29 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 14 of the proceeding and Day 5 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 29, 2004
8 9:25 a.m.
9
9
10
10 Before:
11 HON. JOHN G. KOELTL
11
12 District Judge
12
13
13 APPEARANCES
14
14 DAVID N. KELLEY
15 United States Attorney for the
15 Southern District of New York
16 ROBIN BAKER
16 CHRISTOPHER MORVILLO
17 ANTHONY BARKOW
17 ANDREW DEMBER
18 Assistant United States Attorneys
18
19 KENNETH A. PAUL
19 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
20
21 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
22
23 DAVID STERN
23 DAVID A. RUHNKE
24 Attorneys for Defendant Yousry
25
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: I assume that I would begin this morning
4 with the statement, after the jury is here, the statement that
5 I said that I would give with respect to the redirect
6 examination of Mr. Francisco. And it seems to me that I should
7 do that before the witness takes the stand. So I will do that
8 and then I assume that the witness is Mr. Fitzgerald to
9 continue in his direct?
10 MR. MORVILLO: Yes, your Honor, that is correct.
11 THE COURT: In looking over what the parties had given
12 me, it appears that with respect to the documents from the
13 search there was more agreement reached than had initially been
14 reached. It looked like there were about, as I compared lists
15 and all, it appeared that there was now agreement to about 50
16 more documents as of yesterday than there had been before.
17 MR. BARKOW: I didn't count, your Honor, but there was
18 definitely more in agreement than there was yesterday. I have
19 no idea what the numbers are.
20 THE COURT: The only reason I raise that is not only
21 to compliment you all on continuing the process, but also to
22 ask when and what you want me to do. And we can address that
23 at the end of the day.
24 MR. BARKOW: I think, your Honor, that we would like
25 you to review the documents that are still in dispute. And
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1 certainly some are much shorter than others and it would be
2 fine with us if the Court was starting with the shorter ones
3 and built up to the longer ones.
4 I think that we have reached a point -- and I think
5 Mr. Tigar would probably agree with this -- that there is kind
6 a premise, different premise that we are starting from with
7 respect to these documents. So we are not going to agree on
8 those, but it is kind of an all or nothing proposition on
9 those.
10 THE COURT: I have to hear you out because there was
11 also -- I'm just not sure where you are in terms of presenting
12 to me the charts, and I realize that both sides said in their
13 letters to me that they want to be heard orally with respect to
14 the documents. So I have to give you that opportunity.
15 MR. BARKOW: I think we can obviously answer any of
16 the Court's questions. I think the chart that I provided with
17 my letter of yesterday is still the same. It is just that the
18 Court doesn't need to look at all of the rows on the chart, but
19 the information in the chart would be the same today.
20 The exhibits that I think the parties need the Court
21 to look at can be determined from the letter that I submitted
22 yesterday afternoon. I think that Mr. Tigar or Ms.
23 Shellow-Lavine is going to submit another letter after that. I
24 have not seen it. Maybe it has been submitted already.
25 MS. SHELLOW-LAVINE: Your Honor, I think it is being
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1 copied and our anticipation is we will submit it this morning.
2 MR. BARKOW: I think the parties anticipate that
3 talking about it orally might be more efficient. Some of the
4 exhibits might be obvious to the Court what it is, while others
5 it might not be.
6 THE COURT: One of the things I want is to make sure
7 that I know in terms of the timing where we are and when you
8 need decisions on all of this.
9 MR. BARKOW: Our plan right now, your Honor, is to
10 have the search team leader testify tomorrow, assuming what
11 happens today is what we anticipate will happen today. And
12 then depending on what else happens tomorrow, we may begin
13 trying to publish some of the exhibits to the jury from the
14 search. And then depending on whether we sit on Thursday or
15 not, we might continue to do that.
16 And then I think that next week we are probably going
17 to be getting into new and additional witnesses. We might put
18 the publication of some search material more on the back burner
19 for a little while, and we can turn to that again later.
20 THE COURT: I can take up all those timing issues.
21 I'm waiting to hear all of the jurors are here. I think all
22 the jurors are here, so I'm prepared to call in the jury and
23 deal with these other issues at the end of the day.
24 MR. TIGAR: I wanted to say, your Honor, there is
25 nothing in any of the challenged exhibits that would require
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1 your Honor to read them with extraordinary care prior to
2 hearing from us. These are global objections to the nature of
3 things, if that's helpful. It is not one of those, there on
4 page 52 lurks some beast that we wanted to point the Court's
5 attention to.
6 MR. BARKOW: The Court might want with particular
7 exhibits to look more closely after it hears from the parties.
8 I think the disagreements are a little more categorical.
9 THE COURT: There is also the other application by the
10 government with respect to the testimony of a witness relating
11 to the recording system, and I don't know if that witness is
12 proposed to testify soon, given our current schedule.
13 MS. BAKER: Your Honor, our original plan, as we had
14 indicated in the motion papers, was to put that witness on this
15 Wednesday. In light of the fact that we did not sit yesterday
16 and in light of our sense that the Court would prefer, in light
17 of the one juror's obligation, not to have to be in the middle
18 of a witness carrying over from Wednesday to Thursday, we
19 decided to put off Mr. Elliott until Tuesday of next week.
20 MR. TIGAR: We will have the written response to that
21 motion in limine, I hope, by the end of today. I drafted it
22 last night and it is being worked on right now.
23 THE COURT: Great.
24 Are we ready to bring in the jury?
25 MR. MORVILLO: Your Honor, would you like me to have
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1 Mr. Fitzgerald on the witness stand?
2 THE COURT: I frankly don't mind if Mr. Fitzgerald is
3 on the witness stand. I wouldn't require it because I'm taking
4 up just briefly the issue from the redirect. If you don't care
5 whether Mr. Fitzgerald is on the stand for that, I have no
6 problem.
7 MR. MORVILLO: Doesn't make a difference to me, your
8 Honor.
9 THE COURT: Fine.
10 MR. TIGAR: Your Honor, was there to be a session with
11 the juror before we started today, or was that going to be at
12 some other time?
13 THE COURT: I was going to do it at lunchtime.
14 MR. MORVILLO: May I step out, your Honor?
15 THE COURT: Yes.
16 Doing it at lunchtime helps to begin the day as
17 promptly as possible.
18 (Jury present)
19 THE COURT: Good morning, ladies and gentlemen. It is
20 good to see you all.
21 Ladies and gentlemen, last week on redirect
22 examination of Mr. Francisco the government asked Mr. Francisco
23 a question about the May 26, 2000 date on a cover letter,
24 Government Exhibit 7. I've stricken that question and answer
25 and the jury is instructed to disregard it.
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1 Now, Mr. Fitzgerald is on the stand, and he was on
2 direct examination by Mr. Morvillo for the government.
3 Mr. Fletcher.
4 THE DEPUTY CLERK: Mr. Fitzgerald, you're reminded
5 you're still under oath, having been previously sworn.
6 THE COURT: Mr. Morvillo, you may proceed.
7 PATRICK FITZGERALD, resumed.
8 DIRECT EXAMINATION (cont'd)
9 BY MR. MORVILLO:
10 Q. Good morning, Mr. Fitzgerald.
11 A. Good morning.
12 Q. When you were last on the stand on Wednesday of last week,
13 at the conclusion of the day we were discussing Government
14 Exhibit 9, which was your August 3, 2000 letter to Lynne
15 Stewart?
16 A. Yes.
17 Q. Directing your attention to the time period prior to your
18 sending that letter, in late June of 2000, did there come a
19 time when you went to a meeting at the Federal Bureau of
20 Investigation?
21 A. Yes. It was either June 19 or a day or two after that.
22 Q. And following that meeting did you make a decision that the
23 criminal investigation into the dissemination of statements by
24 Sheikh Omar Abdul Rahman relating to the Islamic Group cease
25 fire should stand down?
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1 A. Yes. But when I say I made the decision, I consulted with
2 my boss then, the U.S. Attorney, Mary Jo White, but I made a
3 tentative decision and checked with her, and agreed to stand
4 down.
5 Q. Incidentally, Mr. Fitzgerald, was this matter the only
6 thing that you were working on in June of 2000?
7 A. No.
8 Q. What else were you doing at that time?
9 A. There was one matter that I will just describe generally
10 that I would be working on at the time just about full time
11 from the summer of '98 through the end of a trial at July 2001,
12 and that was the main thing that occupied my time and some
13 people I was working with.
14 Q. When did that trial begin?
15 A. January 2001, and it ended in July; I think, mid July 2001.
16 Q. And what were you doing in June -- summer and fall of 2000
17 in preparation for that trial in general?
18 A. Both doing investigation and trial preparation. And I
19 don't know particularly June 2000. There was a lot of travel
20 going on and just a lot of gathering documents together,
21 producing documents. There was litigation in court as to
22 pretrial motions, continuing investigation, trial preparation,
23 little bit of everything.
24 Q. Directing your attention to the August 3, 2000 letter that
25 you sent to Ms. Stewart, did that letter result in negotiations
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1 over the language of a new attorney affirmation?
2 A. Yes. Over an extended period of time. It wasn't discussed
3 every day or every week, but eventually it resulted in a
4 revised letter, or revised affirmation.
5 Q. Can you briefly describe with whom you had those
6 negotiations and what was the nature of the negotiations?
7 A. Both. I negotiated with cocounsel for Omar Abdel Rahman,
8 Ramsey Clark, and I think I spoke to him on behalf of himself
9 and the attorneys who work with him, Abdeen Jabarra and
10 Mr. Schilling. And then with regard to the affirmation of
11 Ms. Stewart, I negotiated with an attorney named Stanley Cohen,
12 C-O-H-E-N, and discussed under what conditions the letter would
13 be signed, whether the letter would be changed, whether it
14 would be a letter for one time, and whether a visit could
15 happen before the letter was signed so that they could discuss
16 whether the letter should be signed at the visit.
17 Q. When you say letter, are you referring to the affirmation?
18 A. Affirmation, I'm sorry. Whether the affirmation would be
19 signed.
20 Q. Did there come a time, are you aware, when Ms. Stewart
21 signed a new attorney affirmation?
22 A. I believe it was in the spring of 2001.
23 MR. MORVILLO: May I approach, your Honor?
24 THE COURT: Yes.
25 Q. Mr. Fitzgerald, I've shown you what's in evidence as
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1 Government Exhibit 12. Do you recognize that document?
2 A. Yes, that's the 2001 affirmation that was signed by Lynne
3 Stewart.
4 Q. And what is the date of signature?
5 A. May 7, 2001.
6 Q. You testified that you were on trial in the early part of
7 2001?
8 A. Yes.
9 Q. When did that trial end?
10 A. July. It went from January through July, so this would
11 have been signed in the middle of the trial, and it may well be
12 that other people in my office were dealing with a lot of
13 negotiations or logistics about this, because if it is
14 something that happened in May 2001, I was in the courtroom
15 just about every day during the week.
16 Q. What did you do after the trial ended?
17 A. I think the trial ended mid July 2001. I moved to my
18 current position in Chicago the last day of August 2001. And
19 in the six weeks period in between I cleaned up some files in
20 the office and I took several trips. I went to Chicago, which
21 I had never lived in before, to start to find a place to live.
22 I hadn't taken a vacation -- I hadn't taken many days off in a
23 couple of years. I took a couple of vacations. I went
24 overseas.
25 So the six weeks between the end of July in 2001 and
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1 when I began in Chicago, what little time I spent in the
2 office, I was basically transitioning there, cleaning up files.
3 I had been there 13 years and was leaving a job, and I wanted
4 to transition the person who was taking over my
5 responsibilities. I was getting ready for Chicago. I was
6 calling around to people who knew the office in Chicago to get
7 ideas about things I should think about doing. And then I was,
8 frankly, taking vacation. That six weeks was largely a
9 transition six weeks.
10 Q. When were you sworn in as the United States Attorney of the
11 Northern District of Illinois?
12 A. I was sworn in as the interim U.S. Attorney I think the
13 last day of August. I flew out to Chicago to be sworn in so I
14 would effectively take over on a Saturday before Labor Day
15 weekend, so there would not be a gap between when my
16 predecessor left. And then I flew back to drive out, and I
17 took office effectively September 4 as interim U.S. Attorney,
18 and I became the official U.S. Attorney at the end of October.
19 Q. Directing your attention to October of 2001, did there come
20 a time when you recommended that the criminal investigation
21 into the dissemination of Sheikh Omar Abdul Rahman's statements
22 recommence?
23 A. Yes.
24 Q. Over the course of the time that you were the chief of the
25 organized crime and terrorism unit and one of the attorneys
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1 responsible for administering the SAMs for Sheikh Omar Abdul
2 Rahman, did you receive a number of signed attorney
3 affirmations from a variety of Abdel Rahman's attorneys?
4 A. Yes.
5 Q. Did you rely on those sworn affirmations that you received
6 in connection with Sheikh Abdul Rahman Special Administrative
7 Measures?
8 A. Yes.
9 MR. MORVILLO: I have no further questions at this
10 time, your Honor.
11 THE COURT: Mr. Stern, you may examine.
12 CROSS-EXAMINATION
13 BY MR. STERN:
14 Q. Good morning.
15 A. Good morning, Mr. Stern.
16 Q. You're familiar with the Islamic Group, are you not? I
17 don't mean personally, but with the history and the goals of
18 the Islamic Group?
19 A. Fairly. I'm not as familiar -- I'm not speaking Arabic.
20 From the course of the trial and the investigation I learned a
21 lot more than I ever would have otherwise.
22 Q. Over a period of nine months -- that is, during the trial
23 of the Sheikh and before that time -- you tried to learn what
24 you could about it, right?
25 A. Yes.
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1 Q. And you tried to learn how they were established, correct?
2 A. Yes.
3 Q. Who important members of that group were?
4 A. Yes.
5 Q. And the goals of that group, right?
6 A. Yes.
7 Q. And your understanding is, is it not, that that group began
8 in Egypt?
9 A. Yes.
10 Q. And was the group primarily concerned with what happened in
11 Egypt, correct?
12 A. Yes.
13 Q. And the main goal of that group, as far as you understand
14 it, was to turn from what is a secular government in Egypt,
15 right?
16 A. Right.
17 Q. To a Muslim government, the government ruled by Sharia,
18 right?
19 A. Yes.
20 Q. What is Sharia?
21 A. Sharia is Islamic law.
22 Q. As far as you understand it, the members of that group were
23 devoted to converting Egypt from that secular government to
24 that Muslim government, right?
25 A. Correct.
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1 Q. And to be a part of that group, therefore, you had to
2 accept the privacy, the importance of an Islamic government in
3 Egypt, fair to say?
4 A. I would assume so, yes.
5 Q. Now, the Sheikh, Sheikh Rahman, was an important figure in
6 IG, right?
7 A. Yes.
8 Q. People listened to him sometimes, didn't they?
9 A. Yes.
10 Q. But what he said was not always the final word, was it?
11 A. No. I think he was a leader, but not the only leader.
12 Q. There were times when he said things, he rendered an
13 opinion and the opinion he rendered was ignored, wasn't it?
14 A. I don't know if it was ignored. I would say that some
15 people thought he had more of a voice than others. There was a
16 dispute over whether he could be the leader of the group
17 because he was blind. Some people took the view it doesn't
18 matter that he is blind since he is not going to carry out any
19 actions, so he is the emir leader.
20 Others thought if you are going to lead people in a
21 group that carries out activities, if you can't do them
22 yourselves, how much can you lead. There was a dispute as to
23 whether his blindness affected his capabilities.
24 In addition, my understanding is, when a leader or an
25 emir of a group speaks, they still have to have consultation
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1 with others in the group just to make sure the leaders are not
2 taking them astray. Sometimes people can be a leader and
3 misinterpret things, so the group will have consultation. When
4 he spoke, his voice carried a lot of weight. I don't know if
5 anything he ever said was ignored. But because he spoke, it
6 got a lot of attention, but it doesn't mean that everyone
7 agreed with it.
8 I hope that answers your question.
9 Q. I'm trying to ask you a simpler question. What he said was
10 not invariably followed, was it?
11 A. Correct.
12 Q. And an example of that occurred in 1997, didn't it?
13 A. You'll have to help me with that.
14 Q. Do you recall that a statement was issued purportedly by
15 Sheikh Rahman when he was in jail, right?
16 A. A number of statements were issued while he was in jail.
17 Q. Specifically, a statement calling for a cease fire between
18 IG, the Islamic Group, and the government of Egypt, right?
19 A. My understanding at some point is that he supported a cease
20 fire from jail and there was a dispute within the group. I
21 think the people considered external to Egypt may have been
22 calling for a cease fire. There was a split between the people
23 outside of Egypt and the people inside jails in Egypt.
24 Q. I'm asking now specifically about what the Sheikh may have
25 said. Do you recall that on August 9 of 1997 a statement was
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1 issued by Sheikh Rahman from jail in which he endorsed -- in
2 which he called for a cease fire between the Islamic Group and
3 Egypt?
4 A. That sounds right to me. I wouldn't remember the date. I
5 don't know exactly what he said, but I do remember he issued a
6 call supporting the cease fire in 1997, that's correct.
7 Q. And some three months later, in November of 1997, the
8 massacre at Luxor took place, correct?
9 A. Yes.
10 Q. And so that was an occasion, an example of an occasion when
11 the Sheikh called for something and either another branch of
12 the group or another block of the group ignored his request or
13 disagreed with his request and did what they saw fit to do,
14 correct?
15 A. Assuming -- I don't know the language of August 1997. If
16 he called for a cease fire, then, obviously, whoever carried
17 out the attack didn't go along with the cease fire at that
18 time. But there was another part of it that makes me unclear
19 whether they overruled him.
20 Q. They didn't follow the cease fire, that's fair to say?
21 A. That's fair.
22 Q. Massacring 60 people is not a cease fire under any terms,
23 is it?
24 A. Agreed.
25 MR. STERN: If I may, Judge, I am going to hand Mr.
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1 Fitzgerald some photographs.
2 THE COURT: Ask permission. You may approach.
3 MR. STERN: I said it, yes.
4 THE COURT: I didn't hear you.
5 MR. STERN: I said if I may.
6 Q. Mr. Fitzgerald, these are photographs you were shown the
7 other day by the government, correct?
8 A. Yes.
9 Q. And they are marked Government's 2300A through 2300D?
10 A. Yes.
11 Q. And you began, when the government questioned you, you say
12 you recognized these photographs, correct?
13 A. No. I recognized the person in the photographs.
14 MR. STERN: With the Court's permission, I am going to
15 offer these into evidence with the government's consent and
16 with the consent of all parties, and I am going to offer them
17 as the government gave them, 2300A through 2300D. Judge, I
18 have given you copies.
19 THE COURT: Is that 2300A --
20 MR. STERN: 2300A, 2300B, 2300C, and 2300D.
21 THE COURT: Government Exhibits 2300A through D
22 received in evidence.
23 (Government's Exhibits 2300A-2300D received in
24 evidence)
25 MR. TIGAR: Through the Court to Mr. Stern, can he
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1 slow down just a little bit?
2 THE COURT: Yes.
3 MR. STERN: I'll try.
4 THE COURT: Hold on. Slow down just a bit and make
5 sure to talk into the microphone, because it is a large
6 courtroom and sometimes the voices don't carry.
7 MR. STERN: All right.
8 Q. Mr. Fitzgerald, the photograph we are looking at now is
9 2300A, correct?
10 A. Correct.
11 Q. And describe for me what that photograph depicts.
12 A. The person in the white outfit with the white head covering
13 with the red on it with a rifle in his hand is Sheikh Omar
14 Abdul Rahman, surrounded by other people.
15 Q. And you were asked if you had some idea who those people
16 surrounding him were. And do you have such an idea?
17 A. I don't have a particular -- I wouldn't be able to name
18 them and I don't know if I know those particular people. I'm
19 not very good with photographs of people I don't know well.
20 But I could describe -- if you want me to tell you who I think
21 they are generically.
22 Q. Yes.
23 A. Mujahideen.
24 Q. In what part of the country?
25 A. I believe that would be in Afghanistan. I have never been
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1 to Afghanistan, but I have seen lots of pictures of people in
2 Afghanistan, and this is consistent with the topography there,
3 and I've seen other pictures of people from Afghanistan in that
4 time frame with weapons and they seem to match up to that.
5 Q. And do you have any general idea what time frame this would
6 be?
7 A. My understanding would be that this would probably be the
8 late -- mid to late 1980s. Because my understanding is, I
9 believe, that Sheikh Omar Abdul Rahman came to the United
10 States in 1990, I don't know, and maybe he did and I forgot it.
11 I don't believe he went back to Afghanistan or, if he did, he
12 went back very often after 1990. So assuming he came to the
13 states in 1990 and was here for certain -- certainly, he has
14 been here since 1995 -- that this would be 1986 through 1988 or
15 1989. I would say the late '80s.
16 Q. Do you have any idea what was going on in Afghanistan
17 around that time period?
