared by qualified
3 expert Arabic to English translators employed by the Federal
4 Bureau of Investigation. Each of these transcripts was
5 received in evidence at Abdel Rahman's trial in 1995, and Lynne
6 Stewart was present at the time each was received in evidence.
7 The transcript marked as Government Exhibit 200T is a
8 through and accurate translation of Arabic into English of a
9 videotape of a speech delivered by Omar Abdel Rahman. That
10 videotape, which was seized pursuant to a court-authorized
11 search warrant at the residence of Nabil El Masry, was received
12 in evidence at Abdel Rahman's trial in 1995, and Lynne Stewart
13 was present at the time it was received in evidence.
14 The transcript marked as Exhibit 2000T was prepared by
15 a qualified expert Arabic to English translator employed by the
16 Federal Bureau of Investigation. This transcript was also
17 received in evidence at Abdel Rahman's trial in 1995, and Lynne
18 Stewart was present at the time it was received in evidence.
19 All voice attributions on Government Exhibits 200T, 201T, 202T,
20 203T, 204T, 207T, 208T, 209T, 210T, and 211T, that is, all
21 identifications on the transcripts of who is speaking at any
22 particular time, truly and accurately identify the speakers on
23 the corresponding tapes.
24 After Government Exhibits 200T, 201T, 202T, 203T,
25 204T, 207T, 208T, 209T, 210T, and 211T were admitted into
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1 evidence during Abdel Rahman's trial, they were read aloud to
2 the jury in that case. Defendant Lynne Stewart was present
3 during the reading of each of these transcripts.
4 Agreed to and stipulated by all the parties.
5 Your Honor, at this point the government offers into
6 evidence Government Exhibits 201, 202, 203, 204, 207, 208, 209,
7 210, 211, 201T, 202T, 203T, 204T, 207T, 208T, 209T, 210T, and
8 211T.
9 THE COURT: All right. Government Exhibits 213
10 received in evidence, and Government Exhibits 201 through 204
11 and 207 through 211, 201T through 204T, and 207T through 211T
12 received in evidence.
13 (Government's Exhibits 201-204, 207-211, 201T-204T,
14 and 207T-211T received in evidence)
15 MR. BARKOW: Your Honor, at this point the government
16 would ask that we be permitted to publish to the jury about a
17 minute of Government Exhibit 204 of the videotape.
18 THE COURT: All right.
19 MR. BARKOW: May Ms. Griffith start the tape.
20 (Videotape played)
21 MR. BARKOW: May we stop the tape, please.
22 Your Honor, at this point may I publish to the jury by
23 reading Government Exhibit 204T, which is the transcript
24 corresponding with that tape?
25 THE COURT: Yes.
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1 MR. BARKOW: May Ms. Griffith publish the pages as I
2 go, as I read?
3 THE COURT: Yes.
4 (At this point, Government Exhibit 204T, in evidence,
5 was read to the jury by Mr. Barkow)
6 (Continued on next page)
7 THE COURT: Ladies and gentlemen, members of the jury,
8 we will take our luncheon break today. Please remember my
9 continuing instructions, don't talk about the case at all or
10 anything to do with it. Please remember always to keep an open
11 mind until you have heard all of the evidence, I have
12 instructed you on the law, you've gone to the jury room to
13 begin your deliberations.
14 Have a very good lunch. I look forward to seeing you
15 this afternoon.
16 All rise, please, and please follow Mr. Fletcher.
17 (Jury not present)
18 THE COURT: Please be back at quarter of two and I
19 will see you at lunch.
20 (Luncheon recess)
21
22
23
24
25
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1 AFTERNOON SESSION
2 2:00 p.m.
3 (At the side bar)
4 THE COURT: Let me follow up on the issue of
5 scheduling. I checked my calendar when I got back to the
6 office and the week of September 27 doesn't contain any
7 holidays. That's a full week. I'm prepared to call the juror
8 in and try and see what can be done about rescheduling that
9 trip. I can do it now, before we start for the afternoon. I
10 sort of not like to do it at the end of the day just because I
11 don't want to delay the transportation.
12 MR. RUHNKE: We had a juror that had to leave promptly
13 at 4:30. That's today?
14 THE COURT: Yes. Thank you. Someone has to leave
15 promptly at 4:30.
16 I think I should talk to the juror about it promptly.
17 Does anyone have any different view?
18 MR. FALLICK: No, your Honor.
19 THE COURT: I don't meet with a juror without at least
20 the lawyers present. And if you want your clients to be there,
21 your clients can be there, too, obviously, or if you wish to
22 waive your client's presence you can do that.
23 MR. TIGAR: Your Honor, we will just send one lawyer
24 for all the defendants so we don't mob the juror under the
25 circumstances.
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1 THE COURT: Fine, if you agree to that.
2 MR. RUHNKE: That's fine.
3 MR. FALLICK: Yes, we do.
4 THE COURT: One person for the government.
5 (In the robing room)
6 THE COURT: Mr. Fletcher, can you ask juror 39 to come
7 in.
8 (Juror No. 39 present)
9 THE COURT: Good afternoon, juror 39.
10 A JUROR: Good afternoon.
11 THE COURT: Whenever I talk to a juror I always have
12 some of the lawyers here. I always do that.
13 Mr. Fletcher advises me that you received a nice
14 Mother's Day gift.
15 A JUROR: From my son, yes.
16 THE COURT: On September 27?
17 A JUROR: Yes. A Monday, starts a Monday.
18 THE COURT: And how long is the trip?
19 A JUROR: Just that week.
20 THE COURT: Could you possibly try to change it or
21 delay it? The reason that I ask you to do that is that it may
22 well be, in terms of what the time estimates are for the case,
23 that the case is still going on. And I would have to see what
24 we do about that because there are a lot of people whose sort
25 of schedules depend on --
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1 A JUROR: I didn't know when I first came. It was a
2 surprise. I didn't know. It was a surprise. My friend, she
3 didn't tell me. He got in touch with my friend. That's why I
4 didn't know. I had reached him yesterday at work. He lives in
5 California. It was a surprise. I will see.
6 THE COURT: Could you? I can't tell you how much I
7 appreciate your efforts to see --
8 A JUROR: I don't want him to lose his money.
9 THE COURT: I don't want you to be concerned about
10 this at all. We will work something out. But I really
11 appreciate your efforts at --
12 A JUROR: I will see what I can do next week.
13 THE COURT: That's fine.
14 I want to make sure that this doesn't weigh on you,
15 that you're concerned about it. Don't worry about it. Do what
16 you can to change it. It would really be helpful for you to do
17 that. So I appreciate you're looking into it and I
18 congratulate you on receiving the Mother's Day gift.
19 Thank you.
20 Of course, never tell any of the jurors anything that
21 we talked about. Thank you.
22 (Juror 39 not present)
23 MR. PAUL: It is what it is. I guess we will know
24 next week. Thank you, all.
25 (In open court)
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1 THE COURT: Are we ready to bring in the jury?
2 MR. MORVILLO: Your Honor, I wanted to raise one
3 point, if I could.
4 The government learned over the lunch break today,
5 based on a conversation that Mr. Barkow had with a relative,
6 that it is published on the Washington Post website in an AP
7 article that Patrick Fitzgerald interviewed the president of
8 the United States in the oval office this morning.
9 My understanding, based on that, is that there is
10 going to be some press reports about it tomorrow. And the
11 government would not have an objection -- I have informed the
12 defense of this -- to some instruction to the jury
13 appropriately regarding those news reports, if they want it.
14 The government did not know that that was the reason why Mr.
15 Fitzgerald was going to be in Washington today. He never told
16 us. And I just wanted to put that on the record.
17 THE COURT: Well, if the defendant want me to add an
18 instruction at the end of the day about not looking at or
19 listening to anything to do with the case, including any
20 witness or person that they have heard described in the case --
21 MR. RUHNKE: That's what we would like, your Honor. I
22 am not sure how it is going to work out in the real world, but
23 I can't think of any other way of doing it that doesn't do more
24 damage.
25 MR. TIGAR: Your Honor, we would couple that with a
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1 request that: And if you should happen to see anything, please
2 let Mr. Fletcher know. Our concern is that Mr. Fitzgerald's
3 name will be buried pretty deep in an article that starts with
4 oval office and President of the United States. So jurors
5 might come across it with all good faith. It may then be
6 important or necessary to give an instruction.