18 A. Yes.
19 Q. What?
20 A. The mujahideen were fighting against the Russians until
21 some time in 1989, when the Russians pulled out. From 1989, I
22 think, until 1992, if I remember correctly, there was a fellow
23 named Nagibullah who they were fighting against in Afghanistan,
24 and so the war against the Russians through '89 and the fight
25 against Nagibullah through 1992, there was lots of different --
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1 I think there were eight different principal factions fighting
2 in Afghanistan during that time.
3 Q. I am going to show you 2300B. Can you point out where the
4 Sheikh is in that picture or describe where the Sheikh is?
5 A. Did the green dot show up? The green arrow was on Sheikh
6 Abdul Rahman. I just pointed to the screen and it turned
7 green.
8 THE COURT: Ladies and gentlemen.
9 Q. Do you specifically know any of the other people in that
10 photograph?
11 A. There is someone else in the photograph. I am not certain
12 and I don't want to speculate.
13 Q. So you don't specifically know anyone else in that
14 photograph, is that correct?
15 A. May I look at the original?
16 Q. Sure. I have the original, if you need to see it.
17 A. No. There is one other person that I'm not confident
18 enough to say one way or the other whether it is someone
19 familiar to me.
20 Q. Let's look at 2300C. Do you know how to get rid of that
21 arrow now that it is there?
22 A. I just put another one. Sorry. Sorry about that.
23 MR. MORVILLO: I think if you hit the other side where
24 it says erase.
25 Q. Is that photograph taken in what appears to be the same
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1 place in around the same time?
2 A. Yes.
3 Q. And can you describe, without putting that little arrow
4 there, where the Sheikh is in that photograph?
5 A. He is sitting on the top of the tank wearing what looks
6 like a brown garment and the same white and red head covering.
7 Q. Finally, I am going to show you 2300D. Do you recognize
8 whether that photo was from approximately the same time and
9 place?
10 A. Yes. And that appears to be Sheikh Omar again in a brown
11 garment in the same head covering. And he appears to be
12 behind -- I don't know -- weapons, but I think from what I have
13 seen elsewhere, that might be like an antiaircraft gun.
14 Q. You have been an attorney for how many years, Mr.
15 Fitzgerald?
16 A. An attorney?
17 Q. Yes.
18 A. 19 years.
19 Q. And during that time it is fair to say, is it not, that you
20 have tried many cases?
21 A. A number of cases.
22 Q. And some of those cases have been very serious, very long
23 trials, correct?
24 A. Correct.
25 Q. And you're aware from the work you have done in the area of
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1 criminal law that in every criminal case there are two sides,
2 right?
3 A. Correct.
4 Q. There is the prosecution, of which you've always been a
5 member, right?
6 A. Correct.
7 Q. And the defense?
8 A. Correct.
9 Q. And each side in trial has certain obligations, right?
10 A. Correct.
11 Q. And they have certain rights, don't they?
12 A. Correct.
13 Q. So, for example, the government has an obligation to turn
14 over some documents to the defense pretrial, right?
15 A. Yes.
16 Q. There is other documents they can turn over later, right,
17 after a witness has testified, right?
18 A. Correct.
19 Q. The defense has an obligation to turn over, for example,
20 alibi notice?
21 MR. MORVILLO: Objection.
22 THE COURT: Basis.
23 MR. MORVILLO: Relevance.
24 MR. STERN: Judge, to answer that objection in open
25 court would be to talk about the rest of what I intend to do.
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1 THE COURT: Okay. I'll allow it.
2 A. The answer would be yes.
3 Q. There is also things that each side is entitled to keep
4 secret, right?
5 A. Correct.
6 Q. So, for example, in cases where you have witnesses, you
7 needn't always tell the defense these are our witnesses, right?
8 A. That's correct.
9 Q. And your strategy playing can be kept secret; you don't
10 have to come to us and say, this is exactly what we intend to
11 do, correct?
12 A. Correct.
13 Q. And these are the questions that we intend to ask a
14 witness?
15 A. Correct.
16 Q. There is nothing wrong, nothing illegal, nothing unethical
17 about keeping those things to yourself, correct?
18 A. Yes.
19 Q. By the same token, the defense has things that they can
20 keep to themselves, right?
21 A. Correct.
22 Q. Those same kind of strategy decisions, right?
23 A. Yes.
24 Q. Things their clients tell them?
25 A. Yes.
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1 Q. The defense has the absolute right to keep those things
2 secret, right?
3 A. The absolute -- everything is qualified. We have to, as
4 the government, turn over certain things and disclose certain
5 things. Different sets of rules apply to a defendant, and they
6 have to do certain things. And then each side has the right to
7 withhold certain strategy. So they have a right to do what
8 they have a right to do.
9 The word absolute threw me. I just meant that defense
10 counsel and defendants have the right to withhold certain
11 things, and what they have the right to withhold, obviously,
12 they have the right to do so.
13 Q. Let's talk specifically about -- and assume for the purpose
14 of this question that the conversation is lawful and not
15 unlawful.
16 A. Okay.
17 Q. A conversation an attorney has with his client, that he or
18 she has an absolute right to keep secret and an obligation to
19 keep secret, correct?
20 MR. MORVILLO: Objection. Again, on relevance
21 grounds, also, your Honor, and on scope.
22 THE COURT: I'll allow it.
23 A. The word absolute throws me, but if I could use an example
24 so I could make sure we understand this.
25 If this was a bank robbery case, a lawyer would ask
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1 the client, did you rob the bank. And, obviously, that stays
2 between them if it is lawful. Obviously, if a person was
3 saying, can I help you rob the bank, it is a different story.
4 But there may be circumstances under which if the lawyer knows
5 nothing, there may be ethical restrictions of what they do
6 because you said absolute right. If the person says, I robbed
7 the bank, then the lawyer couldn't put the defendant on the
8 stand and have them say under oath -- it gets tricky having the
9 person say, I didn't rob the bank. I was bowling that day. So
10 there are some restrictions. When you put the word absolute in
11 there, that throws me.
12 Q. Let's use your example, a bank robbery. A lawyer has a
13 client and the client says to the lawyer, I did this but I am
14 sure they didn't see my face. Let's say that's the case. Not
15 only does the lawyer have an obligation to keep that private,
16 unless his client says okay, but the client has the right to
17 say to the lawyer, you may not tell anyone that, right?
18 A. Absolutely.
19 Q. We both agree then absolutely to that question?
20 A. Yes.
21 Q. Now, you have also seen during trials that you've been
22 involved in occasions where people at your table, the
23 prosecution, whisper to one another, right?
24 A. Correct.
25 Q. And they whisper sometimes because they don't want the
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1 other side to hear what they are saying; their strategy, for
2 example, right?
3 A. Yes.
4 Q. And you've seen the defense do the same thing, correct?
5 A. Yes.
6 Q. And there is nothing wrong with that, is there?
7 A. Nothing wrong with the act of whispering.
8 Q. And the goal of that act is to keep the other side from
9 finding out something they have no right to know?
10 A. Sometimes. Sometimes it is just not to interfere with the
11 court proceeding.
12 Q. Let's talk about the situation where they don't want the
13 other side to know. Then that's the goal of the whispering,
14 right?
15 A. I would assume so, yes.
16 Q. And if they were, for example, speaking in a language they
17 knew the other side didn't know to accomplish that same end,
18 there would be nothing wrong with that, correct?
19 A. If there is nothing wrong with what they are doing, then
20 doing that in a different language doesn't change it.
21 Q. Or writing notes to one another, that would also be okay,
22 wouldn't it?
23 A. Assuming there is no rule against writing notes, if what
24 they are communicating, there is nothing wrong with it, then
25 doing it by notes doesn't change it.
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1 Q. Are you aware of any rule against writing notes?
2 A. No. In a courtroom?
3 Q. Yes.
4 A. I don't know if I ever had a rule against writing notes by
5 a lawyer. I don't know if there has ever been one by a
6 defendant.
7 Q. Now, you have done cases where translators have been
8 involved, right?
9 A. Yes.
10 Q. Many of the cases you've done have involved non-English
11 speakers of one sort or another?
12 A. Correct.
13 Q. And it is the job of a translator to convey to you words
14 from one language, a language you don't understand, to English,
15 the language you do understand, right?
16 A. Correct.
17 Q. And ideally it would be nice if we had a machine, someone
18 spoke, for example, Arabic into it and it came out in English.
19 That would be great, right?
20 A. Correct.
21 Q. But we don't have such a thing, do we?
22 A. No. I've heard people claim we do. I don't believe we do.
23 Q. Have you ever used one?
24 A. No.
25 Q. It is also true, isn't it, that sometimes the naked
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1 words -- by which, I mean, the literal words -- are not enough
2 to help you understand what's being conveyed in another
3 language, right?
4 A. Right. Sometimes just taking word for word and translating
5 it to a different language doesn't convey the full meaning of
6 someone who speaks the language and no expressions or no
7 quotations or no context.
8 Q. For example, we have sayings such as raining cats and dogs,
9 which might sound like nonsense to a non-English speaker if it
10 was translated literally?
11 A. Exactly.
12 Q. And other languages have the same thing?
13 A. Correct.
14 Q. There is also cultural information imbedded in language?
15 A. Definitely.
16 Q. There are things that we can say that to us in English are
17 completely polite, but might be impolite in another language,
18 right?
19 A. Yes.
20 Q. And there are actions that we can take, for example, ways
21 of saying hello or good-bye, that could offend people from
22 another culture?
23 A. Yes.
24 Q. And interpreters also assist the English speaker or the
25 non-English speaker, depending which direction it is going, in
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1 understanding those cultural cues, right?
2 A. Yes.
3 Q. Now, I want to talk to you some about the Sheikh's trial.
4 You said that took about nine months, right?
5 A. Yes.
6 Q. And you were there for the whole trial?
7 A. Yes. I think every day.
8 Q. You were there when Mohammed Yousry testified, weren't you?
9 A. I must have been. I don't, as I sit here now, remember the
10 testimony. But I don't doubt that he testified.
11 Q. You were -- withdrawn.
12 Do you know that Mohammed Yousry was a government
13 authorized -- I don't mean working for the government, but
14 authorized by the government to act as an interpreter in that
15 case?
16 A. I believe so. But just my own understanding, you're
17 talking about authorized by the court interpreter's office,
18 government authorized?
19 Q. Authorized by the court interpreter's office, and vetted by
20 the government ultimately.
21 A. I don't doubt that if he testified at the trial that there
22 were a number of translators. There is a court interpreter's
23 office so that if I spoke Arabic, then if I testified, a
24 court-authorized interpreter would stand next to me, or if I
25 were a defendant who spoke Arabic, a court-authorized
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1 interpreter would sit next to me as well.
2 I don't doubt that he was a court-authorized
3 interpreter. I just don't remember the day that he testified
4 or what specifically it was about.
5 Q. Well, do you remember whether or not he gave any fact
6 testimony in that case, that is, fact testimony like the Sheikh
7 did or didn't do this, this person is the Sheikh's friend,
8 these are the Sheikh's beliefs, anything like that?
9 A. I don't believe so. It was nine years ago, but my
10 recollection would have been that if he testified, it would
11 have been simply as a translator to say, this is what this
12 means, this is what this word or expression means, or I read
13 this document to say that he wasn't a fact witness that said I
14 was there on a given date when something happened. I don't
15 remember that.
16 Q. And your memory also was that he was not a character
17 witness for the Sheikh, right?
18 A. I don't believe so.
19 Q. I want to talk to you some about Ms. Stewart, who was one
20 of the Sheikh's lawyers, right?
21 A. Correct.
22 Q. And you knew Ms. Stewart some before that trial began,
23 right?
24 A. I knew her a little bit before the trial began, and then we
25 spent nine months in the same courtroom.
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1 Q. At the end of that nine months you knew her quite well?
2 A. Yes.
3 Q. Is it fair to say, during a trial, particularly a long
4 trial, there is a lot of interaction between the defense and
5 the prosecution?
6 A. Yes.
7 Q. And isn't it fair to say that you respected her as a person
8 based on your experience with her on that trial?
9 A. Yes.
10 Q. And you liked her, right?
11 A. I think I got along from my perspective. I got along well
12 with her.
13 Q. And you thought she did a good job, didn't you?
14 A. Yes.
15 Q. The Sheikh was convicted in that trial, wasn't he?
16 A. Yes.
17 Q. And he was then sentenced to life in prison?
18 A. Yes.
19 Q. And he had appeals, right?
20 A. Yes.
21 Q. And appealed to the Second Circuit, which is the next court
22 above this court, right?
23 A. Yes.
24 Q. And he lost there?
25 A. Correct.
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1 Q. And there was an appeal or he tried to appeal to the
2 Supreme Court of the United States?
3 A. Right. The petition, I think, was denied by the Supreme
4 Court.
5 Q. They declined to hear his appeal, right?
6 A. Yes.
7 Q. And after that direct appeals from your case are done with,
8 right?
9 A. Yes.
10 Q. And those appeals were worked on by several lawyers,
11 weren't they?
12 A. Yes. But almost all of it by one person other than me. I
13 didn't work on the appeal very much. You're talking about the
14 government side?
15 Q. I wasn't. I was talking about the defense.
16 A. I'm sorry. Yes. A number of different attorneys, but the
17 government attorney who handled it almost single-handedly was
18 Andrew McCarthy. He had a better idea of what was going on
19 with the appeal.
20 Q. Putting aside the facts of the appeal, you were aware that
21 one of the lawyers on that appeal was Ramsey Clark?
22 A. I would assume so, because he had been an attorney at the
23 trial, although Ms. Stewart handled most of the trial. And he
24 was an attorney dealing with Sheikh Omar Abdul Rahman after his
25 sentence, as far as I know, through until today. So I assumed
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1 he worked on the appeal. Since I didn't write the briefs, I
2 can't remember whose name was on the other side. But I assumed
3 he was.
4 Q. You know who Mr. Clark is, don't you?
5 A. Yes.
6 Q. He was an Assistant Attorney General from 1961 through
7 1965, right?
8 A. Those years sound correct. I know he was the Attorney
9 General and I know it was back in the '60s. And what you're
10 saying sounds consistent with that.
11 Q. I think he was Attorney General under Johnson from '67
12 through '69, right?
13 A. That's correct.
14 Q. He was also at some point a national president of the
15 Federal Bar Association?
16 A. I don't know that, but I don't doubt that.
17 Q. You also know who Larry Schilling is, right?
18 A. I know he was an attorney who worked with Mr. Clark and
19 Mr. Jabarra. I don't know anything about his background.
20 Q. How about Mr. Jabarra. Do you know who he is?
21 A. Yes.
22 Q. You know that he was one of the founders of the Arab
23 American Antidefamation League?
24 A. I think so. I know he was involved in that organization.
25 I didn't know if he founded it, but I know he was involved with
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1 it for a long time.
2 Q. You know he was a civil rights attorney, right?
3 A. Yes.
4 Q. You also know that Lynne Stewart, in addition to the trial
5 that she did with you, had done a number of other high-profile
6 cases, right?
7 A. Yes.
8 Q. And you know that Lynne Stewart was and is a well-respected
9 lawyer in New York?
10 A. My understanding is that when we tried the case that she
11 was well known, well respected.
12 Q. Now, after the appeals were done, were completed, rejected
13 by the Supreme Court, those same four people we discussed
14 continued to act as lawyers for the Sheikh, didn't they?
15 A. I believe so.
16 Q. And you know from your experience as a lawyer that there
17 are reasons that people want and need lawyers, even after their
18 appeals have been denied, right?
19 A. Yes, there are. They need them a lot less after appeals
20 have been denied.
21 Q. There are people, are there not, who bring habeas petitions
22 after appeals have been denied and ultimately win, right?
23 A. There are many who bring appeals petitions, habeas
24 petitions. Some of them win.
25 Q. And to do that, while you could do it yourself, it is very
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1 useful to have a lawyer, isn't it?
2 A. Yes.
3 Q. There are also people who litigate about their prison
4 conditions, correct?
5 A. Yes. People in prison are very litigious.
6 Q. And they litigate about things about First Amendment
7 rights, they say they are not being allowed to practice my
8 religion?
9 A. Some do.
10 Q. Some say the conditions under which I'm being held are too
11 onerous or I'm not getting certain things I'm entitled to?
12 A. Many do.
13 Q. While they could do that themselves, it is useful to have a
14 lawyer for that?
15 A. Yes.
16 Q. And in some cases there are people who continue to engage
17 in negotiations with the government, even after their appeals
18 have been denied, right?
19 A. Negotiations about what?
20 Q. Well, for example, not in this case, but there are people
21 who say, wow, now I want to give the government information to
22 maybe help myself out, right?
23 A. Yes. Some people go through trial, get convicted, then
24 decide in the bank robbery case that they will come in and
25 testify against other people that were robbing banks with them.
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1 Q. Or there are people who say, I want to be in a different
2 facility nearer my family or something like that, and they
3 negotiate with Bureau of Prisons lawyers over that, right?
4 A. I assume they do. I wouldn't be part of that, so I assume
5 people are asking the Bureau of Prisons lots of things.
6 (Continued on next page)
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1 Q. And in all of those kinds of interactions it's useful to
2 have lawyer, isn't it?
3 A. If you are going to be dealing with the government,
4 negotiating, I am sure lots of them would prefer to have a
5 lawyer.
6 Q. Now, I want to talk to you some about the Special
7 Administrative Measures, okay?
8 A. Sure.
9 Q. We will call them SAMs. We both know what that is, right?
10 A. Yes.
11 Q. Now, the SAMs in this case were first imposed in '97,
12 right?
13 A. Correct.
14 Q. And at the time they were imposed they were a relatively
15 new mechanism for keeping people or depriving people of the
16 ability to do various things, let's say.
17 A. Yes.
18 Q. And among those things was to get information from the jail
19 out of the jail, right?
20 A. Correct.
21 Q. And it's your belief that you were one of the first people
22 to utilize them, right?
23 A. Yes.
24 Q. And over the years that they have been in effect they have
25 evolved, have they not?
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1 A. Yes.
2 Q. Sometimes based on things you decided or other prosecutors
3 decided, right?
4 A. Correct.
5 Q. Sometimes based on suggestions or demands made by defense
6 lawyers?
7 A. Yes.
8 Q. But the ones in effect today, and I am not talking about
9 just on the sheikh, I am talking about whatever they are, are
10 somewhat different than the ones in effect in 1997?
11 A. I assume so and I assume that some in effect today are
12 different depending on the different inmate. They are supposed
13 to be designed to a specific situation. So there will be
14 similarities but differences.
15 Q. Now, any attorney who wanted to stick with the sheikh had
16 to sign an affirmation which you described, right?
17 A. Yes.
18 Q. Saying that they would abide by these SAMs?
19 A. Correct.
20 Q. And the SAMs gave instructions to the attorneys regarding
21 their interactions with the sheikh and what they were and were
22 not allowed to do, right?
23 A. Correct.
24 Q. And one of the things in the SAMs, one of the requirements
25 of the SAMs was that the attorneys inform people in their
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1 office -- their staff, their employees -- of the obligations
2 that were imposed on them -- that is, the employees
3 derivatively -- from those SAMs, right?
4 A. That is my understanding, particularly just remembering the
5 SAMs that when phone calls came through the SAMs said that you
6 can't take a phone call from prison into your office and then
7 do a third-party call connected to somewhere else, the notice
8 to the attorney would say you won't let that happen and you
9 will tell your staff so that if the secretary gets a phone call
10 or somebody else working in the office gets the phone call they
11 don't do that accidentally.
12 Q. Now, eventually all of the attorneys in this case, the
13 people who we discussed -- Mr. Jabara, Ms. Stewart, Mr. Clark
14 and Mr. Schilling -- all signed affirmations to be bound by the
15 SAMs, correct?
16 A. Correct.
17 Q. And they did that repeatedly every 4 months or so?
18 A. Yes. Some I think Mr. Clark and Mr. Jabara and maybe Mr.
19 Schilling every 4 months and there were some gaps. For
20 example, when Ms. Stewart signed in 2000 I don't think she
21 signed again until 2001. So not every 4 months but, yes,
22 attorneys signed repeatedly.
23 Q. And those gaps were attorneys or attorneys for attorneys
24 negotiating with you about the terms of the SAMs, right?
25 A. Yes.
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1 Q. And until SAMs were signed a person was not supposed to be
2 able to go and visit and talk to the sheikh, correct?
3 A. Correct.
4 Q. Now, Mr. Clark signed his first SAM, the first one ever
5 presented to him, in April, April 24, '97, right?
6 A. That sounds like the right date.
7 Q. And in June, June 4, '97, Mohammed Yousry was authorized to
8 act as an interpreter, correct?
9 A. That sounds like the right time frame. I don't have the
10 letter in front of me but that sounds correct.
11 Q. Right.
12 On August 9, '97 Ramsey Clark issued a statement from
13 the sheikh to newspapers, correct?
14 A. If you are talking about that cease-fire statement, again,
15 I don't remember the date and I am unclear as to how it was
16 phrased as to who issued it. A statement was issued in Sheikh
17 Abdel Rahman's name in '97 about the cease-fire. As I sit here
18 now, I don't remember the exact date but I don't think -- if
19 that is important to you, but I don't know how it was phrased
20 in terms of whether it said Ramsey Clark said it or whether it
21 was issued at a time that he was using phone calls to Mr.
22 Clark.
23 Q. I am sorry, what was the last thing you said?
24 A. I don't know if this was issued as a statement by Mr. Clark
25 outside saying I am Ramsey Clark, I am issuing this statement,
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1 I don't remember that, or whether it just said a statement was
2 issued and whether it was concerns if it had come from a phone
3 call because they believed Mr. Clark's office was the office
4 that was taking the phone calls from prison at the time. So
5 when you say Mr. Clark did that, he may have, I am not sure. I
6 don't want to say that he did without knowing it.
7 Q. Well, it was clear to you that whoever issued it, it was a
8 violation of the SAMs, right?
9 A. Yes. Assuming that whoever issued -- that what appeared in
10 the papers, assuming it wasn't made up that someone didn't call
11 the papers and say this came from the sheikh but it didn't, if
12 a statement was going out from the prison that violated the
13 SAMs clearly.
14 Q. And when that statement was issued, did you initiate an
15 investigation of some sort to find out how it came out of the
16 prison?
17 A. I don't recall when I learned that that statement had come
18 out. I know I learned it at some point and I don't recall
19 doing something in August. I remember talking about doing
20 something in November of '97.
21 Q. And did you do something in November '97?
22 A. Well, one of the things I considered doing in November '97
23 was to change the SAMs. My recollection wasn't based solely on
24 the issuance of the support for the cease-fire, but for at
25 least two other statements I think it had come out and they had
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1 to do with Sheikh Abdel Rahman's medical condition and what I
2 thought was a false description of the medical condition which
3 had led to threats, if I have it correctly.
4 I was more concerned about threats that came out in
5 May '97 where the Islamic Group threatened they would kill the
6 president, they would kill the warden. They would kill the
7 court that was involved in the sentence and all people involved
8 in putting the sheikh in jail if anything bad should happen to
9 him because of his medical condition and there were false
10 reports, I thought, coming out of his medical condition.
11 My concern was if that is coming out in response to
12 statements coming as a result of attorneys' visits that we need
13 to verify to stop that or establish so there is a change in the
14 regulations. So my suggestion was to change the SAMs so that
15 any attorney calls that the attorneys would be notified that
16 any attorney calls would be recorded and the tapes might be
17 preserved and then if we had a basis to believe that someone
18 had used those attorney calls to pass messages in violation of
19 the SAMs we could go to the Attorney General and get permission
20 to pull those tapes and to review it.
21 But right now -- my understanding is right now,
22 meaning in '97, I believe those calls were not being recorded
23 and therefore we couldn't establish what exactly had happened
24 during that exchange. So my concern was to tighten up the SAMs
25 and say, look, if you are using these attorney visits to pass
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1 messages out that are causing threats against the president,
2 the warden, the judge, and others involved in his
3 incarceration, that we wanted to put it more securely and tell
4 the lawyers your calls will be recorded and if someone violates
5 we can do something about it. That is what I did.
6 Q. Did you write Ramsey Clark a letter saying what you are
7 doing could result in deaths?
8 A. I did not write him a letter at that time.
9 Q. Did you write Abdeen Jabara such a letter?
10 A. No.
11 Q. Larry Schilling?
12 A. No.
13 Q. Lynne Stewart?
14 A. No.
15 Q. Did you write Mohammed Yousry a letter like that?
16 A. I don't think I have ever written Mohammed Yousry a letter.
17 Q. Well, from '97 through 2002, did you ever send someone to
18 ask Mohammed Yousry would you sign SAMs?
19 A. I have never had contact with Mohammed Yousry about the
20 SAMs.
21 Q. Well, whether you did did you ask someone else?
22 A. No. Well, the only people I have had contact with about
23 the SAMs about defense employees would be the defense
24 attorneys. We sent them a SAMs and said you should make sure
25 that the rules are known to your employees. We do not deal
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1 with defense staff.
2 Q. Did you ever write Mohammed Yousry a letter and say have
3 you been informed of the content of the SAMs?
4 A. No.
5 Q. Did you ever send someone to ask him, Mr. Yousry, do you
6 know what the SAMs require you to do or not do?
7 A. No, I did not.
8 Q. So from '97 until 2002, no one ever tried to find out
9 whether Mohammed Yousry in fact knew what the SAMs required to
10 do or not do, is that right?
11 MR. MORVILLO: Objection.
12 THE COURT: Personal knowledge. Rephrase it.
13 Q. Of your own knowledge, your own personal knowledge, from
14 '97 through 2002, the day he was arrested, did anyone from your
15 office ever contact Mohammed Yousry and say to him do you know
16 specifically what the SAMs require you to do and not do? That
17 is a yes or no question.
18 A. No.
19 MR. STERN: Thank you.
20 MR. TIGAR: May I inquire, your Honor?
21 THE COURT: Yes.
22 CROSS EXAMINATION
23 BY MR. TIGAR:
24 Q. Mr. Fitzgerald, good morning.
25 A. Good morning, sir.
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1 Q. I represent Lynne Stewart.
2 A. Yes.
3 Q. Do you recognize her in court today?
4 A. Yes, I do.
5 Q. Would you point her out please for the jury? We haven't
6 done that yet.
7 A. She is the second to the left at the defense table
8 wearing -- I am bad with colors, but something in the orange
9 genre. She is better with colors than I am. She is wearing an
10 orange outfit.
11 MR. TIGAR: May the record reflect the witness has
12 identified Ms. Stewart.
13 THE COURT: Yes.
14 Q. Mr. Fitzgerald, Mr. Stern on behalf of Mr. Yousry was
15 asking you about that 9-month trial. I just have a few more
16 questions about that, sir.
17 A. Sure.
18 Q. During that trial there were a lot of sermons and speeches
19 of Omar Abdel Rahman played for the jury, is that correct?
20 A. Yes, a lot.
21 Q. And it was fair to say I think that that was a hotly
22 contested trial?
23 A. Yes. I mean, obviously.
24 Q. You came in first, right when it was all over and you won
25 the case, correct?
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1 MR. MORVILLO: Objection.
2 I believe the witness was trying to answer the
3 question before Mr. Tigar continued.
4 Q. I didn't mean to cut you off. Had you finished the answer?
5 A. Hotly contested trial? Obviously we were trying to prove
6 the defendant's guilt and other people were trying to defend
7 it. It was vigorously contested. Hotly contested -- it wasn't
8 intemperate. Everyone did their jobs and went at it very hard
9 and very professionally and it went on for 9 months.
10 Q. And at the end of the trial by the time the jury returned
11 its verdict, how many defendants were there as to whom the jury
12 was returning its verdict?
13 A. If I can remember correctly, I think we started the trial
14 with 11 defendants and we finished the trial with 9 defendants
15 and the case involved 15 defendants before trial, if I have it
16 correctly.
17 Q. Were you the first chair or second chair or third chair in
18 the three-person government team?
19 A. I was the third person in. Andy McCarthy was the first
20 chair, and he had worked on the case since '93, and then he
21 brought in or started the case with a fellow named Robert
22 Khuzami. So the two of them were doing the trial from '93, the
23 spring, until the spring of '94, and then they realized with 15
24 defendants or so at the time and a 9-month trial they needed a
25 third lawyer to join the team, and I said yes.
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1 Q. Now, during that trial you and Ms. Stewart were on a
2 first-name basis?
3 A. Yes.
4 Q. She called you Pat and you called her Lynne?
5 A. Yes.
6 Q. Now, you had one witness in the case that I want to use an
7 example, a fellow named Salem.
8 A. Emad Salem, yes.
9 Q. And he was on direct examination for about two and a half
10 weeks, was he, or a week and a half, was it?
11 A. I remember he was on the stand total for a month but
12 whether it was a week of direct examination and 3 weeks of
13 cross examination, he was on the stand for a month and then he
14 came back later for like another day at least once. So he was
15 on for a long time.
16 Q. And this was a situation where Ms. Stewart cross examined
17 him, correct?
18 A. Yes.
19 Q. And in her cross examination, if you will recall it please
20 for the jury, she started out by asking Mr. Salem whether he
21 had told a lot of lies, do you remember that?
22 MR. MORVILLO: Objection.
23 THE COURT: Sustained.
24 Q. Was it Ms. Stewart's job to cross examine Mr. Salem?
25 A. Yes.
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1 Q. Was one of the jobs of a defense lawyer in that trial to
2 try to point out to the jury whether or not a witness was being
3 truthful?
4 A. Correct.
5 Q. Is that what defense lawyers do if they can?
6 A. Yes.
7 Q. And did Ms. Stewart ask questions designed to help the jury
8 see instances in which Mr. Salem had been untruthful?
9 MR. MORVILLO: Objection.
10 THE COURT: I will allow that question.
11 A. I think it's fair to say that the government put out its
12 evidence of what Mr. Salem said, including some lies he told,
13 and Ms. Stewart examined him on other areas and contended he
14 had told additional lies and we argued to the jury what it all
15 meant.
16 Q. And at the end, of course, we pointed out you got a guilty
17 verdict?
18 A. Yes.
19 Q. My only question is is that one of the things in our system
20 that defense lawyers are supposed to do, is point out to the
21 jury or underscore lies that witnesses tell?
22 A. They are supposed to point out and underscore any lies they
23 tell or they believe they told or any inconsistencies.
24 Q. And prosecutors when they cross examine are supposed to
25 point out lies they think that defense witnesses told, correct?
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1 A. If they think a witness has lied you are supposed to point
2 that out and argue that to the jury and the jury decides at the
3 end whether a lie was told by anyone. They will hear from both
4 sides and the jury makes the ultimate call whether it's
5 truthful or false.
6 Q. And that is called sometimes the adversary system, correct?
7 A. Yes.
8 Q. We have already established you respected the job Ms.
9 Stewart did in that case, correct?
10 A. Correct.
11 Q. Now, after the case was over, there was the appeal which
12 was eventually denied, right?
13 A. Correct.
14 Q. After the appeal was over you have also said that there
15 could have been a 2255 or habeas corpus, right?
16 A. Yes.
17 Q. Now, a 2255, that is a way that a person who exhausted all
18 their direct appeals can still get a court to review the legal
19 issues about their case, right?
20 A. Correct.
21 Q. And there are provisions, are there not, for people to get
22 actually a lawyer appointed by the court to represent them
23 during those 2255 proceedings, right?
24 A. They can. I think it's not automatic. A judge can decide
25 if a person says I want to raise this legal issue, a judge can
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1 appoint a lawyer or not, to my understanding.
2 Q. And in your experience as a federal prosecutor, a lot of
3 important decisions by federal courts about people's rights
4 have been made in 2255 proceedings, right?
5 A. Some. I think a lot of important decisions are made in
6 ordinary cases and 2255 are these petitions brought in prison,
7 and some of them have very, very serious constitutional issues
8 in them and some of them are pretty silly. It runs the gamut.
9 And there are lots of them because they come across your desk
10 on a regular basis.
11 Q. And they do come across your desk on a regular basis,
12 right?
13 A. Yes.
14 Q. And in your experience in these 2255 petitions, they are
15 usually filed by people that are in prison, correct?
16 A. Yes. I think you don't have a right to file a 2255 if you
17 get out.
18 Q. Now, in your experience as a professional prosecutor, do
19 you find it easier to deal with someone who is represented by
20 counsel as a general matter as opposed to somebody who is
21 writing you letters on their own behalf?
22 A. Yes, it's usually easier if a lawyer is involved.
23 Q. So even after all the appeals are exhausted, if a person
24 has a lawyer, that makes it easier to have their contentions
25 raised and discussed, right? Or it can.
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1 A. It can. Sometimes it helps, sometimes it hurts.
2 Q. Now, in addition to this 2255 business, a person that is in
3 prison also has the right to try to get a court to look at the
4 conditions under which they are being held, correct?
5 A. I think they have a right to ask to go to court. No one
6 stops people from going to court. So if they are going to
7 court to sue about prison conditions they will argue this is
8 outrageous and maybe illegal, and they may be right. And
9 sometimes they might be wrong and a judge decides whether they
10 get their day in court. But people do litigate over their
11 prison conditions.
12 Q. And as a general matter, sir, based on your experience as a
13 federal prosecutor, is it easier to deal with someone that says
14 they are being held illegally under illegal conditions if they
15 have a lawyer than if you are trying to respond to their
16 letters that they are just writing?
17 A. It's a balance. If they are doing it themselves and you
18 get someone who is practicing law from a jailhouse library, you
19 can get some pretty crazy stuff, so if you get a lawyer
20 involved it can make it more focused. On the other hand, if
21 you get a lawyer you may get more claims raised. But once they
22 are in prison and make these prison claims they are usually
23 handled by the Civil Division and I never worked in the Civil
24 Division, so the civil claims about prison conditions are
25 generally not something I handled like the 2255s.
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1 Q. You are now a United States Attorney for the Northern
2 District of Illinois, right?
3 A. Yes.
4 Q. And that is a job that you are appointed by the President
5 of the United States, is that right?
6 A. Yes, sir.
7 Q. And after President Bush appointed you you were confirmed
8 by the Senate, correct?
9 A. Yes, sir.
10 Q. And I think you told us on direct that some 20, 30 of the
11 lawyers who work for you do civil cases, right?
12 A. Yes.
13 Q. So you are about to be baptized into the civil side of
14 practice, are you not, sir?
15 A. I am very, very lucky that I have a great Civil Division
16 and a great boss and I delegate on the civil side. They handle
17 those things. They handle them well and I don't get involved
18 in the details of that.
19 Q. Would you agree with me, sir, that some very important
20 constitutional principles have been established in court cases
21 brought by people suing about the conditions in which they are
22 being held in prison?
23 A. Yes.
24 Q. Now, I want to turn to -- before I do that.
25 In talking with Mr. Stern he asked you a lot of
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1 questions -- and I will not go over that again -- about
2 confidentiality and how lawyers behave and so on, right?
3 A. Yes.
4 Q. To be a lawyer, you have to take an oath, don't you?
5 A. Yes.
6 Q. And what bars are you a member of?
7 A. Just the New York bar, the Southern District of New York
8 bar -- the New York bar is the New York State bar. So I was
9 sworn in as a member of the bar of New York, the State of New
10 York, in '86. Then I became a member of the bar of the
11 Southern District of New York and then the Eastern District of
12 New York, which is Brooklyn, Queens and Long Island. And I am
13 a member of the bar of Second Circuit Court of Appeals. Even
14 though I am in Chicago I am not a member of the Illinois bar
15 because if you are a federal prosecutor you can prosecute in
16 the federal courts so I have not yet become a member of any bar
17 in Illinois. So I am a member of the New York bar.
18 Q. Now, when you become a member of the bar in New York, that
19 is the first oath you ever took as a lawyer, you took in some
20 court in New York, correct?
21 A. Yes, sir.
22 Q. Now, where was that, in Manhattan?
23 A. In Brooklyn.
24 Q. In Brooklyn. So that is what department?
25 A. I think that is the Second Department. I always get them
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1 confused, but over in Brooklyn Heights.
2 Q. And you took an oath.
3 Now, before you could take that oath you had to take
4 the bar exam, right?
5 A. Yes, sir.
6 Q. And in part of that bar exam you had to study legal ethics,
7 right?
8 A. Yes, sir.
9 Q. Now, the laws that tell lawyers what they can and cannot do
10 as a matter of legal ethics, are those written down?
11 A. Yes, in many respects. There is a code of professional
12 responsibility, then different states have different rules so
13 there are ethical canons and disciplinary rules, so some of it
14 is codified but the law doesn't write down everything.
15 Sometimes it's case law and sometimes it's opinion by the Bar
16 Association. So it may vary a bit from state to state, which
17 is why you have to take an ethics exam for that state.
18 Q. Each state is different?
19 A. Somewhat different.
20 Q. And in New York what you had to study of the New York rules
21 of professional responsibility is written down in a code book
22 in McKinney's and you can read that, right?
23 MR. MORVILLO: Objection.
24 THE COURT: Basis?
25 MR. MORVILLO: Relevance and way beyond the scope of
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1 direct, your Honor.
2 THE COURT: I will allow the question.
3 Q. It's a yes or no.
4 A. A lot of what governs you is written down in the ethical
5 canons, the disciplinary rules. I don't know if everything is
6 written down but there is definitely some written materials.
7 Q. Now, let's go back please to October 1st, '95, the jury
8 verdict in the Sheikh Abdel Rahman case, correct?
9 A. Yes, sir.
10 Q. And shortly thereafter Sheikh Omar Abdel Rahman was moved
11 to Springfield, right?
12 A. Yes, sir.
13 Q. Was that that day or the next day? Or when?
14 A. My recollection was that most of the defendants out of the
15 9 were taken within a day. I don't know about Sheikh Omar
16 because he went to Springfield because that has a medical
17 facility. My guess is he was moved pretty quickly that day or
18 the next day.
19 Q. You say Springfield is a medical facility. Have you ever
20 been there?
21 A. No, I haven't.
22 Q. Is it your understanding that it's a prison but it also has
23 doctors and a hospital and medical care, correct?
24 A. Yes. It's definitely a prison. It's a prison that treats
25 people with some medical conditions.
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1 Q. And in looking back to 1955, were you aware that Sheikh
2 Omar Abdel Rahman had health problems?
3 A. In '95?
4 MR. MORVILLO: Objection.
5 Q. Did I get the wrong year?
6 A. That is fine. I think you meant '95.
7 Q. I did.
8 A. It was clear that he had some medical problems. First of
9 all, he had an issue that he was blind. He also was diabetic
10 and so it was also important that he be given good medical care
11 for lots of reasons.
12 Q. From your experience in the trial, was an interpreter
13 available to him to translate from English into Arabic at the
14 trial?
15 A. Yes.
16 Q. He had the services of an interpreter?
17 A. Yes, he had a headset around him and a translator would
18 translate. If the witness spoke in English the interpreter
19 would translate and it would get beamed to his headset and I
20 believe he had an interpreter next to him so he could speak to
21 counsel, if I recall correctly.
22 Q. Do you know whether or not there were Arabic-speaking
23 guards and medical personnel at Springfield?
24 A. I don't know. I don't know for a fact. I would assume in
25 most of the prison facilities that there aren't a lot of people
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1 who speak Arabic and therefore they would have to hire
2 interpreters to come in when they needed to deal with an inmate
3 who spoke Arabic.
4 MR. TIGAR: May I have just a moment, your Honor? I
5 am going to get an exhibit.
6 THE COURT: All right.
7 MR. TIGAR: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. Sir, I am going to place in front of you what I have marked
10 as LS-12 and ask you if you have ever seen it before.
11 A. Yes, it's a letter I wrote with attachments.
12 Q. And would you look at it carefully please so that you can
13 tell us whether or not what is attached to the exhibit is what
14 was attached to your letter that you sent.
15 A. It looks like it. I see one tiny dicrepancy. It says that
16 it encloses a three-page document with a certain date that
17 talks about the notification and enclosed is a three-page
18 document with that same date that is the notification of the
19 Special Administrative Measures so what is attached makes sense
20 to my letter.
21 It also tells Mr. Clark that I enclose an affirmation
22 for him to sign and there is a file attached dated April '97.
23 But it also includes one for Mr. Schilling. I think I always
24 get confused. Mr. Schilling shares an office with someone, I
25 think it's Mr. Clark --
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1 Q. Mr. Clark it is true.
2 A. So I assume I sent Mr. Schilling's with him. My letter
3 doesn't doesn't say to Mr. Clark and Mr. Schilling and I don't
4 think my letter says I am enclosing one for Mr. Schilling but
5 this makes sense to me that I sent it in this form.
6 MR. TIGAR: We offer LS-12, your Honor.
7 MR. MORVILLO: No objection, your Honor.
8 THE COURT: LS-12 received in evidence.
9 (Defendant's Exhibit LS-12 received in evidence)
10 Q. I am going to zoom up here a little bit --
11 THE COURT: I am sorry, is this LS-12?
12 MR. TIGAR: This is LS-12, the second page of the
13 exhibit that has been received in evidence. It's a little hard
14 to see but we will look at it.
15 THE COURT: You can show it to the jury.
16 Go ahead.
17 Q. Mr. Fitzgerald, this is dated April 3, '97, correct?
18 A. Yes.
19 Q. And what is your understanding of what this is, this
20 notification that we are looking at of the first page?