7 THE COURT: Okay.
8 MR. DEMBER: One other matter, your Honor.
9 THE COURT: Yes.
10 MR. DEMBER: Your Honor, after we finish reading from
11 Exhibit 204T, we will be moving on to some other speeches that
12 have been admitted in evidence. And we are proposing that we
13 not read from beginning to end, that in fact we read excerpts
14 from those transcripts, and I ran that by the defense
15 attorneys. They didn't seem to agree with our side on that
16 particular issue, so we are coming to the Court.
17 We would prefer -- obviously, each exhibit is in
18 evidence in full and certainly defense in their case can read
19 whatever sections they would want to read, but we prefer to
20 read just a more limited excerpt than I -- then the full
21 document. That's our proposal.
22 MR. RUHNKE: Our view is that the government either
23 ought to just move in the speeches and refer to them in
24 summation, or read them in their entirety. It is not a
25 completeness objection at all because the documents are in
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1 evidence. It is a question of government is not trying to move
2 into evidence only part of a document. They are moving the
3 whole document in. If they are moving the whole document in,
4 then I think they ought to read the whole document, or not read
5 any of it instead of picking and choosing what they want to
6 read. If the document is relevant, it ought to be read to the
7 jury in its entirety and not selectively read. It is almost
8 like summation in the middle of trial, here are the documents
9 we have moved in. Here are the important points from the
10 document. We think they should either forego reading it at
11 all, which is something that we would heartly approve.
12 But if they are going to read, they should not read
13 selectively and say, these are the good parts, or these are the
14 parts that we want you to remember now. If the document is
15 going in, it should go in either as a document to be referred
16 to later in summations or by the witnesses or should be read in
17 its entirety.
18 MR. DEMBER: Your Honor, through Mr. Fitzgerald and
19 Mr. Francisco we have read sections of documents that are in
20 evidence. This would just be a continuing -- continuation of
21 that practice. We don't see a distinction, frankly.
22 THE COURT: How was it done at the Rahman trial? Was
23 the entire transcript read?
24 MR. MORVILLO: The entire transcript was read into
25 evidence at the Rahman trial. Mr. Fitzgerald testified to that
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1 yesterday.
2 MR. TIGAR: Your Honor, I would add this, that I had
3 been planning at some point to move to strike the three or four
4 of these speeches on the grounds that the first three or four
5 or five were all that were necessary or appropriate. I was
6 going to make a Rule 403 objection. If I'm regarded as having
7 waived that by not having said the right word, well, I'll live
8 with the consequences of my own indolence, but the advisory
9 committee notes to Rule 106 -- this is not a 106 issue. I
10 cannot find any cases on this issue. But the advisory
11 committee notes, second paragraph, do talk about the misleading
12 impression created by taking matters out of context, and the
13 inadequacy of repair work when delayed to a point later in the
14 trial. So at least the rules committee thought that the
15 concerns Mr. Ruhnke raised are true.
16 THE COURT: Let me make a couple of observations.
17 First, the exhibits are in evidence at this point and
18 whatever rulings I had made in the course of motions in limine
19 I made, but I don't recall other than rejecting, for example,
20 arguments that statements that were made in the course of the
21 trial of Sheikh Omar Abdul Rahman should be excluded because
22 they were made in the course of the trial.
23 In any event, whatever ruling there were, the parties
24 reached a stipulation yesterday. And we now have the exhibits
25 in evidence.
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1 Now, the question is how they should be referred to,
2 how they should be presented to the jury. I also, by the way,
3 explicitly this morning said if there was a 404(b) problem and
4 someone wanted a limiting instruction they should present that
5 to me. But, in any event, the parties say it is not a
6 completeness objection, but I couldn't, I believe, take the
7 government's statement that we want to read portions and say,
8 okay, you can read portions and the defendants can read
9 portions in the course of their own case without a very
10 detailed analysis, in my mind, of what portions the government
11 wants to read and what portions the defendants would want me to
12 read at the same time. Even though you don't call it 106
13 completeness, I agree with the phrase from the advisory
14 committee notes that I couldn't reasonably ask -- I couldn't
15 reasonably have only portions read to the jury without the
16 other portions read, which the defendants wanted me to read at
17 the same time.
18 So there is not an agreement to read only portions. I
19 think it would be useful to all parties in terms of expedition
20 not to have to read the whole transcript. But when we left
21 yesterday I thought that it was exactly the sort of 106 issue.