21 A. My understanding is that the first time the Attorney
22 General ordered the director of the Bureau of Prisons to put
23 these Special Administrative Measures, the SAMs, on inmate
24 Abdel Rahman that the Bureau of Prisons would notify the inmate
25 what the rules are, that this document was created as a
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46TSSAT2 Fitzgerald - cross
1 document from the Bureau of Prisons to inmate Abdel Rahman
2 saying here is what is being imposed, the rules and why, and
3 according to my cover letter this three-page document would
4 have been translated into Braille so that Mr. Omar Abdel Rahman
5 could read it.
6 Q. Now, do you know if it was translated into Arabic in
7 Braille or just into Braille English?
8 A. I don't know.
9 Q. Now, let's go back a minute and look at the SAMs. SAMs
10 were created by an administrative regulation, correct?
11 A. Correct.
12 Q. You ever already testified about that.
13 A. Correct.
14 Q. And that administrative regulation was made by Kathleen
15 Hawk in 1996-'97, correct?
16 A. That sounds right. I don't know who created the
17 regulations. Someone in the government did and Kathleen
18 Hawk-Sawyer was the director of the Bureau of Prisons so it
19 might make sense she is the one who did it, and the time frame
20 of '96 is correct because I believe they were either enacted in
21 May '96 or became effective then.
22 Often when you create a regulation it might say we
23 create the regulation as of today and it becomes effective in
24 60 days. So sometime in '96 someone in the government, perhaps
25 Kathleen Hawk-Sawyer, the director of the Bureau of Prisons,
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1 created that regulation.
2 Q. And the first thing that was done was to publish the
3 proposed regulation in the federal register, correct?
4 A. I assume that is the way it works.
5 Q. And then after a while it goes into this Code of Federal
6 Regulations that you told us about the last time you were here?
7 A. Correct.
8 Q. And that way anybody can look it up and see what the
9 regulation says?
10 A. Correct.
11 Q. Now, under this regulation, then, pursuant to 28 C.F.R.
12 Section 501.3, there are these Special Administrative Measures,
13 correct?
14 A. Correct.
15 Q. Did you have a role in drafting this SAM, or special
16 administrative measure, we are looking at now?
17 A. The measure, yes. The regulation happened without my
18 involvement.
19 Q. We have moved on from the regulation. I am asking about
20 the SAMs. You did have a role in that?
21 A. In the SAMs, yes. I don't know if I drafted this
22 notification or not. I believe in the papers that were turned
23 over to you whatever I sent down to Washington you have and
24 this typeface doesn't look like typeface I would have created
25 but the language may have come from something I wrote. It may
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1 have been an edited version. So I think I played a role in the
2 SAMs for sure. In the notice I am sure I submitted a draft
3 notice and I just can't know as I sit here now how much this
4 corresponds to what I submitted.
5 Q. Well, if I had more documents I would help you, but what I
6 want to do is look at -- would you please read the second
7 paragraph here beginning with "the procedure."
8 A. Sure.
9 "The procedures are reasonably necessary to prevent
10 you from engaging in additional terrorist activities.
11 Moreover, the these procedures are the least restrictive
12 available means to prevent you from engaging in, or assisting
13 others from engaging in, or soliciting future terrorist actions
14 or activities. Accordingly, the following special
15 administrative procedures will be implemented by the Bureau of
16 Prisons," and then it continues.
17 Q. And it continues and that is what we have been talking
18 about.
19 Do you see the words "least restrictive available
20 means" there?
21 A. Yes.
22 Q. Do you remember, going back that far, were those words in
23 your initial draft?
24 A. I don't know but I think they might have been in the
25 regulation, "least restrictive available means." Having not
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1 looked at that regulation in a long time, I think the
2 regulation said if you are concerned about safety, then the
3 Attorney General can direct the Bureau of Prisons to impose
4 conditions to make sure people are safe but also that you
5 should explore the least restrictive available means, so you
6 don't say why don't we just do everything possible; that you
7 will want to balance it, make sure people are safe but do it in
8 the least restrictive available means. So those words probably
9 refer back to the regulation. Whether I put it in my draft or
10 not, I don't know.
11 Q. Now, thinking back to that time, did the words "least
12 restrictive available means" have any significance for you in
13 terms of a body of law that you knew about or that you were
14 concerned about?
15 MR. MORVILLO: Objection.
16 THE COURT: Overruled.
17 A. I wasn't thinking about any particular case law. If those
18 words appeared in the regulations I was referring to that, but
19 I understood the concept. Lots of law is based upon concept
20 and reasonable balancing that you won't say we will do
21 everything to make sure the person never communicates, you will
22 do it at least in a restrictive way. So, for example, if you
23 didn't have a view of least restrictive you would say how about
24 no visits, no telephone calls, no contact, no attorneys. That
25 ends everything. And what this is saying is, well, if you have
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1 a system where you can do anything you want, speak to anyone
2 you want at any time, then messages can get out very, very
3 easily.
4 If you say you are basically precluded from no contact
5 with anyone at any time, well, you are much safer but it's not
6 the least restrictive available means, and so what I tried to
7 write and whatever I wrote was a sense of, okay, if we are
8 concerned about messages being passed in a visit, we allow the
9 visit, we put these conditions on it. If we are concerned
10 about messages being passed in a phone call, then one of the
11 things we should do is make sure if a phone call is placed that
12 the phone call isn't patched into a third party where we can't
13 control it and that also the phone call goes into an attorney's
14 office as an officer of the court and the attorney is present
15 so that they can verify who is on there.
16 So I wasn't thinking of case law. I was thinking of
17 the concept that we should try to do this in a way that
18 balances security against other needs and I think that language
19 came from the regulation.
20 Q. Specifically, sir, just one question about this: Did the
21 language "least restrictive available means" signify anything
22 to you in terms of any part of the American Constitution?
23 A. Well, the whole balancing is balancing constitutional
24 interests. But I wasn't looking at a particular case. I
25 understood, although what time was this, April '97? My
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1 understanding is that the trial had ended so the right to
2 counsel for trial had been satisfied. After that my belief is
3 that I don't know where the appeal stood. At a certain point
4 you may have a right to counsel for your appeal that isn't
5 grounded in the Constitution, it's grounded in the laws. Even
6 if it wasn't protected by the Constitution or guaranteed by the
7 Constitution that you have a right to counsel on appeal, we
8 were trying to allow that. So I was looking at balancing the
9 interests. I wasn't doing a study of constitutional law. I
10 understood that we should balance the interests whether or not
11 the Constitution required it. And that is what we were trying
12 to do.
13 Q. You recognize that there were questions here about lawyer
14 relations to clients, correct?
15 A. Yes.
16 Q. There were questions here about the constitutional rights
17 that Omar Abdel Rahman still had, right?
18 MR. MORVILLO: Objection.
19 THE COURT: Overruled.
20 A. Actually I am not sure that on the right to counsel if the
21 trial was over my understanding is in the Constitution you are
22 guaranteed a right to a jury trial. My belief is that the
23 appellate right may be a statutory right. I understood that he
24 was seeking to have access to counsel. We were trying to allow
25 that within the grounds for safety but if someone had told me
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1 that the law says that you don't have a constitutional right to
2 appellate counsel, we were still letting him have that right.
3 So I didn't understand that as far as worst case stood, it's
4 '97, he was convicted in '95, he was sentenced in '96, he is an
5 inmate. At a certain point your rights to trial counsel
6 evaporate but we were still trying to allow him to have access
7 to counsel within reason.
8 Q. Is it your view, sir, that influenced your writing that a
9 man who is convicted of a federal felony and is pursuing a
10 direct appeal has no constitutional right to counsel?
11 A. What I am saying is -- you were asking me if I was
12 recognizing that this was a constitutional issue and my point
13 was I was going at least as far as the Constitution, if not
14 further, because if you saw, even when his appeal was denied,
15 even when cert. was denied in the Supreme Court there was no
16 more pending case. We still allowed him access to counsel and
17 I don't believe the Constitution required that. And so my
18 point is that was I recognizing the Constitution, I think I
19 went further than that in that we were still allowing access to
20 counsel even when his case was over.
21 Q. We will leave that for later.
22 MR. MORVILLO: Objection.
23 Q. You went to a meeting, did you not, sir, in Washington,
24 D.C.?
25 THE COURT: There was no question.
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46TSSAT2 Fitzgerald - cross
1 Go ahead.
2 Q. Did you attend a meeting at the FBI headquarters in
3 December '97?
4 A. I am not sure. I think I know the document you are
5 referring to so I could explain.
6 Q. I am not offering a document, Mr. Fitzgerald, I am asking a
7 question. I would be happy if your recollection is exhausted
8 to place before you anything you like as a matter of refreshing
9 your recollection.
10 A. I was going to refer to the contents of the document.
11 Q. Would you like to look at it to refresh your recollection
12 about dates, sir? Would that help you?
13 A. No, it's not the date. I can tell you, I was invited to a
14 meeting. I don't know if I attended in person or if I attended
15 by phone. That is all I was trying to say. If you are
16 referring to the November '97 having looked at the document, it
17 does show I was invited to an attend a meeting but I don't have
18 a memory of actually going to the FBI building and so I may
19 have attended by phone.
20 That is all I went meant to say.
21 Q. There was a meeting in November or December '97 at the
22 Hoover Building about Sheikh Abdel Rahman, correct?
23 A. I believe there probably was and the only qualifier I am
24 making is I saw an invitation to go to a meeting which would
25 have been at the Hoover Building. I don't remember attending
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46TSSAT2 Fitzgerald - cross
1 it. I assume the meeting went forward and it was scheduled for
2 the Hoover Building. I assume it happened there. Lots of
3 times in Washington the meetings move. So you said was there a
4 meeting at the Hoover Building, I believe there was. And I
5 could have been there. I just don't remember going there. I
6 do believe I participated.
7 I am sorry, I am trying to be precise.
8 Q. And the meeting involved people from the Bureau of Prisons,
9 correct?
10 A. Yes.
11 Q. They were senior people from the Bureau of Prisons,
12 correct?
13 A. Yes.
14 Q. Do you remember whether Kathleen Hawk, also known as
15 Kathleen Hawk-Sawyer, was present?
16 A. I don't remember that and I saw from the invitation to the
17 meeting that she asked for the meeting so I would assume she
18 was there. Part of why I think I didn't go is I don't ever
19 know if I ever met Ms. Kathleen Hawk-Sawyer in my life and I
20 would have thought if I met her I would remember that, but she
21 could have been on the telephone so I don't know.
22 Q. For our purposes, Kathleen Hawk or Kathleen Hawk-Sawyer was
23 director of the Bureau of Prisons, Justice Department, pretty
24 much through the Clinton Administration, right?
25 A. I believe so.
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46TSSAT2 Fitzgerald - cross
1 Q. Now, the invitation to the meeting involved a memorandum to
2 the deputy Attorney General, correct?
3 A. Correct.
4 Q. And at that time in '97, was that Jamie Gorelick?
5 A. I believe so.
6 Q. And Jaime Gorelick had been in the department pretty much
7 since President Clinton was inaugurated, right?
8 A. I believe so. She was Attorney General Janet Reno's first
9 deputy Attorney General and she served until --
10 Q. Didn't she request Phil Heymann as deputy?
11 A. I don't know the year she served. She was there for a
12 number -- probably 2 years. It seems like most Deputy Attorney
13 General's serve about 2 years.
14 Q. Now, the concerns at this meeting include the fact that
15 Mr. Ramsey Clark had filed a lawsuit about the conditions in
16 which Sheikh Omar Abdel Rahman was being held there in
17 Springfield, correct?
18 MR. MORVILLO: Objection.
19 THE COURT: Basis?
20 MR. MORVILLO: Relevance, your Honor.
21 THE COURT: Overruled.
22 A. That was a small part of it.
23 Q. Now, earlier you also said that at that time there were
24 other reports that you said were false about Sheikh Abdel
25 Rahman's situation, correct?
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46TSSAT2 Fitzgerald - cross
1 A. Correct.
2 Q. You were also concerned about those, right?
3 A. Very much concerned.
4 Q. And we have heard about that.
5 A. Okay.
6 Q. Now, to your understanding did the Bureau of Prisons take
7 Mr. Clark's lawsuit challenging these conditions seriously?
8 A. I believe so. My recollection was that the lawsuit was
9 filed, as most of them are and should be, in the place where
10 the prison is situated. So Springfield is in Missouri. So the
11 lawsuit was being handled in Missouri and so an Assistant U.S.
12 Attorney out there was handling it and there is a branch in the
13 Department of Justice in Washington I think called the Federal
14 Programs Branch which handles lawsuits against the federal
15 government that might overlap with other cases, so they were
16 treating it, the lawsuit, as a serious matter they had to
17 address. But I was not very involved in what Washington and
18 Missouri were doing in that lawsuit, although I do believe I
19 spoke to people involved because they asked me questions.
20 Q. Of course you knew by that time who Ramsey Clark was,
21 right?
22 A. Well, yes, I knew from the trial. He had been there.
23 Q. And you respected him as a lawyer, correct?
24 A. I got along well with him as a lawyer. I treated him as a
25 former Attorney General like any other attorney. You treat
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46TSSAT2 Fitzgerald - cross
1 attorneys how they treat you. We got along fine and you just
2 judge people by how they treat you.
3 Q. Well, you said you were not really involved in how to
4 respond to that lawsuit, correct?
5 A. Correct. I do remember speaking to the attorney and I
6 don't know the attorney's name. I think it was a woman in
7 Missouri who asked me questions but I wasn't preparing the
8 pleadings. I wasn't wasn't going to court so that was someone
9 else to do with more expertise in that area.
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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46TMSAT3 Fitzgerald - cross
1 Q. But it is clear that if you want to challenge your prison
2 conditions, your understanding is, you've got to get together
3 and file a lawsuit at a place where you're held?
4 A. If you are going to file the lawsuit in court, it should be
5 filed in the place where you're held.
6 Q. In connection with that meeting, you also considered what
7 the United States Government ought to do about reports
8 concerning Sheikh Abdel Rahman's views and the conditions in
9 which he is being held, correct?
10 A. I think I was concerned about Sheikh Rahman's getting word
11 out about his conditions, which were incorrect at what it might
12 cause. I don't recall focusing on his views, although the
13 whole SAMs was to make sure that views supporting violence
14 didn't get out. The focus at that meeting was what to do with
15 word that was being spread that I thought was inaccurate about
16 how he was being treated in prison and the risk that he might
17 die.
18 Q. As of that time you were aware that a statement had been
19 issued attributed to him with respect to the nonviolence
20 initiative or cease fires, as it is called, in Egypt?
21 A. I believe so. And I think I was focused on a different
22 statement at the time of that meeting.
23 Q. Were you worried yourself about what would happen or what
24 could happen if Sheikh Abdel Rahman died in U.S. custody?
25 A. Absolutely.
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46TMSAT3 Fitzgerald - cross
1 Q. And from your talking to other government officials who
2 spoke to you within the scope of their employment, they were
3 concerned also, correct?
4 A. Absolutely. We were concerned about what would happen if
5 Sheikh Omar Abdul Rahman died. And if anyone thought that he
6 died because he had been abused in prison, we were very, very
7 concerned.
8 Q. Now, at that time you considered from an investigator or
9 Assistant U.S. Attorney perspective what might be done,
10 correct?
11 A. Correct. But I think I was trying to think beyond my role
12 as a prosecutor and just trying to understand this was a unique
13 situation and giving advice as how we ought to deal with this,
14 not just as a prosecutor, but in the national security realm
15 how to deal with this to make sure people are safe.
16 Q. Did you ever issue a subpoena for Mr. Clark's long-distance
17 toll records?
18 A. I don't believe I did.
19 Q. Did anyone else do that, to your knowledge, at that time?
20 A. If someone would have done it, it would have been me, but I
21 don't think I even discussed it at that time or doing it in the
22 future.
23 Q. Did you ever put in place a device for recording attorney
24 telephone calls made by Sheikh Omar Abdel Rahman from the
25 prison?
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46TMSAT3 Fitzgerald - cross
1 A. No. I think at that meeting or related to that meeting I
2 discussed that as something we should think about, and I think
3 I even proposed it in the next modification of the SAMs, but it
4 wasn't put in place.
5 Q. You proposed it?
6 A. Yes.
7 Q. And who would have had the authority within the Reno
8 Justice Department to act on that proposal?
9 A. Well, the ultimate authority would have to be Attorney
10 General Reno, and the exact proposal is written in a document,
11 I think, from May of '98, but it would have notified the
12 attorneys that your calls will be recorded and that if there is
13 reasonable suspicion to believe that something had been abused
14 on the tapes, they might be reviewed without further notice to
15 you. I wrote that into a proposed SAM modification and I wrote
16 a note in the box to the person reviewing in Washington that I
17 didn't want this to be approved without someone paying
18 attention to it. You don't hand someone a 12-page document,
19 stick in a paragraph and have them renew it, thinking it is the
20 same as the last time. And when it came back, it wasn't in
21 there.
22 Q. The paragraph wasn't there?
23 A. Correct.
24 Q. So somebody up the line said, let's don't do it that way,
25 right?
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46TMSAT3 Fitzgerald - cross
1 A. Correct.
2 Q. Later on, sir, Sheikh Omar Abdul Rahman was moved from
3 Springfield to Rochester, correct?
4 A. Correct.
5 Q. Now, was that due in part to this -- to the things that
6 were being talked about at that meeting in the November,
7 December '97 period?
8 A. I don't know if it was discussed at that meeting or
9 impacted by that. It was because we moved him to Rochester,
10 the government, Bureau of Prisons, moved him to Rochester so he
11 could have access to the Mayo Clinic. It was an effort to make
12 sure that he had the best medical care we could give him, which
13 is both trying to make sure that an inmate was treated
14 properly, but also to make clear to anyone who would check,
15 wanted to verify this, that he was getting the medical
16 attention he deserved and he was not being abused in prison and
17 his medical needs were not being ignored.
18 Q. You wanted everybody who was concerned to know and believe
19 that you were taking care of his medical needs, right?
20 A. Everyone, but I wanted to make sure particularly people who
21 had been told that he had been abused and who had threatened to
22 kill people as a result, to know that we had done things
23 correctly.
24 Q. And among the people who was telling the government that he
25 hadn't been treated right was Mr. Ramsey Clark, right?
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46TMSAT3 Fitzgerald - cross
1 A. I believe so. The lawsuit made those allegations. We were
2 concerned about other statements, yes.
3 Q. Among the people who was telling you this was Mr. Ramsey
4 Clark, correct?
5 A. Correct.
6 MR. TIGAR: Your Honor, I'm about to go on to another
7 subject. If this is a time to take a break, then I would
8 appreciate it.
9 THE COURT: Ladies and gentlemen, we will take our
10 mid-morning break. Please remember to follow my continuing
11 instructions. Please don't talk about the case. Keep an open
12 mind. Have a good break. See you shortly.
13 All rise, please. Please follow Mr. Fletcher to the
14 jury room.
15 (Jury not present)
16 THE COURT: The witness may step down.
17 10 minutes.
18 (Recess)
19 (At the side bar)
20 THE COURT: I don't want to interrupt, but there were
21 a few juror issues and I will deal with them, but I just wanted
22 to bring them to your attention.
23 The juror in seat No. 12 wants to know if the juror
24 can wear a hat because the juror is under the air conditioning
25 vent, and I don't have a problem with the juror wearing a hat
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46TMSAT3 Fitzgerald - cross
1 under the air conditioning vent.
2 The juror who is going from Newark Airport on Thursday
3 wants to know whether the juror can go.
4 I'll make -- I'll tell Mr. Fletcher he can tell juror
5 12 it is okay to wear the hat. The juror from Newark I'll tell
6 Mr. Fletcher to say, okay. And I'll tell all of the jurors
7 right now we will sit only for a brief period of time on
8 Thursday morning. It may be that we don't sit on Thursday.
9 But right now it will be for a brief time on Thursday morning.
10 The juror in seat No. 9 asked whether I had made a
11 ruling yet on her trip in September, and I will tell
12 Mr. Fletcher to tell the juror before I decide on that that she
13 should really try to change the trip.
14 MR. PAUL: I thought that's where we left it, that she
15 was going to get back to us.
16 THE COURT: It absolutely is.
17 But Mr. Fletcher is going to tell her, please.
18 I intend to see juror No. 3 at the end of the lunch
19 hour as the most convenient time because I don't want to keep
20 her at the end of the day and hold up the vans.
21 Finally, I just ask that everyone please keep their
22 voice up and speak into the microphone. The acoustics in this
23 courtroom are not very good. When I asked Mr. Stern to keep
24 his voice up, one of the jurors visibly mouthed, thank you.
25 Just a little slower and a little louder for me, too. That's
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46TMSAT3 Fitzgerald - cross
1 it.
2 MR. TIGAR: Have I been wandering away from the
3 microphone, your Honor?
4 THE COURT: You have not been wandering too much, but
5 keep your voice up. You're somewhat away from the microphone.