22 We called it 106, but I'll call it either 106 or somewhere else
23 in the 400 series that the parties were going to say, you know,
24 we want to read this, you want to read that. If there is a
25 dispute we will give it to the judge. I'm not enthusiastic
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1 about that. But in fairness I would do that. But unless there
2 is an agreement I can't simply have the government in a large
3 document like this read only a portion because there would be
4 no opportunity, unlike with Mr. Fitzgerald and Mr. Francisco,
5 to get up on cross and say, well, read the next paragraph.
6 Also, I didn't think that any of the excerpting was in
7 any sense incomplete when the witnesses were reading and it
8 wasn't incomplete. And if it were incomplete defense attorneys
9 would have the opportunity to get up in the middle of it and
10 say, could we ask the witness to read the next paragraph. But
11 that's not what I'm being asked to do with these transcripts.
12 I think it would be in everyone's interest if one side
13 wants part of it read and the other side wants part of it read,
14 to have all of those parts read at the same time rather than
15 having to read the entire transcript. Expedition would be
16 useful. But I can't do that now. And so you should think
17 about that and talk about that.
18 MR. DEMBER: Your Honor, if the defense had excerpts
19 they want us to read from the transcripts, we would gladly do
20 that.
21 THE COURT: It may be that the defendants really do
22 want the whole transcript read. So be it.
23 MR. BARKOW: Your Honor, before the jury comes in, can
24 I raise a quick scheduling issue about later in the afternoon?
25 It appears that it is likely that the reading of these
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1 speeches, regardless of what is read, is going to take some
2 time, and our next witness would likely be the agent who was
3 the lead for the search of the Sattar search.
4 The parties, as I've mentioned before, have been
5 discussing those exhibits. Those discussions are not complete.
6 And in discussions specifically with Mr. Fallick -- but I have
7 talked about it generally with all counsel -- we would -- at
8 least the government and Mr. Fallick think that it might be
9 advisable to have that witness testify next week after Mr.
10 Fitzgerald is done.
11 The reason I ask that now is that witness is sitting
12 in my office. I didn't want to excuse her before I raised this
13 with the Court. Whenever we hit the end of the speech, it
14 might not be the end of the day. Rather than have her start
15 testifying, I was going to have her leave now.
16 THE COURT: That sounds fine because you have other
17 material that you can move through while you read that witness.
18 (Continued on next page)
19
20
21
22
23
24
25
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1 MR. BARKOW: I neglected to offer Exhibit 200D, which
2 is contained in the stipulation, and when I was done reading
3 this speech I was going to offer that on the record.
4 THE COURT: Are you sure --
5 MR. BARKOW: I didn't say it, so I don't think -- I
6 listed 201 through 204 and 207 through 211. Actually I am
7 being told by Mr. Morvillo that the court's numbers track mine.
8 I didn't mention 200D. I mentioned it in the stipulation but I
9 just didn't offer it.
10 THE COURT: Okay. You can certainly do that at the
11 outset.
12 Anything else before we bring in the jury?
13 Just to keep the record straight, I had reserved on
14 those other photographs, right?
15 MR. TIGAR: Yes, your Honor.
16 THE COURT: And 2300A through D.
17 MR. TIGAR: Yes, sir.
18 THE COURT: Does the government want to withdraw that
19 offer?
20 MR. MORVILLO: Your Honor, they have been identified
21 as Sheikh Abdel Rahman by Mr. Fitzgerald. The evidence will be
22 that they were found during the search of defendant Mohammed
23 Yousry's residence. They are discussed on some of the
24 telephone calls and so, as a result, the government would not
25 withdraw them or perhaps would re-offer them at a later date,
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1 but it is the government's intent to put these photographs into
2 evidence at some point.
3 THE COURT: Okay.
4 Well, at this point there is no foundation for them
5 because all that the witness did was to identify a person as
6 Sheikh Rahman. Whether the photographs were a fair an accurate
7 description of the scene depicted at the time the witness
8 couldn't say. So there is an insufficient foundation for the
9 photographs at this point.
10 MR. MORVILLO: I will offer them at the time that we
11 put in the search evidence from Mr. Yousry's apartment.
12 MR. TIGAR: May we take it that the offer is withdrawn
13 then, your Honor?