6 Between you and Mr. Morvillo, sometimes I miss the exchange.
7 MR. PAUL: Judge, you may want to suggest to the
8 jurors, it is okay to raise their hand if they are not hearing
9 at any particular moment.
10 MR. STERN: We need a ruling on the redactions of Mr.
11 Fitzgerald's documents.
12 THE COURT: I reviewed them and the redactions are
13 fine, in view of the limitation that the government ended up
14 doing.
15 (In open court)
16 THE COURT: Bring in the jury.
17 (Jury present)
18 THE COURT: Ladies and gentlemen, if at any time you
19 can't hear, just raise your hand. I know I have asked people
20 to speak up, but if you can't hear at any time, whether what I
21 say or what anyone else says, just raise your hand and we will
22 be attentive to you. This is not the best courtroom in terms
23 of acoustics, which is why we need these microphones.
24 Mr. Fitzgerald is on the stand.
25 Mr. Fletcher.
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46TMSAT3 Fitzgerald - cross
1 THE DEPUTY CLERK: Mr. Fitzgerald, you're reminded
2 you're still under oath.
3 THE WITNESS: Yes, sir.
4 THE COURT: Mr. Tigar, you may proceed.
5 MR. TIGAR: Thank you, your Honor.
6 BY MR. TIGAR:
7 Q. Mr. Fitzgerald, first, I forgot to ask you, at the trial of
8 Sheikh Omar Abdul Rahman you said that he had a translator and
9 he wore earphones?
10 A. That's my recollection. I sat at the front seat and he was
11 in the corner, so I didn't look back a lot, but a lot of them
12 had headphones, and I'm sure he did.
13 Q. My question was, Mr. Yousry was not one of those
14 translators that worked at that trial in that role, correct?
15 A. I don't believe so. I don't remember who was there, but I
16 have no reason to think it was Mr. Yousry.
17 Q. When we broke we were talking about the Federal
18 Correctional Institution in Rochester, Minnesota, correct?
19 A. Yes.
20 Q. And you mentioned the Mayo Clinic, yes?
21 A. Yes.
22 Q. The Mayo Clinic is in Rochester, right?
23 A. I believe so.
24 Q. Sheikh Abdul Rahman was moved to the Federal Correctional
25 Institution or FCI or FCH in Rochester, correct?
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46TMSAT3 Fitzgerald - cross
1 A. Correct. He was in a prison facility so that if he had
2 access to doctors he wasn't in the regular part of the Mayo
3 Clinic, clearly.
4 Q. That's a prison, correct?
5 A. Yes.
6 Q. Have you ever been there?
7 A. No, I have not.
8 Q. Now, moving forward to the discussion --
9 THE COURT: I'm sorry. When you said that's a prison,
10 you were referring to FCI Rochester rather than the Mayo
11 Clinic?
12 THE WITNESS: That's correct. Rochester is a prison
13 that has medical facilities, but it is separate and apart from
14 the Mayo Clinic. I think it has access to doctors from the
15 Mayo Clinic. But where Sheikh Omar Abdul Rahman was, he was in
16 a federal prison facility for people with medical conditions,
17 as I understand it, that I have not personally visited.
18 Q. In your experience, there are several prison facilities
19 maintained by the Bureau of Prisons for prisoners with medical
20 conditions, correct?
21 A. Yes, sir.
22 Q. And we have mentioned two of them, but there are others?
23 A. Yes, sir.
24 Q. Earlier we were talking about the SAMs. As a SAM would
25 need to be renewed, would you be the person who drafts the
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46TMSAT3 Fitzgerald - cross
1 proposed new language or the proposed renewed language?
2 A. Sometimes. If it was renewed with no changes, then it
3 could be that I would just write a short memo that said at the
4 end of the 120 days, these SAMs are expiring next month, and we
5 believe the conditions continue, so we ask that the Attorney
6 General renew them for 120 days.
7 But if there were changes to be made, then if there
8 were changes coming from me or my office that we suggested, I
9 would write in the proposed changes, but I saw at times that
10 changes were made by the Department of Justice that I didn't
11 suggest, and I don't know in other SAMs sometimes defense
12 attorneys might suggest things to us that we agree to. So I
13 contributed some proposed modifications, some of which were
14 adopted at times, some of which were not.
15 Q. Beyond the SAMs there were the affirmations, correct?
16 A. Correct.
17 Q. Now, you drafted the affirmations that have been talked
18 about in this case, correct?
19 A. I believe so. I believe I proposed the first affirmation
20 and I don't, as I sit here now, recall whether anyone changed
21 it or edited before it became the final first affirmation, but
22 I believe I took the first attempt at it.
23 Q. Let me place on the overhead what's been received in
24 evidence here as Government's Exhibit 7. Someone is pressing a
25 button and I think we are going to see it here in a minute.
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46TMSAT3 Fitzgerald - cross
1 I have it on my screen. I don't see it -- there it
2 goes.
3 This is Government 7, which is an affirmation
4 addressed to Lynne Stewart, correct?
5 A. Correct.
6 Q. And you drafted that, right?
7 A. If that's the one that was signed -- if I could just see
8 the bottom.
9 Q. Of course.
10 A. Yes. I believe I drafted that and I would describe my
11 answer the same way. I took the initial draft of this. I
12 don't know if anyone edited it. I can't remember back four
13 years, but this is probably mostly my drafting.
14 Q. Now, when you drafted it did it have to be approved by
15 somebody in Washington, D.C.?
16 A. I'm trying to remember now. The SAMs themselves had to be
17 approved in Washington, D.C. So when you showed me your LS-12
18 Exhibit, that notification was approved in D.C. I believe I
19 told people what the affirmation said and they would have sent
20 it to Washington,D.C., but I can't remember if they had to sign
21 off on it or not. I don't remember as I sit here now.
22 Q. And you will see -- I guess I can do -- I don't know how to
23 do it. There it is. The arrow is more or less pointing to
24 pursuant to 28 U.S.C. Section 1746, correct?
25 A. Correct.
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46TMSAT3 Fitzgerald - cross
1 Q. Now, who decide -- withdrawn.
2 Did you decide to put that pursuant to Section 1746 in
3 there?
4 A. I probably did. Looking at one clause four years later or
5 seven years after it started, I can't remember why I put
6 particular words in there, but most affirmations, I believe,
7 say that. So my guess is that I put it in there.
8 Q. It says, affirms under the penalties of perjury. Do you
9 see that?
10 A. Yes.
11 Q. Do you know whether there is a perjury charge in this case?
12 MR. MORVILLO: Objection.
13 Q. Yes or no.
14 MR. MORVILLO: Objection.
15 THE COURT: Rephrase the question.
16 Q. Do you know, sir, whether or not Ms. Stewart is charged
17 with perjury in this case?
18 MR. MORVILLO: Objection.
19 A. I don't know.
20 THE COURT: The witness doesn't know, in any event.
21 Q. And do you remember describing Section 1746 to the jury in
22 your direct examination?
23 A. Yes.
24 Q. And you said that it says that it is an attorney that
25 doesn't have to go before a notary, correct?
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46TMSAT3 Fitzgerald - cross
1 A. I believe so.
2 Q. And, in fact, sir, it is not limited to attorneys. Section
3 1746 can apply to anybody, correct?
4 A. I'm not aware of that, but I haven't read it in a while.
5 Q. Have you exhausted your recollection?
6 A. Yes.
7 MR. TIGAR: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. I show you now a Westlaw download summary and ask you to
10 look at that and tell us whether that refreshes your
11 recollection?
12 A. I stand corrected. It appears it is not limited to
13 attorneys, that someone could make a statement under 1746 as if
14 it was sworn in front of a notary.
15 MR. TIGAR: May I retrieve it, your Honor?
16 THE COURT: Yes.
17 Q. You also testified on direct examination about Government
18 Exhibit 9, which I'm putting up here, and that was your letter
19 of August 3, 2000.
20 A. Correct.
21 Q. Correct?
22 A. Yes.
23 Q. To that letter of August 3, 2000 you had attached some
24 newspaper articles, correct?
25 A. Correct.
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46TMSAT3 Fitzgerald - cross
1 Q. Now, before May of 2000, had you discussed Luxor or the
2 events of Luxor with Ms. Stewart?
3 A. I don't recall. I don't recall doing so.
4 Q. Now, in this letter of August 3 you said here that this
5 office is recommending to the Office of Enforcement Operations
6 that you must execute an amended affirmation recognizing the
7 security of the consequences of a violation of the Special
8 Administrative Measures before any more legal visits can even
9 be contemplated.
10 Do you see that?
11 A. Yes. Except the word severity instead of security.
12 Q. I'm sorry. Severity. Excuse me. My mistake.
13 A. No problem.
14 Q. And you said you enclosed such an affirmation, correct?
15 A. Correct.
16 Q. Now, after you sent that letter, Mr. Fitzgerald, you had
17 some negotiations with Ms. Stewart's counsel, Mr. Cohen,
18 correct?
19 A. Correct.
20 Q. And during that same period of time you were having
21 negotiations with Mr. Clark, correct?
22 A. Correct.
23 Q. And the subject of those negotiations was the kind of
24 statement that the lawyers would be required by you to sign
25 before they would go back in and see Sheikh Abdul Rahman,
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46TMSAT3 Fitzgerald - cross
1 correct?
2 A. Correct.
3 Q. As far as you were concerned, if they signed something that
4 you agreed on with them, then the visits would resume, correct?
5 A. As far as I was concerned, if they signed something that I
6 agreed upon, then I would pass on to others that that
7 affirmation was acceptable to me. The final decisions weren't
8 being made by me in terms of whether the person got in to see
9 Omar Abdel Rahman. The Special Administrative Measures were
10 controlled by the Attorney General.
11 So I wrote the letter to say -- I don't have it in
12 front of me anymore, but it was something to the effect of that
13 I would recommend to the Department of Justice that before
14 visits could even be contemplated, meaning before they could
15 even think about letting someone back in, we should get a
16 signed affirmation that included new terms.
17 Q. And that's what you meant by this office's. That meant the
18 U.S. Attorney's Office?
19 A. Yes.
20 Q. Then you would negotiate something with Ms. Stewart or
21 Mr. Clark or whomever. If you signed off on it, then you would
22 send it to Washington and somebody there would make a decision,
23 correct?
24 A. Yes. But not about the affirmation. If the affirmation
25 were signed in the form that was acceptable to us, that would
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46TMSAT3 Fitzgerald - cross
1 be the minimum we would require. And then it would be up to
2 someone else whether the visits would go forward.
3 Q. So the decision as to whether or not the decisions would go
4 forward always rested with the Bureau of Prisons, correct?
5 A. Well, the Attorney General could order the Bureau of
6 Prisons to do something or not do something, but it is fair to
7 say that I was saying without this affirmation I was going to
8 be telling Washington not to allow the visits to happen.
9 So I think the intent of the letter was to say, if you
10 want to go and have a visit, if you want to have a chance of
11 having a visit, then you should sign something in the form
12 acceptable to us and here is enclosed a draft. I wasn't
13 guaranteeing a visit if it was signed. I was guaranteeing that
14 if it wasn't signed I would oppose it.
15 Q. You would oppose it?
16 A. Yes.
17 Q. And the decision then would be made by this OEO, correct,
18 or?
19 A. Among others.
20 Q. Somewhere off in Washington, right?
21 A. I was referencing OEO. The decision would be made by the
22 government at large, not just OEO.
23 MR. TIGAR: May I approach, your Honor?
24 THE COURT: Yes.
25 Q. I am going to show you, sir, what I have marked as LS-11
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1 and ask you whether that is a letter that you sent?
2 A. Yes. It looks familiar. It is a letter with my signature
3 on my letterhead that's dated in January of 2001.
4 Q. Would you please look at the attachment, sir, and just, to
5 the best of your present memory, tell us, was that what was
6 attached to this letter of yours?
7 A. Yes. Both because I generally remember the letter and also
8 the text of the letter says that I'm enclosing something and it
9 describes the document enclosed and shows that he put certain
10 changes in boldface so that the attorney could see what I had
11 changed. And in particular some of the changes would be in
12 italics to draw Mr. Clark's attention to the changes in
13 italics, and what is enclosed looks like what I did. And it
14 includes the three sections in bold that I said would be in
15 bold, and it includes one of the three sections in italics.
16 This looks like what I sent in January of 2001.
17 MR. TIGAR: We offer LS-11, your Honor.
18 MR. MORVILLO: No objection.
19 THE COURT: LS Exhibit 11 received in evidence.
20 (Defendant's Exhibit LS-11 received in evidence)
21 Q. I'll place the first page on the board here. And that's
22 your letter to Ramsey Clark that you have just been talking
23 about, correct?
24 A. Correct.
25 Q. And if I move that down just a little bit we see your
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1 signature there, right?
2 A. Yes.
3 Q. And that's dear Ramsey, correct?
4 A. Yes.
5 Q. Were you on a first-name basis with Attorney General Ramsey
6 Clark?
7 A. I didn't call him Attorney General. I called him Ramsey.
8 But I think I was on a first-name basis with every defense
9 counsel I dealt with. I don't think I ever -- other than in
10 court I would say Mr. Tigar and Mr. So and So in front of the
11 court, but I think I tried to talk to most defense counsel on a
12 first-name basis, and they did the same with me.
13 Q. You mentioned that there are phrases in italics and phrases
14 in bold, right?
15 A. Correct.
16 Q. You're saying, I propose, correct, in the letter. You
17 propose the phrase marked and so on?
18 A. Correct.
19 Q. Everyone can see it. This is a part of a negotiation with
20 Mr. Clark about what's to be signed, correct?
21 A. Correct. It responded to a letter he sent me just before
22 this saying that he would not sign the affirmation because of
23 three areas that gave him difficulty. And he explained, I
24 think, in that letter why it was that three particular phrases
25 bothered him, and so I was coming back with a proposal that
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1 said, basically, I understand what your concerns are, and why
2 don't we address those three concerns with the language put in
3 bold to see whether or not that would make our disagreement go
4 away.
5 Q. Now, I don't know if the bold shows up here, but what we
6 are looking at now is the paragraph 4 of what you sent him,
7 correct?
8 A. Correct.
9 Q. And when you were here last we looked at several paragraph
10 4s, right?
11 A. Correct.
12 Q. And you had a fellow working in your office named Gerard
13 Francisco, is that right?
14 A. Yes.
15 Q. He was the paralegal who was in charge of keeping these
16 files, right?
17 A. Correct.
18 Q. He showed us other paragraph 4s.
19 A. He is very organized.
20 Q. The language carried out by persons using his name, you see
21 that?
22 A. Yes.
23 Q. And you were proposing that to Mr. Clark because it is a
24 more neutral way of expressing concerns about Luxor, correct?
25 A. Yes. My understanding is that the initial language said,
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1 had been carried out in his name, and then Mr. Clark wrote back
2 something to the effect of, well, you don't know if other
3 people are just doing it and using his name. So I said, okay,
4 why don't we change the language just to see if we can resolve
5 this by saying, carried out by persons using his name, which
6 communicated my thought that people are doing bad things in his
7 name, but also incorporated Mr. Clark's concern that it made
8 clear that it was those people using his name without
9 confirming or denying whether Mr. Omar Abdel Rahman agreed. So
10 I thought that was a fair compromise.
11 Q. You proposed something, Mr. Clark objected and gave you
12 reasons, and then you modified your position to try to reach
13 agreement, correct?
14 A. Exactly.
15 Q. Now, could we look at the language then. The italics
16 language says: Islamic Group?
17 A. Yes.
18 Q. Then the italics begin: With which Abdel Rahman has been
19 affiliated and has never disowned. Do you see that?
20 A. Yes.
21 Q. Again, that was in response to a negotiation with
22 Mr. Clark?
23 A. Yes.
24 Q. Now, I want to go back to your letter to Ms. Stewart of
25 August 3, 2000. Now, to that letter you attached a proposed
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1 SAM affirmation, correct?
2 A. Yes.
3 Q. And I am going to show you now the page from Government
4 Exhibit 9 that contains that proposed language, right?
5 A. Yes.
6 Q. And here in your proposal, your proposal of August of 2000,
7 you have -- I'm putting my finger on it -- carried out in his
8 name, correct?
9 A. Yes. And that was the proposal made to Ms. Stewart and to
10 Mr. Clark in 2000 and that's what Mr. Clark had objected to,
11 and I proposed the compromise in January.
12 Q. Then we have down here where my finger is Islamic Group
13 with which Abdel Rahman is affiliated, correct?
14 A. Exactly. And that's what I changed later in the italics
15 for Mr. Clark when he said he had an issue with that.
16 Q. And this was your proposal, correct?
17 A. You're holding in your hand --
18 Q. I'm holding Government Exhibit 9. Excuse me. That was
19 part of the August 3 letter and that was your proposal to
20 Ms. Stewart, correct?
21 A. Yes.
22 (Continued on next page)
23
24
25
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1 Q. Now, sir, if we look at Government Exhibit 12 in
2 evidence --
3 A. I have that here.
4 Q. You do, thank you.
5 I am going to put up on the board paragraph 4 and I am
6 going to move it down and we are going to see that that is
7 actually signed by Ms. Stewart on May 7, 2001. Do you see
8 that?
9 A. Correct.
10 Q. And that is the first one that she signed after this
11 dispute came up in June-July-August 2000, correct?
12 A. I believe so.
13 Q. And if we look, here you did incorporate this language
14 carried out by persons using his name, right?
15 A. Yes.
16 Q. And then we have the language which the United States
17 believes Abdel Rahman was affiliated with, correct? Do you see
18 that language?
19 A. Yes.
20 Q. "Which the United States believes."
21 Now, the language "which the United States believes"
22 was not in the one that Ramsey Clark signed, correct, or that
23 you proposed to Ramsey Clark?
24 A. You may be right. If I can just look.
25 Q. Would you please take a look at Exhibit 11, LS-11.
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1 A. Yes, correct.
2 Q. So "which the United States believes" represents -- how
3 would you say it -- a little more neutral form or it converts
4 it from a statement into an allegation?
5 How would you describe the meaning of what that
6 language "which the United States believes" is doing there?
7 A. Okay. I should make one thing clear. The letter I wrote
8 to Mr. Clark in January 2001 is dated January 8. I believe
9 that would be a Friday because I believe January 11, 2001 would
10 be the day I started this 7-month trial. So I am even
11 surprised I wrote that letter that Friday because I was
12 probably fairly busy.
13 The May 7, 2001 affirmation by Ms. Stewart was signed
14 in the middle of the trial which went through July and so I
15 wasn't probably involved in the further negotiations, but
16 whoever did in the office I think the whole concept was that
17 for the government --
18 Q. Hold it just a second, sir. You don't have any personal
19 knowledge as you sit there today how and why this language was
20 there, is that right?
21 A. My best belief is that somebody else may have put that
22 language in but they may well have come to me during the trial
23 to say do you want to make one more change but --
24 Q. I understand "may well have," sir. And there are other
25 people we can call. I am just asking you as you sit there
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1 today do you know?
2 A. I don't remember a conversation about that language. I was
3 trying to answer your other question about what the difference
4 is and I will answer that, or not, if you want me to.
5 Q. I am going to leave that for the witness that actually was
6 there.
7 A. Okay.
8 Q. Good.
9 Now, sir, during all of the time that you were working
10 on the Rahman trial and thereafter, and right down to this good
11 day, you have been concerned about with the problem of
12 terrorism, is that right?
13 A. Yes.
14 Q. And you know, sir, in the battle against terrorism, it's
15 important to try to be right, correct?
16 A. Yes.
17 Q. Because, as you have expressed it, you can be dead right or
18 you can be dead wrong, right?
19 A. Yes.
20 Q. And with specific reference to Sheikh Omar Abdel Rahman, on
21 April 19, '95, you were mistaken?
22 A. Yes.
23 Q. Were you not?
24 A. Yes.
25 Q. And, in fact, speaking of that, did you speak about the way
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1 in which you were mistaken on the 16th of June of 2004?
2 A. If that was last Wednesday, yes.
3 Q. And were you speaking, sir, as a representative of the
4 Executive Branch of government?
5 A. I believe so. I was speaking as a witness before a
6 commission.
7 Q. And identified as the United States Attorney, correct?
8 A. Yes.
9 Q. And at that time you said that when you heard about the
10 August '98 bombings in Kenya and Tanzania, you said Bin Laden,
11 correct?
12 A. Yes.
13 Q. And when you heard about the Cole bombing you said to
14 yourself Bin Laden, correct?
15 A. Yes.
16 Q. But when you heard that the Murrah Building in Oklahoma
17 City had gone up, you thought the Blind Sheikh, right?
18 A. I thought that was a very real possibility and I was in the
19 courtroom within that day and that is why I told the commission
20 that your first raction can be right or it can be wrong, and I
21 had been right and I had been wrong and I recognize that.
22 Q. And you never thought Timothy McVeigh right at that time,
23 right?