14 THE COURT: Yes. Right?
15 MR. MORVILLO: That is correct.
16 THE COURT: Okay. 2300A through D withdrawn without
17 prejudice.
18 Okay, anything else?
19 The reason to take these things up now is because
20 counsel reminded me we are stopping promptly at 4:30. We can
21 take up any other issues after the jury has left.
22 MR. BARKOW: Should I go to the podium, your Honor,
23 while the jury comes in?
24 THE COURT:: Sure.
25 MR. BARKOW: May I bring water to the podium?
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1 THE COURT: Yes.
2 Okay, let's bring in the jury.
3 (In open court; jury present)
4 THE COURT: Please be seated all.
5 Good afternoon, ladies and gentlemen. Good to see
6 you.
7 All right, Mr. Barkow.
8 MR. BARKOW: Thank you, your Honor.
9 Before I continue reading I offer Government Exhibit
10 200T into evidence.
11 THE COURT: Is it 200 and 200T?
12 MR. BARKOW: Just 200T, your Honor.
13 THE COURT: All right, Government Exhibit 200T is
14 received in evidence.
15 (Government's Exhibit 200 T received in evidence)
16 MR. BARKOW: May I continue with Exhibit 204T, your
17 Honor?
18 THE COURT: Yes.
19 (At this point, the reading of Government Exhibit 204T
20 in evidence was continued)
21 MR. BARKOW: Your Honor, I think Mr. Morvillo is going
22 to read the next transcript.
23 THE COURT: All right.
24 MR. MORVILLO: Your Honor, I am going to read
25 Government Exhibit 201T.
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1 THE COURT: What is the number again please?
2 MR. MORVILLO: 201T. The wrong one is up right now.
3 THE COURT: 201T, okay.
4 MR. MORVILLO: May I begin?
5 THE COURT: Yes.
6 (At this point, Government Exhibit 201T in evidence
7 was read to the jury by Mr. Morvillo)
8 (Continued on next page)
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1 MR. MORVILLO: Your Honor, it is 3:30. Do you want to
2 take a break?
3 THE COURT: All right.
4 Ladies and gentlemen, we will break for 10 minutes.
5 As I've told you, we will break promptly at 4:30 today.
6 Have a good break. Don't talk about the case, keep an
7 open mind. I look forward to seeing you shortly.
8 All rise, please, and please follow Mr. Fletcher to
9 the jury room.
10 (Jury not present)
11 THE COURT: 10 minutes. See you shortly.
12 (Recess)
13 (At the side bar)
14 THE COURT: The jury raised an issue with Mr. Fletcher
15 over the fact that sketch artists appear to be looking at them,
16 and so they expressed concern that the sketch artists would
17 reveal them. And they also asked the marshals whether the
18 sketch artists would be able to draw them, but use a block for
19 their face, and the marshal said, you have to take anything up
20 with the judge.
21 So on at least one other occasion in the course of
22 this case I've told sketch artists to remember that they are
23 not to sketch the jury. And if I have to issue an order and
24 give it out to the people who regularly attend, I will. I
25 didn't think that that was necessary.
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1 MR. STERN: I doubt if it is. They don't usually draw
2 the jurors. These are people that have been doing this a long
3 time. I would be shocked that they would be violating the rule
4 when it was set out.
5 MR. PAUL: When was this raised today?
6 MR. BARKOW: I had talked to one of them specifically
7 and I told them they should not sketch the jurors, and follow
8 your Honor's order.
9 THE COURT: I thought I saw a sketch artist today,
10 this morning, looking at me with one of those binoculars. I
11 don't think -- I don't think it was yesterday. I thought it
12 was this morning.
13 MR. RUHNKE: I don't remember.
14 THE COURT: I'm happy to tell the jurors that the
15 sketch artists have been instructed not to draw them in the
16 course of my regular little talk at the end of the day. I'll
17 give a little talk to the sketch artists now, too.
18 MR. TIGAR: Your Honor, during the last reading I did
19 get up and leave the courtroom. I don't know if your Honor
20 noticed. It is all right with Ms. Stewart if I do so. This is
21 a medication issue and I don't want to interrupt the whole
22 proceedings if I have to leave for a couple of minutes.
23 THE COURT: That's fine. And if you want me to call a
24 break because you need to go, just ask me and I'm happy to stop
25 the proceedings.
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1 MR. TIGAR: I understand that, your Honor.
2 THE COURT: Okay.
3 (In open court)
4 THE COURT: We are about to call in the jury.
5 Let me just make a brief announcement which I have
6 made before, and that is if there are any sketch artists -- and
7 from time to time we get sketch artists, of course -- they are
8 to respect the jurors' confidentiality and not sketch the
9 jurors. And the marshals can check to make sure that that's
10 carried out. And I say that because I will explain that to the
11 jurors also.
12 Let's bring in the jury.
13 (Jury present)
14 THE COURT: Mr. Morvillo.
15 MR. MORVILLO: May I continue, your Honor?
16 THE COURT: Yes.
17 (At this point, Exhibit 201T in evidence continued to
18 be read into the record by Mr. Morvillo)
19 (Continued on next page)
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1 THE COURT: All right.
2 Ladies and gentlemen, it is 4:22 so I told you that we
3 would break in time so that you could make sure that you left
4 by 4:30, so we will break now.
5 This is the first time that we have broken before a
6 long weekend. Obviously we are not sitting tomorrow, which is
7 Friday. We are not sitting on the weekend. We resume on
8 Monday and I am sure the transportation will bring you here a
9 little before 9:30.
10 It's very important that you follow my instructions
11 very, very carefully. Please remember not to talk about the
12 case or anything to do with it. Don't let anyone talk to you
13 about the case. Remember, don't look at or listen to anything
14 about the case or any witnesses or persons that you may hear
15 describes in the case. If you should see something
16 inadvertently, simply turn away. If you see anything unusual
17 or someone should try to talk to you, you can raise it with Mr.
18 Fletcher. It's very important to follow these instructions.
19 As I have told you before, it's so important that your
20 decision is to be based solely upon the evidence or lack of
21 evidence in the case, and that is what you hear from the
22 witness stand, what you hear from exhibits in evidence while
23 all of you are present with me and everyone else here in the
24 courtroom and we are listening to the evidence.
25 We have had sketch artists here from time to time but
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1 the sketch artists are instructed not to sketch you in any sort
2 of way that would reveal you, and these are regular people who
3 regularly come to court and are professionals who do this sort
4 of thing.
5 Remember always to keep an open mind until you have
6 heard all of the evidence, I have instructed you on the law,
7 and you have gone to the jury room to begin your deliberations.
8 Fairness and justice to the parties requires that you do that.
9 With that, have a very good weekend and I look forward
10 to seeing you first thing on Monday morning.
11 All rise please.
12 (Jury left the courtroom)
13 THE COURT: Please be seated all.
14 Please be here at a quarter after 9 on Monday.
15 Is there anything further for me?
16 MR. TIGAR: Your Honor, does the government know
17 whether they are going to start right away with Mr. Fitzgerald
18 or whether they are going to continue reading or what we may
19 expect on Monday morning?
20 MR. MORVILLO: We plan on beginning first thing Monday
21 morning with Mr. Fitzgerald, your Honor.
22 THE COURT: Okay.
23 MR. MORVILLO: Does the defense have any idea how long
24 cross examination is going to be as per his schedule?
25 MR. TIGAR: Mr. Stern says 45 minutes. He intends to
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1 go first. I say about an hour, and I have figured out how to
2 use that machine over there, your Honor, so it will be an hour.
3 THE COURT: Okay. All right.
4 Anything else?
5 See you all on Monday morning at a quarter after 9.
6 (Trial adjourned to June 28, 2004 at 9:15 a.m.)
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1 INDEX OF EXAMINATION
2 Examination of: Page
3 GERARD C. FRANCISCO
4 Direct By Mr. Dember . . . . . . . . . . . . 2398
5 Cross By Mr. Stern . . . . . . . . . . . . . 2435
6 Cross By Mr. Tigar . . . . . . . . . . . . . 2438
7 Redirect By Mr. Dember . . . . . . . . . . . 2452
8 GOVERNMENT EXHIBITS
9 Exhibit No. Received
10 1, 2, 3, 4, 5, and 10-20 . . . . . . . . 2398
11 213 . . . . . . . . . . . . . . . . . . . 2463
12 201-204, 207-211, 201T-204T, and 207T-211T 2465
13 200 T . . . . . . . . . . . . . . . . . . 2479
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