24 A. That day when they arrested him and we found out the facts
25 I thought McVeigh. Before then I was concerned about the Blind
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1 Sheikh. The attack happened so my first reaction is the
2 thought was that he did it and that was obviously wrong.
3 Q. And you have been in law enforcement pretty much all your
4 professional life, correct?
5 A. Yes, 16 years.
6 Q. And would you agree with me that it's a good thing that the
7 first response or the first idea about a terrorist event that a
8 law enforcement person like yourself might have is always going
9 to be subject to review by the justice system?
10 A. Yes, I tell people when things happen don't jump to the
11 first conclusion. You might think that way but don't act that
12 way because what you think right away could be very right, it
13 could be very wrong, and that is why we have to find out what
14 the facts are.
15 Q. And one of the kinds of people that has a responsibility to
16 help you see where you are wrong is defense counsel, right?
17 A. Yes, defense counsel plays a role but basically the system
18 works where prosecutors check themselves and make sure you know
19 your facts before you act and then if you decide to act we are
20 not infallible, there is a court system, where a judge plays a
21 role, defense counsel plays a role, the jury plays a role, the
22 appeals court plays a role, and that is the system we have and
23 I respect that.
24 MR. TIGAR: I pass the witness.
25 MR. PAUL: We have no questions at this time.
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1 THE COURT: All right.
2 MR. MORVILLO: May I just have a moment to gather my
3 things here, your Honor?
4 THE COURT: All right.
5 REDIRECT EXAMINATION
6 BY MR. MORVILLO:
7 Q. Mr. Fitzgerald, you on cross examination by Mr. Stern, you
8 used the term mujahedeen when you were referring to the
9 photographs of Sheikh Abdel Rahman in Afghanistan. What does
10 that term mean?
11 A. Mujahedeen I used to mean fighters and mujahedeen are
12 people who fight in jihad, and jihad means struggle but you
13 have to figure out what the word means in a particular context.
14 But the mujahedeen are how fighters were described,
15 particularly in the fight against Russia, the Soviet Union
16 first, and later against the government that stayed on from '89
17 to '92, they were referred to as the mujahedeen.
18 Q. You testified on cross examination about the goals of the
19 Islamic Group and one of those goals I believe you testified
20 was the overthrow of the Egyptian government?
21 A. Yes.
22 Q. Are you aware of whether the Islamic Group had any other
23 goals?
24 A. My understanding is the Islamic Group at least putting it
25 back in time as of '95, not counting events as what they did in
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1 '98 or alliances they had with other groups, but was the
2 Islamic Group from '95 that we are focused on in the trial,
3 their primary effort was to overthrow the government. They
4 didn't recognize secular government. They thought that under
5 Islamic law God's rule should obtain but they were focused on
6 Egypt.
7 They thought that president Mubarak was an unjust
8 ruler and wanted him gone in as bad a way as you can imagine
9 and wanted to replace the government of Egypt with Islamic law.
10 But there are treatises and manifestos from the Islamic Group,
11 and I didn't write any of them so I don't want to take a
12 200-page thesis and summarize it in three sentences, but
13 clearly they wanted to overthrow the Egyptian government and
14 they wanted to be ruled by Islamic law.
15 Q. Did they have a position with respect to the incarceration
16 of Sheikh Abdel Rahman in the United States, do you know?
17 A. Absolutely. The Islamic Group made it clear that they
18 wanted any of their members or leaders who were imprisoned
19 anywhere to be freed. They made it crystal clear that the
20 imprisonment of Sheikh Abdel Rahman in the United States was
21 something that they opposed, violently opposed, and wanted to
22 take action to retaliate against the United States for having
23 imprisoned him.
24 Q. Can you give some examples of how they conveyed that
25 message?
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1 A. I recall in May '97 they issued that threat that basically
2 said pretty explicitly we will kill the president, we will kill
3 the warden, we will kill the court and anyone else who played a
4 role in imposing his unjust prison sentence if any harm should
5 befall the sheikh, and that was in response to complaints about
6 his medical condition.
7 There were other threats at other times which is why
8 we took discussions about the medical issues seriously. And
9 they called upon his imprisonment later in 2000 and 2001.
10 There were press statements coming out of Afghanistan involving
11 the sheikh's son who was in a camp over in Afghanistan with
12 others in very, very gory language promising retaliation
13 against the United States, and there was a leaflet in May '98
14 handed out by the sheikh's son in Pakistan that was reported
15 which issued all sorts of very graphic threats about what
16 should happen to the United States because Sheikh Omar was in
17 prison. So it was a constant theme to get Sheikh Omar Abdel
18 Rahman out of prison.
19 Q. Directing your attention to May '97, how did you learn
20 about the threats against the president and the warden at that
21 time by the Islamic Group?
22 A. I believe -- I know I read --
23 MR. TIGAR: Objection. I object to how he learned,
24 your Honor.
25 THE COURT: Overruled.
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46TSSAT4 Fitzgerald - redirect
1 A. I know I read it in the newspaper and I used to read the
2 Daily News when I was in New York, among other papers. Not
3 plugging a particular paper, but I remember reading it in the
4 Daily News and I also --
5 MR. TIGAR: Objection to what he read in the paper,
6 your Honor.
7 THE COURT: The basis for his testimony was developed
8 on cross.
9 Ladies and gentlemen, this testimony is received only
10 to explain the testimony that was given on cross and to clarify
11 what the basis for the witness' testimony was that was given on
12 cross examination. It's not being received independently for
13 the truth of what the witness read in a newspaper.
14 A. Just to finish the answer, I would read papers and I saw it
15 in the Daily News and I think I took that article and cut it
16 out or preserved it, and I also believe I talked to people,
17 other people working for the U.S. government at the same time
18 to see what information there was about the threat, and so I
19 obtained a sort of text of his statement from Reuters overseas
20 that summarized what had been reported to Reuters by the
21 Islamic Group about what had been said and why it was said and
22 I did something with them. I know I put them in the file.
23 Q. Do you recall that the Daily News article contained any
24 information about statements made by Abdel Rahman's lawyers
25 that may have precipitated the threat?
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1 A. The newspaper article did not.
2 Q. Did you ever see anything that indicated that?
3 A. Yes.
4 Q. What was that?
5 MR. TIGAR: Objection, lack of foundation, your Honor.
6 Did he ever see?
7 Q. At that time in May '97, did you see anything that
8 indicated to you that the Islamic Group threat followed a
9 statement issued by Abdel Rahman's attorneys?
10 A. Yes. I saw a report from Reuters that said the Islamic
11 Group issued the threats and it specified more detail on the
12 threats than what appeared in the Daily News, and it also
13 specified that the threats were issued in response to a
14 statement by lawyers for Omar Abdel Rahman indicating that he
15 had been abused or was not being properly treated in prison.
16 MR. MORVILLO: May I approach, your Honor?
17 THE COURT: Yes.
18 Q. Mr. Fitzgerald, I have just handed you what is marked for
19 identification as Government Exhibit 21. Do you recognize that
20 document?
21 A. Bear with me one second.
22 Yes.
23 Q. What is it?
24 A. That is one of those memorandums I described or that is a
25 memorandum describing the renewal process I testified about
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1 earlier. As the SAMs would expire and we would come up with a
2 deadline I would write a memo that would indicate that the
3 conditions still existed, that it was appropriate to impose the
4 SAMs, and so I wrote this memo to Kathleen Hawk in July '97. I
5 drafted it for Attorney General Reno's signature and I wrote
6 this in there, the fact that these conditions still exist, and
7 I described those threats in May '97 and attached both the
8 Daily News article and an unclassified text referring to that
9 Reuters' statement that had more detail in it.
10 MR. MORVILLO: Your Honor, the government would offer
11 Government Exhibit 21.
12 MR. TIGAR: We object, your Honor, and I would ask to
13 be heard.
14 THE COURT: All right.
15 Ladies and gentlemen, we will take ten minutes.
16 Please remember my continuing instructions not to talk about
17 the case and keep an open mind.
18 Before we do that, usually I try to arrange your time,
19 ladies and gentlemen, in a way that is most efficient and I
20 realize that at some point we are going to take a luncheon
21 break.
22 MR. MORVILLO: If it's appropriate I can move on to
23 another area.
24 THE COURT: Would you?
25 We will take a break later, ladies and gentlemen.
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46TSSAT4 Fitzgerald - redirect
1 Q. Mr. Fitzgerald, I believe you testified that in May '98
2 there was another statement that came to your attention by
3 Sheikh Abdel Rahman?
4 A. Yes.
5 Q. Do you recall how you learned about that?
6 A. I think I probably learned about it from the press but it
7 would have been overseas press at the time. I was reading or
8 at the time had a practice of not just reading local newspapers
9 because I wanted to know what was going on in New York, but I
10 was also reading general publications about things involving
11 terrorism overseas from published sources. The Federal
12 Broadcast Information Service, FBIS, prints out newspaper
13 articles every day about things of interest and I would have
14 someone check to see if there is anything of interest about the
15 Islamic Group and about the other group I was working on at the
16 time, and I think I read it through that means.
17 Q. Upon reading that information, did you take any action with
18 respect to the Special Administrative Measures in connection
19 with that information?
20 A. I believe I again printed out what I had seen about the
21 statement that had been issued overseas and again sent that on
22 down to the people in Washington concerning the renewal of the
23 Special Administrative Measures along with other information.
24 I always try to update the facts every time the SAM renewals
25 came up just to let people know if the concern was fresh or if
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1 anything had changed.
2 MR. MORVILLO: May I approach, your Honor?
3 THE COURT: Yes.
4 Q. Mr. Fitzgerald, I have handed you what has been marked for
5 identification as Government Exhibit 3516T. Do you recognize
6 that document?
7 A. Yes.
8 Q. What is it?
9 A. It starts with a fax cover sheet that I sent in July of '98
10 to a person who worked at that Office of Enforcement Operations
11 I mentioned, the contact person in Washington, and then it
12 shows on the third and fourth pages of the exhibit three items
13 that I put in a short memo, informal memo, one of which said or
14 described that statement issued in May '98, and I put down the
15 translation of what that statement said and then I indicated
16 two other facts that I thought were relevant to the security
17 situation that I wanted them to be aware of.
18 MR. MORVILLO: Your Honor, the government would offer
19 Government Exhibit 3516T at this time.
20 MR. TIGAR: Same objection, your Honor.
21 THE COURT: All right.
22 MR. MORVILLO: I can move on to something else, your
23 Honor.
24 THE COURT: All right.
25 Q. Mr. Fitzgerald, coming back to the '95 criminal trial of
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1 Sheikh Abdel Rahman, you testified on direct I believe that
2 when the case started there were 15 defendants, when the trial
3 started there were 11 defendants, and when the trial ended
4 there were 9 defendants.
5 A. Yes.
6 Q. Can you explain what happened to those other defendants?
7 A. Of the 15 defendants I think 4 of them reached agreements
8 with the government so that they didn't go to trial prior to
9 trial. Several of them pled guilty. I think one trial might
10 have been separated for legal reasons, so that person's trial
11 would be postponed.
12 So by the time the trial started we had 11 defendants
13 and then after trial started one of them pled guilty and agreed
14 to testify or be available to testify and we had ten
15 defendants. And then later on in the trial we reached a plea
16 agreement with one of the other defendants who pled guilty to
17 one of the charges and we dropped other charges and then we
18 were left with 9 defendants when the jury went out to a
19 verdict.
20 Q. You testified on cross by Mr. Tigar that during the trial
21 the Oklahoma City bombing occurred?
22 A. Yes.
23 Q. And you further testified that your first reaction was to
24 think that perhaps it was Sheikh Abdel Rahman or his followers
25 that were responsible for that?
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46TSSAT4 Fitzgerald - redirect
1 A. Correct.
2 Q. Why did you have that initial reaction?
3 A. Only because of generally we had heard about the group and
4 what I had been briefed on about the threat situation and there
5 had been threats we were concerned about and while we were in
6 one federal building another federal building blew up and so I
7 thought about that. I didn't take any an action on it. I knew
8 that was something we should obviously look at and be concerned
9 about but as the process played out it turned out it was
10 someone completely unrelated and the reason I brought that up
11 last week was just to caution people that you can have the
12 right answer pretty quickly but you can have the dead wrong
13 answer pretty quickly and that our job in the government was to
14 make sure that whatever we think that we check our facts before
15 we act.
16 Q. Did the trial that you were dealing with, in other words,
17 Sheikh Abdel Rahman's trial, involve any threats to federal
18 buildings?
19 A. Yes.
20 Q. Is that part of the reason why --
21 MR. TIGAR: I object to what the basis of that trial
22 was but it has been answered and I withdraw the objection.
23 Q. Is that part of the reason why you were concerned that when
24 another federal building was bombed that it might have been
25 related?
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1 A. Yes, and there was other information I won't get into about
2 security concerns during the trial that had us very, very
3 concerned so that when that attack happened that had to be a
4 thought I had of him come to my mind and then it had to be
5 investigated and pretty quickly they came to a different
6 conclusion. It has happened in other cases as well.
7 Q. Did you personally take any steps to investigate whether
8 Sheikh Abdel Rahman was involved involved with the Oklahoma
9 City bombing?
10 A. No, I was on trial. If something came up, I think the one
11 thing I did was -- the only thing I did during a break in the
12 trial is I went and we had a whole host of phone records of
13 people tied to other acts of terrorism and I wanted to see a
14 whole bunch of address books. I wanted to see if there were
15 any contacts in Oklahoma just to see if there was a tidbit of
16 information that I passed on, but I didn't take any action with
17 regards to gathering records or doing else. I went back to
18 trial and let other people worry about that. I just made sure
19 before I went home at night that if there was anything that
20 tied anyone to Oklahoma that we had linked to terrorism that I
21 made sure whatever pieces of information we passed on, but I
22 didn't do anything. I didn't arrest anyone. I didn't do
23 search warrants. I didn't issue subpoenas. My job was to
24 continue on with the trial and I did.
25 Q. Did you ever seek to charge Sheikh Abdel Rahman with the
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1 Oklahoma City bombing?
2 A. No, not even close.
3 Q. You testified that Sheikh Abdel Rahman was convicted on
4 October 1st, '95?
5 A. Yes.
6 Q. Do you know whether he issued any statements following his
7 conviction?
8 A. I recall being at his sentence in January 17, '96, and I
9 don't recall the precise words of what he said but I recall
10 experiencing a chill. And then I recall afterward a statement
11 being released prior to the SAMs where the judge talked -- I am
12 sorry, where Sheikh Abdel Rahman talked about lots of people.
13 He labeled that witness Emad Salem an apostate.
14 Q. What does that mean?
15 A. Apostate -- and I will spell it, A-P-O-S-T-A-T-E -- I
16 equate it to being a heretic but when you call someone an
17 apostate if you are in Sheikh Abdel Rahman's position that is
18 an indication to someone that you can kill him, and he labeled
19 the trial judge a fanatic, and so he had labeled people in ways
20 that I thought were not good for security reasons. That
21 happened after the sentencing and I believe it was a statement
22 he made and was released. I don't know if he was interviewed
23 in jail or interviewed by phone or whether he gave a statement
24 but it concerned me, but that was before the SAMs were in
25 place. And then there were other statements over the years I
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1 think we referred to but those are the ones most closely tied
2 to his sentencing.
3 MR. MORVILLO: Your Honor, I am not sure what time you
4 wanted to break for lunch. I was going to move on to another
5 area, if you wanted to have a discussion before that.
6 THE COURT: Why don't you move on to another area.
7 MR. MORVILLO: Okay.
8 Q. Mr. Fitzgerald, you testified on cross examination that you
9 were concerned about Sheikh Abdel Rahman's medical condition,
10 is that correct?
11 A. Yes.
12 Q. When did you begin to become concerned about Sheikh Abdel
13 Rahman's medical condition?
14 A. I was concerned generally that if something bad happened to
15 Sheikh Omar given that people were threatening to kill people
16 in response to his imprisonment, that if he died we would be
17 blamed. But I particularly became concerned after the explicit
18 threat in May '97 that said that we have heard that the Sheikh
19 is not getting proper medical treatment and if he dies we will
20 kill the president, the warden and the reference to court and
21 anyone involved in the process. I think from the president
22 down to the warden, anyone involved in the process.
23 That had my antenna up that we have to be very careful
24 about what people believe about his medical condition but we
25 were always concerned and we had a notification list prepared
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1 so that if something happened with his health and he were to
2 die we could contact people right away throughout the
3 government and make sure we didn't miss something so people
4 could be put on alert.
5 Q. Were you concerned during his trial and prior to his trial
6 about his health?
7 A. Yes. He had health issues but I was, frankly, just as
8 concerned about his manipulating his health conditions or
9 misleading people as to what they were because he had some
10 health conditions that were real but there are other times that
11 he was, to my understanding, manipulating his health
12 conditions, so I was as much concerned that we not only keep
13 him healthy but that we let the world know that we were giving
14 him good medical treatment and that we have the truth out about
15 what was happening and what was not happening.
16 Q. What was your understanding as to how he was manipulating
17 his health situation, his health care?
18 A. He was diabetic and my understanding is when you are
19 diabetic you have to sort of manage your sugar intake and I
20 understood that he was demanding things from the Bureau of
21 Prisons, like he wanted Tetley tea bags or Lipton tea bags.
22 One of them he wanted and thought was better than the other and
23 threatened if he didn't didn't get the particular type of tea
24 bag he wanted that he would stop taking his insulin or he would
25 start eating M&Ms or that he was going to play with his medical
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1 condition because he knew we, as the government, were afraid if
2 something bad happened to him there could be retaliation. And
3 later on after his conviction we understood that there was some
4 incident where he claimed to have been hurt in a scuffle and we
5 came to learn that he was taking his leg and banging it on the
6 edge of a bed to make his condition worse.
7 Q. You say his head or his leg?
8 A. His leg, I am sorry.
9 MR. TIGAR: I object to the narrative, your Honor.
10 THE COURT: Sustained. The question was answered
11 there.
12 Sustained to any further answer.
13 Q. You testified on cross examination, Mr. Fitzgerald, I
14 believe, that Sheikh Abdel Rahman was sent to Springfield,
15 Missouri following his conviction?
16 A. I believe so. I know he went to Springfield at some point
17 and I think that was the first place he went. I don't know if
18 he transited through a different facility. I believe he went
19 straight to Springfield.
20 Q. And why is it your understanding that he was designated to
21 Springfield, Missouri?
22 A. To get medical attention. The Bureau of Prisons decides
23 where people go. I think they were ready for when the verdict
24 came in that if he were to be convicted they wanted to know
25 where he went and they wanted to do it swiftly and securely and
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1 Springfield had certain medical facilities so that was the
2 first place he went and later on I think for some reason they
3 thought he could get different or better medical attention at
4 Rochester and that is where he went.
5 Q. Incidentally, getting back to the Islamic Group for a
6 second, how did the Islamic Group attempt to attain their
7 goals?
8 A. Through violence. Sheikh Omar made clear that you fight
9 the enemy, you kill the enemy. That is how you succeed.
10 Q. Did they also issue threats?
11 A. Yes.
12 MR. TIGAR: Objection.
13 THE COURT: Sustained, stricken.
14 Q. Were there other ways that the Islamic Group communicated
15 their goals?
16 MR. TIGAR: Objection, your Honor.
17 THE COURT: Basis?
18 MR. TIGAR: There is no foundation. Are there other
19 ways? Lack of personal knowledge and relevance.
20 THE COURT: All right. Sustained.
21 MR. MORVILLO: Your Honor, I believe the witness
22 testified on cross examination about the goals of the group so
23 I believe the door is open.
24 THE COURT: Yes, let's move on.
25 Q. Mr. Fitzgerald, you were asked on cross examination whether
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1 you were familiar with a statement issued by Sheikh Abdel
2 Rahman in '97, in August '97, in which he allegedly endorsed
3 the Islamic Group cease-fire?
4 A. Yes.
5 Q. Do you recall the precise language that he used?
6 A. No, I didn't remember the date or the precise language. I
7 did remember there was some statement supporting the idea of a
8 cease-fire sometime in '97 but I don't recall the words.
9 MR. MORVILLO: May I approach, your Honor?
10 THE COURT: Yes.
11 Q. Withdrawn.
12 Is there anything that would refresh your recollection
13 as to that?
14 A. If there is a copy of the statement that would refresh my
15 recollection. I haven't seen that statement in years.
16 MR. MORVILLO: May I approach, your Honor?
17 THE COURT: Yes.
18 Q. Mr. Fitzgerald, I have handed you what has been marked for
19 identification as Government Exhibit 22. I ask you to take a
20 look at that document and read it to yourself and let me know
21 whether it refreshes your recollection.
22 A. It does somewhat. This event sticks less in my mind than
23 other events but I told Mr. Stern earlier I wasn't sure who had
24 issued the statement or the date, but this is consistent with
25 what I generally recall so it helps me remember, but I don't
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1 have as good a memory of this event as other events.
2 Q. Can you please tell us what your recollection is about this
3 event?
4 A. Well, that it came through -- it says it came through
5 Ramsey Clark, the statement, this is from Reuters, and --
6 MR. TIGAR: Excuse me, your Honor, this is only for
7 refreshment and I object to anything other than his
8 recollection.
9 THE COURT: Okay.
10 Mr. Fitzgerald, put the document down and tell us
11 what, if anything, you recall, not just reading the document.
12 And this is a convenient time to explain something to
13 the jury.
14 I told you before, ladies and gentlemen, that exhibits
15 can only be shown to the jury, read to the jury after they are
16 in evidence. Documents can be shown to a witness and asked if
17 the document refreshes the witness' recollection without having
18 the document received in evidence. But the witness then
19 testifies of the witness' own memory so that you can assess the
20 witness' testimony. The witness just doesn't read the document
21 because the document is not in evidence. So if a document is
22 shown to a witness to refresh the witness' recollection, that
23 doesn't put the document in evidence and the witness testifies
24 then having reviewed the document as to the witness' own
25 recollection of an event.
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1 All right, Mr. Fitzgerald.
2 A. I have to say in all honesty 7 years later reading this I
3 don't doubt that this is accurate but I didn't pay as much
4 attention to the start of the cease-fire as the end and reading
5 that doesn't refresh all the light bulbs. I just remember that
6 he had supported the cease-fire somehow but I don't remember a
7 lot more than that. I mean, if there is a quote in there, I
8 don't remember the quote, and reading this 7 years later I
9 can't tell you I now remember the quote from 7 years before.
10 Q. Why didn't you pay much attention to the start of the
11 cease-fire?
12 A. The start of the cease-fire should have meant the end of
13 violence. I pay much more attention to something that is going
14 to start violence rather than end it.
15 Q. Directing your attention to the meeting with the BOP that
16 you testified about on cross examination that occurred
17 approximately when, do you recall?
18 A. Late November, early December '97.
19 MR. MORVILLO: May I have a moment, your Honor?
20 THE COURT: Yes.
21 (Continued on next page)
22
23
24
25
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1 Q. Mr. Fitzgerald, do you have what's marked for
2 identification --
3 MR. TIGAR: I'm sorry.
4 MR. MORVILLO: May I approach, your Honor?
5 THE COURT: Yes.
6 Q. Mr. Fitzgerald, I've handed you what's been marked for
7 identification as Defense Exhibit LS-13?
8 A. Yes.
9 Q. Do you recognize that document?
10 A. I do.
11 Q. Can you please read the first page and let me know whether
12 that refreshes your recollection as to when that meeting
13 occurred?
14 A. It shows a fax on November 25, 1997.
15 THE COURT: Sustained.
16 Q. Mr. Fitzgerald, if you could read the entire document to
17 yourself, at least the entire first page, and let me know if
18 that refreshes your recollection as to when that meeting was
19 supposed to occur.
20 A. The fair answer is, there is a date listed for when the
21 meeting was scheduled. I don't remember the meeting. After
22 reading, I don't remember the date of the meeting. It was
23 consistent with the time frame, but I am not going to tell you
24 that looking at that date the meeting was that date. I don't
25 remember if I went. I remember the discussion. So the time
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1 frame I can recall and I know what date it had to be after, but
2 I can't give you a single day when the meeting was supposed to
3 happen from memory as opposed to the document.
4 Q. On cross-examination you were asked whether that
5 document -- I'm sorry. Withdrawn.
6 On cross-examination you were asked whether that
7 meeting was to address the prison conditions lawsuit filed by
8 Mr. Clark, is that correct?
9 A. Correct.
10 Q. And I believe you testified that that was a small part of
11 the meeting?
12 A. Correct.
13 Q. Can you please explain what the purpose of that meeting was
14 and how that prison conditions lawsuit fit in?
15 A. The purpose of the meeting was to address the security
16 issues arising from the fact that perceived misinformation was
17 out there. But even a risk -- for getting the misinformation,
18 there was a risk that Sheikh Omar Abdul Rahman might die and
19 what to do to make sure that we did everything we could both to
20 give him both appropriate medical treatment and to establish to
21 the world that we were doing that, so we could manage that risk
22 situation.
23 In the meeting it was discussed that there were media
24 reports about his health. There was discussion of what his
25 health actually was. And I believe there is reference to the
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1 threats. So the meeting was to decide how do we deal with this
2 issue. And I believe as part of that it was also referenced
3 that there is this lawsuit out there, but we were not getting
4 together to discuss how to manage the lawsuit or what the legal
5 issues were. We were getting together to manage the national
6 security situation as to how do we make sure that we keep him
7 healthy and to the extent that we can't prevent him from being
8 ill or that he makes it worse himself, that we can show to
9 people that we did the right thing, so to lessen the risk of
10 retaliation.
11 Q. Incidentally, Mr. Fitzgerald, do you know when the Luxor
12 incident occurred?
13 A. I think the Luxor incident happened earlier that month so
14 that this meeting would have followed that incident. I think
15 the request for the meeting may have predated Luxor, but with
16 the Luxor attack happening, that brought the security issues to
17 an even higher level.
18 Q. Why was that?
19 A. Because the Luxor attack had apparently been carried out by
20 the Islamic Group and demanded that the imprisoned Sheikh Abdel
21 Rahman be freed; and when people were killed that brutally, to
22 free the Blind Sheikh. We have a concern that people think the
23 Blind Sheikh is being abused in prison, you worry about people
24 getting killed as a result. And so we got together, probably
25 me by telephone, to talk about how we managed the situation.
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1 Q. Did you make any recommendations?
2 A. Yes. I remember them from a Post-it note, a little yellow
3 sticky I put at the bottom of the sheet of this document which
4 also tends to indicate to me that I probably didn't go to the
5 meeting because if I went to the meeting I probably would have
6 written on something else. But sometimes if I'm part of a
7 phone conversation and I want notes to tell myself to say
8 something or to follow up on something, I'll grab a Post-it
9 note, stick it on the document and write notes to myself, and I
10 show that I made recommendations there or expressed thoughts.
11 Q. What were your recommendations?
12 A. My concern was that some of this information was apparently
13 coming out through attorney calls.
14 MR. TIGAR: Objection, your Honor. He was asked what
15 his recommendations were --
16 THE COURT: Sustained.
17 Q. What were your recommendations, Mr. Fitzgerald?
18 A. I recommended that we monitor the legal calls, including a
19 recommendation that one of the things we could do would be to
20 subpoena the phone records to see how calls were being made.
21 And then if the right basis was shown, going to the Attorney
22 General for permission to listen to any calls that were
23 recorded.
24 I also recommended getting a video out since I believe
25 there was a video of Sheikh Omar Abdel Rahman hurting himself
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1 to make his condition look worse. And I thought if we got the
2 video out to show people that this was sort of a fraud, that
3 that might take the temperature down a bit and lessen the risk
4 of retaliation.
5 Q. At that point in time were the attorney calls or the
6 attorney prison visits monitored by the government?
7 A. I don't believe that the attorney visits were monitored,
8 and my best understanding would be that the attorney calls were
9 not monitored. My understanding is that when you're in a
10 prison the phones are all taped and there is a sign next to the
11 phones that say, these phone calls can be monitored so that the
12 government can listen to any phone call going out of a prison
13 because the sign there basically says you give up your privacy
14 when you use this phone.
15 To the best of my understanding, most people calling
16 their attorneys won't use that phone. They may use a different
17 phone. I think they use a counselor's office so that the phone
18 is not taped, but my best understanding is that sometimes those
19 calls are taped if people use the phone so that there probably
20 were not tapes of the attorney calls. To my understanding at
21 that time, there were certainly not tapes of attorney visits.
22 So what I was recommending I think was much more
23 prospective of saying, maybe we should start taping the calls
24 and letting people know if we see a violation, we will review
25 the tapes. Instead of listening live on the calls, it would be
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1 an in-between way of preserving a record if somebody did
2 something wrong. We could check but at the same time not
3 listening in unless we needed to.
4 Q. Why did you make the recommendations that you made at that
5 meeting with respect to monitoring legal calls?
6 MR. TIGAR: Objection, your Honor.
7 THE COURT: Sustained.
8 MR. MORVILLO: May I approach, your Honor?
9 THE COURT: Yes.
10 MR. MORVILLO: I am going to move on to another area.
11 THE COURT: Then this would be a convenient time for
12 us to break for lunch.
13 Ladies and gentlemen, we will break for about an hour
14 for lunch.
15 Please remember my continuing instructions always.
16 Please don't talk about this case at all. Please always
17 remember to keep an open mind until you have heard all of the
18 evidence, I've instructed you on the law, you've gone to the
19 jury room to begin your deliberations.
20 Have a very good lunch. I look forward to seeing you
21 after lunch.
22 All rise, please, and please go to the jury room.
23 (Jury not present)
24 THE COURT: The witness may step down.
25 Please be seated all.
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1 There were two issues that counsel wanted to be heard
2 on. One was Government Exhibit 21. The other one was
3 Government Exhibit 3516T.
4 MR. TIGAR: Yes, your Honor. The first one is a
5 memorandum dated July 17, 1997. It was provided to us as
6 Jencks material on this witness, but it bears no indication
7 that he is the author. It is excludable under 803(a) and I
8 cannot think of any way in which any of us have opened the door
9 that says that otherwise inadmissible hearsay could not --
10 could be admitted. It is, of course, inflammatory, to say the
11 least. And that's enough. Its asserted nonhearsay purpose
12 would not satisfy the requirements --
13 MR. MORVILLO: Your Honor, the government would
14 withdraw the cover page but would seek to offer the two
15 attachments, the articles, the Daily News article and the
16 Reuters article.
17 MR. TIGAR: They withdraw the cover page doesn't
18 answer. Does your Honor have the document?
19 THE COURT: No.
20 MR. MORVILLO: May I hand it up, your Honor?
21 THE COURT: Yes. Give it to Mr. Fletcher.
22 MR. TIGAR: Now we are left with three pages. The
23 first is a typical New York Daily News headline. And I think
24 that it simply vouches for the witness in a way. It is
25 inadmissible hearsay and they have already asked the question,
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1 they have had their answer. I can't see any basis on which it
2 would be admitted. Same with the second one which also
3 contains classification stamps.
4 THE COURT: Could you also pass up 3516T.
5 MR. TIGAR: 3516T, the witness said that he recalls
6 that this is something he got from the press, your Honor, or he
7 recalls reading something. I don't see a basis to admit. It
8 is hearsay. Its source is not indicated. It has something
9 about something called enforcement Op Tryad. The witness has
10 already been asked why he did things. He said why he did
11 things. This seems to fall within the scope of the Court's
12 prior ruling with respect to people expatiating on the reasons
13 that they did things.
14 The 3516T document also has more about Bin Laden, the
15 very event that's already been subject to a limiting
16 instruction.
17 THE COURT: Mr. Morvillo.
18 MR. MORVILLO: Your Honor, with respect to Government
19 Exhibit 21, the two news articles, the government is not
20 offering those to show the truth of the matter asserted in any
21 of them. It is simply showing -- offering them to demonstrate
22 the effect that those documents had on Mr. Fitzgerald. And so,
23 therefore, the government submits that they are not hearsay or
24 they are not being offered for an improper purpose.
25 THE COURT: Well, that's it?
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1 I'll sustain the objection. It is redirect. It is
2 following up on what was opened on cross with respect to the
3 meeting and the subject of the meeting and it puts in
4 perspective the witness's testimony on cross for the witness to
5 testify what all of the subjects were at the meeting and why he
6 made recommendations at the meeting. All of that is responsive
7 to what was opened up on cross.
8 To go further and to seek to introduce the newspaper
9 articles are conceded not to be offered for the truth, but only
10 for the effect on the witness as to what the witness did. They
11 should be excluded under 403 at the very least because the
12 witness has testified to what he did and why he did it. And we
13 are very far down the line in terms of responsiveness to what
14 was opened up on cross. So I'll sustain the objections to
15 Government Exhibits 21 and Government Exhibit 3516T.
16 At this point, of course. I can't foresee everything
17 that will come up, but at this point, based upon the reason
18 that these exhibits were proffered, I sustain the objection.
19 Let me return Government Exhibits 21 and 3516T.
20 By the way, I sustained an objection with respect to a
21 question with respect to the means of the Islamic Group both
22 because I thought it was leading -- but even putting aside the
23 issue of form, redirect, again, had gone to the point of fairly
24 following up and there was no objection up until that point
25 with respect to other goals of the Islamic Group; cross having
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46TMSAT5
1 opened up the goal of the Islamic Group with respect to the
2 change in the government of Egypt and Islamic law. But that
3 was followed up sufficiently so that when there is a leading
4 question not as to goals of the Islamic Group but as to means,
5 which was not specifically opened up on cross, I sustained that
6 objection.
7 See you after lunch.
8 MS. BAKER: Your Honor, one small technological matter
9 and housekeeping question. The technological matter, we saw a
10 little while ago, when Mr. Tigar went to display an exhibit to
11 the jury after the projection system had not been in use for a
12 while, it takes a minute for the projector to warm up, so I
13 wanted to say that so that everyone would understand that
14 that's why the image doesn't appear instantaneously. I don't
15 know if your Honor might wish to tell that to the jury, but at
16 least I wanted counsel to understand that.
17 THE COURT: It would appear on their own screens
18 promptly.
19 MS. BAKER: It should indeed appear on screens in the
20 jury box. As far as the big screen across the courtroom, the
21 projector has to warm up.
22 The housekeeping question for your Honor is, it is my
23 understanding that we had provided your Honor with a looseleaf
24 binder that contains the 3500 material that we have to date
25 provided to defense counsel. I don't know whether that has
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1 actually reached your Honor or if your Honor has some other
2 request as to how we should handle that.
3 THE COURT: I got an initial binder of 3500 material,
4 and I don't have another request at the moment. If I do, I'll
5 let you know. The 3500 material doesn't include what would be
6 more significant to me, which are the proposed exhibits to be
7 received in evidence. I don't have a binder of proposed
8 exhibits.
9 MS. BAKER: I'm aware of that, your Honor. I just
10 learned that in the last day or so, and we are working on
11 correcting that.
12 THE COURT: But, on the other hand, I'm obviously able
13 to follow along, as is the jury. And if there are any issues
14 with respect to the documents, they get brought to my
15 attention. But I should have a binder of exhibits and also at
16 some point the government should provide a running exhibit list
17 with respect to the exhibits in evidence.
18 MS. BAKER: Your Honor, we had provided a partial list
19 at one point.
20 THE COURT: There was a quick list.
21 MS. BAKER: Correct.
22 THE COURT: But that was just a listing of the
23 exhibits without the notation of exhibits in evidence. That's
24 usually updated at some point.
25 MS. BAKER: Is it your Honor's request that we update
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1 the list to show when exhibits are admitted?
2 THE COURT: You don't have to do it immediately. I
3 keep my own notes. I'm just saying there usually comes a time
4 where you do that. Obviously, the exhibit list here is much
5 shorter than we will eventually be dealing with.
6 Anything else? See you after lunch.
7 (Luncheon recess)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 AFTERNOON SESSION
2 2 p.m.
3 (In open court; jury not present)
4 (Side bar conference)
5 THE COURT: I said that I would talk to Juror Number
6 217 at the lunch hour and so I was going to do that now just to
7 check on the juror's health and see if there are any issues
8 with her employer.
9 Mr. Fletcher also tells me that Juror 39 in seat
10 number 9 tells Mr. Fletcher that she may not be able to change
11 the trip and I have explained to Mr. Fletcher that that --
12 MR. PAUL: Is not the answer I am looking for.
13 THE COURT: It's not quite an answer.
14 MR. MORVILLO: Non-responsive.
15 THE COURT: I think I have to talk to her again. So,
16 as I say, I don't talk to jurors without counsel and your
17 clients would be welcome to be there. And up until now you
18 have designated one defense counsel and one government lawyer
19 and I am perfectly happy to do that also if you wish to do
20 that.
21 MR. FALLICK: We should continue with that.
22 MR. PAUL: I think it's less intimidating for the
23 jurors so we will do it that way.
24 THE COURT: You are doing it, Mr. Paul?
25 MR. PAUL: I am.
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1 THE COURT: Okay.
2 (Robing room conference)
3 THE COURT: Let's bring in Juror Number 217.
4 (Juror present)
5 BY THE COURT:
6 Q. Hi. Please have a seat.
7 When I talk to jurors I always have some of the
8 lawyers present so that we don't worry about them.
9 I was concerned because you weren't feeling well
10 yesterday and obviously my first wish is that you are all
11 right. Before I start talking to you about that, I should
12 always tell you, as I do any other jurors, please don't tell me
13 anything about the case or what you think about it or anything
14 like that. Don't tell any other juror what you have felt that
15 you should talk to me about or what I ask you about.
16 First, I hope you are okay and that you are feeling
17 all right. You seem fine.
18 A. I am feeling better.
19 Q. Okay.
20 I know that you weren't feeling well yesterday. Are
21 you okay?
22 A. I am feeling better. I am going to go to the doctor
23 tonight. I had surgery last October and I am getting a lot of
24 pressure at work so I am having to go to work every morning
25 before I come to court, so I am generally in the office about 6
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1 and I am staying until a quarter of 8 and then I am going back
2 after court and I am there until 9 or 10 every night and I am
3 working all weekend.
4 I am working 12, 14 hours a day on the weekend. So I
5 think what is happening right now is stress. I talked to my
6 surgeon yesterday and he didn't feel as though there was
7 anything medically wrong. He felt the same way, that it was
8 stress, but he said go speak to your regular doctor today, and
9 that is what I am going to do. I am not at all -- they are not
10 at all happy with me at work. They are very angry with me and
11 they are putting a lot of pressure on me even more so than they
12 normally would because the man who owns my company is trying to
13 make his point. They wanted me to go to the doctor to get a
14 note to get off jury duty and they wanted me to say this and I
15 said I can't lie. It's not my nature, and I have taken an oath
16 to say I am not going to, so I am not going to lie.
17 I sent them an e-mail and I said I will align
18 everything and I said it's an honorable thing to be doing what
19 I am doing and it's a chance for me to be able to do something
20 good either way. If somebody has unjustly been accused we can
21 take care of it and if they have not been we can take care of
22 that as well. So I said I want to sit on this jury and it's
23 what I need to do.
24 He is not an American. He is from China. He has
25 virtually no regard for the American system. He doesn't fully
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1 understand it and if he does it doesn't matter with him.
2 Making money is everything to him and that is it. So I have
3 explained my position to them and that is it. So I have to do
4 what I have to do and hopefully after a few weeks and things
5 are falling into place and things are being covered and my
6 responsibilities are being fulfilled, I am hoping they will
7 just back off and things won't be as heated. But that is where
8 it stands.
9 Q. I appreciate your laying all that out for me.
10 The employer of course can't take any adverse actions
11 against you because of your jury service. That is clear. That
12 is the law as I explain to jurors.
13 Over and above that, if it would be useful for you we,
14 as I repeatedly tell the jurors, maintain the confidentiality
15 and anonimity of the jurors so I don't know your name, address
16 or anything like that. Nevertheless, I could write a letter
17 and Mr. Grate could be sure that the letter gets to the
18 employer without naming your name or the case. Mr. Grate could
19 see that it gets to the employer because jury service, you are
20 absolutely right, is very important and you should be not only,
21 as you are, committed to your duty but relaxed about it.
22 A. Right.
23 Q. And we as a court, as an institution, would be happy to do
24 anything to ease your relations with your employer and to
25 heighten your employer's awareness of your employer's
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1 responsibilities. And I have offered to do that for other
2 jurors and -- not in this case but in other cases -- I would do
3 that for you. Jurors have different reactions about that,
4 whether they want a letter from the judge or the jury
5 administrator. And so I defer to you about that. If you think
6 a letter from me would be helpful explaining the importance of
7 jury service on stationery from the court, I would be happy to
8 do that because you are entitled to that.
9 A. I would be appreciative of that. I think that would help.
10 I tried to explain to him that I said it's not anything that I
11 didn't do anything. I didn't write a letter saying please pick
12 me on this jury, please give me jury duty. I didn't do that.
13 It's what happened and I said I think it's my duty to do this
14 and I think that it's the duty of my company to support me in
15 that. That is why I can get up in the morning and do whatever
16 I need to do every day.
17 Q. Right. And the employer should not put you under any extra
18 burdens for your work and should make the necessary
19 arrangements and, as I say, I am happy to write a letter.
20 A. Is there anything that says about my salary and them having
21 to pay me or not?
22 Q. No, they don't have to. They can't discriminate against
23 you because of your jury service, but they are not required to
24 keep paying your salary. Some firms do, some firms don't.
25 That is really up to the employer.
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1 A. They have been up until this point but I have also been
2 working more than 40 hours a week. But if you can draft a
3 letter I would be appreciative of that.
4 Q. Absolutely. And I will draft it and give it -- I will come
5 up with a way of giving it to you and maintaining your
6 anonimity at the same time through Mr. Grate or so, but it will
7 be clear to your employer.
8 A. I understand there is nothing that can happen now but I
9 just worry about when this trial is over and I go back to work
10 and that is mainly what my concern is.
11 Q. You really shouldn't have any concerns over that at all.
12 A. Okay.
13 Q. I will do a letter and you can review it and if you like
14 that letter or would like another letter, you just let me know
15 because your jury service is obviously important and your
16 physical health and comfort are also important to all of us.
17 So I will do that.
18 A. Okay. Great.
19 Q. Again, don't talk to anybody about the case.
20 A. Okay.
21 (Juror absent)
22 THE COURT: All right.
23 I will draft a letter tonight and I will show it to
24 everyone tomorrow, and let's bring in Juror Number 39.
25 (Juror present)
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1 BY THE COURT:
2 Q. Please have a seat, Juror 39. It's nice to see you again.
3 A. Thank you, same here.
4 Q. Don't tell me anything about your thoughts about the case
5 or anything like that.
6 I wanted to follow up. Mr. Fletcher tells me that you
7 have told him you may not be able to change the date of the
8 trip?
9 A. Right. It would have to be like next year because I don't
10 know how long we are going to be here.
11 Q. Right.
12 A. And this is sort of like the end of the summer, before
13 winter or spring.
14 Q. Right. And this was a trip in September, right?
15 A. Yes.
16 Q. You are right because we don't know exactly how long the
17 case will last. It has been estimated 4 to 6 months, which
18 would take us into November or December or so. So it would be
19 next year. But you could get another group trip, right, next
20 year?
21 A. Next year.
22 Q. Will you do that? Because the reason I ask you to do that
23 is you should be able to be able to do that, to switch the
24 trip.
25 A. They will give me another one.
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1 Q. Yes. And I don't know where the case will be in September.
2 I don't know if that would be a time when everyone else on the
3 jury and all of the participants would want to take time and if
4 we began to give every juror the option of simply taking one
5 week whenever they wanted --
6 A. We would be here until next year.
7 Q. Yes, you are absolutely right. So is it okay? Could you
8 change it?
9 A. Yes. I just wanted to know the time so I wouldn't lose the
10 money.
11 Q. Next year would be good, if you switch it to next year,
12 okay?
13 A. That is fine.
14 Q. Is that okay?
15 A. Yes.
16 Q. Okay.
17 I very much appreciate your doing it, I really do. As
18 always, we appreciate your jury service and as I repeatedly
19 tell the jurors, the system depends upon people who are
20 prepared to serve as jurors and so I very much appreciate your
21 changing your trip. Again, I am pleased that you got the gift.
22 A. It still stands.
23 Q. Okay. Thank you.
24 Again, don't tell the jurors about our discussion and
25 it's good to see you.
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1 A. Okay.
2 (Juror absent)
3 THE COURT: Mr. Fletcher, you are going to tell Juror
4 12, the juror in seat 12, that the juror can wear a hat. I
5 wasn't sure if you were there when I mentioned it.
6 THE CLERK: He may wear a skull cap tomorrow. I
7 believe he decided not to wear one today.
8 THE COURT: Okay.
9 And I will tell all of the jurors that we will make
10 sure -- it's not clear if we are going to sit at all on
11 Thursday, but we will break in time.
12 Mr. Fletcher advises me that the juror explains that
13 the juror needs to leave by 12 on Thursday. With a flight from
14 Newark, I hadn't been intending to sit any longer than 11:30 on
15 Thursday morning if we sat. So it will be 9:30 or 11:30 or not
16 at all.
17 Okay, good enough.
18 (In open court; jury not present)
19 THE COURT: Please be seated all.
20 THE COURT: Is everyone ready for the jury?
21 Bring in the jury please.
22 (In open court; jury present)
23 PATRICK FITZGERALD resumed.
24 THE COURT: Please be seated all.
25 THE COURT: Good afternoon, ladies and gentlemen.
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1 Good to see you all.
2 By the way, from time to time I explain various things
3 about the equipment or technology in the courtroom. This is a
4 good time for me to tell you about two things that I haven't
5 told you about.
6 When documents are shown to you, sometimes called
7 published for you, I told you the different ways in which
8 documents can be shown to you and one of them is the documents
9 appear on the big screen in front of you and the small screens
10 in front of you in the jury box. It takes a while sometimes if
11 the projector has been off for the document to appear on the
12 big screen, so if there is a delay don't be concerned, the
13 document usually appears more quickly on the little screens in
14 front of you.
15 While I am talking about technology, you also see that
16 we have a court reporter who takes down everything that goes on
17 in court and we also have computers that keep track of what the
18 reporter takes down in court. We actually have two systems:
19 One that flashes on computer screens that we can see but that
20 the jury does not have access to that, and there is another
21 more manual system that the court reporter is using, and so
22 physically there is a record of what the reporter takes down or
23 has taken down on tape. And so it's a back-up system.
24 Actually that is the original reporter's notes.
25 As I explained to you initially when I explained that
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1 you had the right to take notes if you wished, but you are
2 under absolutely no obligation to take notes, we are keeping an
3 official transcript and you would have the opportunity in the
4 course of deliberations to review the transcript or portions of
5 the transcript and so you don't have to be concerned about any
6 of that. We take care of all of that. But because you see all
7 of this technology I just wanted to explain to you what all of
8 that is. Okay.
9 Mr. Fitzgerald is on the stand.
10 Mr. Morvillo.
11 MR. MORVILLO: Thank you, your Honor.
12 THE COURT: Mr. Fletcher.
13 THE CLERK: Mr. Fitzgerald, you are reminded you are
14 still under oath.
15 THE WITNESS: Yes, sir.
16 MR. MORVILLO: May I proceed, your Honor?
17 THE COURT: Yes.
18 REDIRECT EXAMINATION (Continued)
19 BY MR. MORVILLO:
20 Q. Mr. Fitzgerald, during cross examination you were asked
21 about the Luxor incident and whether that incident indicated
22 that Abdel Rahman's endorsement of the cease-fire had been
23 essentially overruled.
24 Do you recall that testimony?
25 A. Yes.
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1 Q. That question?
2 A. Yes.
3 Q. In response you answered that there was a part that made
4 you unclear as to whether they overruled Abdel Rahman, do you
5 recall that?
6 A. Yes.
7 Q. What did you mean by that?
8 A. After the Luxor incident there was a statement issued on
9 Omar Abdel Rahman's behalf after the massacre had occurred in
10 which a spokesman quoted him as saying no comment and my
11 understanding of Sheikh Omar Abdel Rahman, he always said in
12 his speeches, a constant theme was a word of truth, never be
13 afraid to speak your mind and condemn what is wrong and support
14 what is right, and I viewed his expressed statement not
15 condemning the attack as being a condoning of the attack.
16 Q. During cross examination, Mr. Fitzgerald, you were asked
17 some questions about your contact with Mr. Yousry.
18 A. Yes.
19 MR. MORVILLO: Your Honor, may I publish to the jury
20 Government Exhibit 9 in evidence?
21 THE COURT: Yes.
22 MR. MORVILLO: If I can have the second page of the
23 SAMs displayed. Thank you.
24 Q. Do you see that on your screen, Mr. Fitzgerald?
25 A. Yes.
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1 Q. The first paragraph, paragraph 4, the top of the page.
2 A. Yes.
3 Q. Do you see the sentence that begins "the federal
4 government?"
5 A. Yes.
6 Q. Can you read that to the jury please?
7 A. "The federal government expects that the attorney, the
8 attorney's staff, and anyone else at the behest of, or acting
9 on the behalf of, the attorney, will fully abide by the SAM
10 outlined in this document; that expectation is set forth in the
11 SAM restrictions document."
12 And then it continues.
13 Q. On whose behalf did you view the interpreters as acting on?
14 A. The attorney for the defendant.
15 Q. And is it fair to say therefore that you have expected the
16 attorney to inform the interpreters about the prohibitions and
17 rules of the SAMs?
18 MR. STERN: Objection to what his expectations are.
19 THE COURT: Sustained.
20 Q. Mr. Fitzgerald, you testified on cross examination about
21 the fact that Sheikh Abdel Rahman was moved from Springfield to
22 Rochester, Minnesota, is that correct?
23 A. Yes.
24 Q. Do you know the reasons why he was moved from Springfield
25 to Rochester?
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1 A. I believe from Springfield to Rochester had to do with his
2 medical condition and they wanted to give him access to doctors
3 or facilities that were available in Rochester as opposed to
4 Springfield. That was my recollection. I wasn't part of that
5 decision.
6 Q. Do you know when that occurred?
7 A. No. I knew it when it happened. I just don't remember
8 when.
9 Q. On cross examination by both Mr. Stern and Mr. Tigar, you
10 were asked questions about the role of an attorney and the
11 ethical rules governing attorneys and you testified on cross
12 with Mr. Stern about how an attorney can't participate in a
13 bank robbery with her client or his client. What did you mean
14 by that?
15 A. I meant that the attorney-client privilege is something
16 that extends to discussing with a client any past crimes they
17 have committed. So a person can't represent their client well
18 in a bank robbery case if they can't ask them did you do did or
19 not because that will affect how they conduct the trial. So we
20 want to have a situation where an attorney can ask someone did
21 you rob the bank and they can say, yes, I did, and then they
22 can decide how to handle the case. Or the person may say I
23 didn't rob the bank and I have no idea who did. So we want to
24 protect that. But you couldn't have someone decide they wanted
25 to rob banks and because they have a law degree they could walk
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1 in and say how do we rob a bank or will you wait outside and
2 drive the getaway car.
3 The fact they have a law degree doesn't allow them do
4 do something that is illegal that no one else can do. So
5 looking at a crime already committed and getting candid or just
6 have a candid discussion with your client as to what they did
7 do or didn't do is something that is essential so they can
8 represent their client, but the law doesn't go so far as to say
9 you can use the attorney-client relationship to facilitate or
10 help happen a future crime.
11 Q. Is that prohibition contained in the ethical rules that you
12 discussed?
13 A. Yes.
14 Q. On cross examination you were asked about attorneys and
15 interpreters and clients whispering to preserve the
16 confidentiality of the communications. Do you recall that?
17 A. Yes.
18 Q. Are there other reasons why people would whisper?
19 MR. STERN: Objection.
20 THE COURT: Overruled.
21 A. People whisper for lots of reasons. They can whisper in
22 the courtroom. If he told me to speak more slowly, which he
23 probably should often, he may do that so that his whispering
24 isn't overheard and interrupt something. People can whisper so
25 they can keep something legitimate confidential and obviously
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1 people can whisper so they can keep something they are doing
2 wrong from being detected. It could be any of those or more.
3 Q. You testified about negotiations that were conducted with
4 various attorneys for Abdel Rahman relating to the affirmation
5 that you sent out to Ms. Stewart in August 2000, do you recall
6 that?
7 A. Yes.
8 (Continued on next page)
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 Q. Did Ms. Stewart ever contact you directly in June of 2000
2 to attempt to negotiate an exception to the attorney
3 affirmation that she had previously signed to allow her to
4 disseminate statements by Sheikh Abdul Rahman withdrawing his
5 support for the cease fire?
6 A. No.
7 MR. MORVILLO: No further questions, your Honor.
8 MR. TIGAR: May I inquire limited to the scope?
9 MR. STERN: I have no questions. Thank you, your
10 Honor.
11 MR. TIGAR: Limited to the scope of the redirect.
12 THE COURT: Yes.
13 RECROSS EXAMINATION
14 BY MR. TIGAR:
15 Q. Mr. Fitzgerald, you told us on redirect that you had heard
16 that Sheikh Abdel Rahman said no comment about the Luxor
17 incident. Do you remember that?
18 A. Yes.
19 Q. Without asking what you read, I will ask you, did you ever
20 read a statement attributed to Sheikh Omar Abdul Rahman in the
21 December 20, 1997 issue of the newspaper Al-Hayat?
22 A. I don't know. I could have. Al-Hayat is in Arabic. I
23 don't read Arabic. But Al-Hayat was a newspaper that was often
24 translated into English. I was reading English translations of
25 Arabic newspapers periodically. So if there was something in
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1 there attributed to Sheikh Omar Abdul Rahman on December 20, I
2 could have read it. I don't remember doing so.
3 Q. Have you exhausted your recollection, sir?
4 A. Yes, I have.
5 MR. TIGAR: May I approach, your Honor?
6 THE COURT: Yes.
7 Q. I am going to show you that one page, the headline, and ask
8 you, sir, simply, looking at that, does that refresh your
9 recollection with respect to the question I just asked you, yes
10 or no?
11 A. I am just going to read --
12 Q. Please.
13 A. I don't recall reading that.
14 Q. It doesn't refresh your recollection?
15 A. Right.
16 Q. Do you remember some time in 1997 reading a statement
17 attributed to Sheikh Omar Abdul Rahman in the Cairo Times?
18 A. That I don't ever recall reading. I don't know if I have
19 ever read anything in the Cairo Times.
20 Q. And did you in or about late 1997 read any statements with
21 respect to the Luxor massacre by the official newspaper of the
22 Islamic Group? Do you remember doing that?
23 A. I am not sure I know the official newspaper of the Islamic
24 Group.
25 Q. So you don't remember one way or another?
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1 A. I don't remember that. If you tell me the name of the
2 newspaper. I don't remember an official newspaper.
3 Q. Would it refresh your recollection if I read in my very
4 best Arabic Al Murabitoun?
5 A. Al Murabitoun?
6 Q. Yes. Do you remember reading anything about the Luxor
7 attack in that publication in 1997?
8 A. No. But I've heard of the publication. I don't read
9 Arabic. So I don't recall reading stuff from Al Murabitoun,
10 but it is possible I could have read an English translation of
11 that because that name of a publication is something I've heard
12 of before.
13 Q. My next question is, do you remember reading anything in
14 English in the Middle East Times about the Islamic Group
15 reaction to the Luxor attack in late 1997?
16 A. In late 1997?
17 Q. Yes.
18 A. I do recall without regard to the Middle East Times that
19 reading that eventually the Islamic Group began to follow the
20 cease fire, but I can't place that to a particular publication.
21 Q. Thank you.
22 Now, you testified on redirect examination about the
23 1997 announcement of Sheikh Abdul Rahman's view about the peace
24 initiative or cease fire, correct?
25 A. Yes.
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1 Q. And you believed in the year 2000 that that announcement,
2 the public release of that announcement, had been a violation
3 of the SAMs, correct?
4 A. Yes.
5 Q. Finally, sir, at any time from 1995 onward, did Ramsey
6 Clark ever come to you and say in words or substance that he
7 thought it would be a good idea to move Sheikh Abdul Rahman out
8 of an American prison to an Egyptian prison in order to solve
9 some of these problems?
10 MR. MORVILLO: Objection.
11 THE COURT: Basis?
12 MR. MORVILLO: It is beyond the scope of redirect,
13 your Honor.
14 THE COURT: Overruled on that basis.
15 MR. MORVILLO: Hearsay, your Honor.
16 THE COURT: Yes, it appears to be.
17 MR. TIGAR: Not offered for the truth, your Honor.
18 Did he make the proposal.
19 THE COURT: Not offered for the truth.
20 Ladies and gentlemen, the question is whether
21 something was said, and what is being asked about is not being
22 asked about for the truth, the underlying truth of what was
23 said, but simply whether a proposal was raised with this
24 witness.
25 A. Understanding your question, I never met with Ramsey Clark
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1 about that, but it came to me, but I remember your question.
2 He at least called me because I have a distinct memory getting
3 a telephone call -- I don't remember the time. I know it was
4 in my office -- where Mr. Clark with me raised the possibility
5 there might be a swap with Sheikh Omar Abdul Rahman, send him
6 over to Egypt and somebody else would be set free, and I had a
7 very distinct recollection of telling him in my view no way, no
8 how, and I remember calling other people in the government to
9 let them know that this had been floated, and I had made clear
10 that I wasn't in support of that. And I may or may not have
11 gotten a letter in that regard, but I do remember a telephone
12 conversation because it had a distinct impression on me.
13 Q. At that time you were an Assistant United States Attorney,
14 correct?
15 A. Yes. I was the Assistant U.S. Attorney and cochief of the
16 terrorism section.
17 Q. But that would not in any case had been your call to make
18 whether such a thing could happen. You would play an advisory
19 role at most, right?
20 A. Yes. Which is why I called all those other people: One,
21 to find out whether this was under active consideration; and,
22 two, to let them know about this.
23 MR. TIGAR: Thank you. Nothing further.
24 MR. MORVILLO: Just one question, your Honor.
25 THE COURT: All right. Limited to recross.
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1 MR. MORVILLO: Of course.
2 REDIRECT EXAMINATION
3 BY MR. MORVILLO:
4 Q. What is Al Murabitoun?
5 A. Al M-u-r-a-b-i-t-o-u-n, close enough. It is phonetic. It
6 is a publication, Arabic. I think I used to know what the word
7 Murabitoun meant. It means like those -- I am not sure if I
8 now know what the word means. I think it is a news magazine or
9 it is a periodical publication in Arabic. I don't know whether
10 it is the official publication of the Islamic Group, but it has
11 contained articles relating to issues in the Middle East
12 before, and I think I've read translations of the publication
13 in English. But I don't think I have ever looked at an actual
14 publication since I can't read Arabic.
15 MR. MORVILLO: Nothing further, your Honor.
16 THE COURT: No further questions.
17 Mr. Fitzgerald, you're excused. You may step down.
18 THE WITNESS: Thank you.
19 (Witness excused)
20 THE COURT: Government.
21 MR. BARKOW: Your Honor, the government calls Ekkehart
22 Hassels-Weiler.
23 EKKEHART HASSELS-WEILER,
24 called as a witness by the Government,
25 having been duly sworn, testified as follows:
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1 THE COURT: Please keep your voice up and talk into
2 the microphone. Thank you.
3 Mr. Barkow, you may examine.
4 MR. BARKOW: Thank you, your Honor.
5 DIRECT EXAMINATION
6 BY MR. BARKOW:
7 Q. Good afternoon. Where are you from?
8 A. I was born in Berlin, Germany.
9 Q. How long did you live there?
10 A. Until approximately 1982.
11 Q. Where do you live now?
12 A. In Los Angeles.
13 Q. What do you do for a living?
14 A. I'm an attorney admitted both in Germany and in New York.
15 Q. What kind of an attorney are you?
16 A. Banking lawyer.
17 Q. And what do you presently do?
18 A. I was a partner in a large international law firm. And in
19 1994, I started heading up a small private trust and investment
20 firm.
21 Q. Mr. Hassels-Weiler, in 1997, where did you live?
22 A. In Los Angeles.
23 Q. And in November of 1997, did you take a trip to Egypt?
24 A. Yes, I did.
25 Q. Where did you go in Egypt?
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1 A. On November 11, I arrived in Cairo. And on November 15, I
2 went from Cairo to Luxor.
3 Q. Who did you go on this trip with?
4 A. Three travel companions: My mother and two friends.
5 Q. And was the plan to be the entirety of your trip, or was it
6 part of a longer trip?
7 A. It was part of a longer trip. We were planning to go from
8 Egypt into different directions, two of us to India and two of
9 us to Turkey.
10 Q. Mr. Hassels-Weiler, I would like to direct your attention
11 to November 17 of 1997. Can you tell us what you did in the
12 morning of that day?
13 A. I left the hotel in Luxor to go on an excursion to the
14 temples on the east river -- on the east bank of the Nile.
15 Q. Where were you staying?
16 A. In a hotel called Winter Palace.
17 Q. Where was that in relation to the Nile?
18 A. It was on the opposite side from the temples if you wanted
19 to visit.
20 Q. And about what time in the morning did you get started that
21 day?
22 A. Approximately 6 a.m.
23 Q. Who did you go touring with?
24 A. With a tour guide and a driver who drove us in a minivan
25 across the Nile to the temples.
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1 Q. When you say us, who is your tour group?
2 A. Consisted of the four individuals I mentioned.
3 Q. Which included you?
4 A. Yes.
5 Q. Four including you?
6 A. Yes.
7 Q. And what was your first stop touring that morning?
8 A. The first stop was at a temple and grave site called the
9 Valley of the Kings.
10 Q. Could you describe just in general terms what the Valley of
11 the Kings is?
12 A. It is a narrow valley with walls approximately 150 yards
13 high from which entries to various grave sites go deep into the
14 rock.
15 Q. What is in general terms in these grave sites? What are
16 they?
17 A. Various archaeological sites, paintings, items that were
18 placed in the graves by the adherence of the pharos.
19 Q. Are these the pharos' grave sites?
20 A. Yes.
21 Q. After you toured the Valley of the Kings, where did you go?
22 A. Initially, we broke for a small -- for a drink and a
23 sandwich near the Valley of the Kings, and from there we drove
24 by tour bus with our minivan to the Hatshepsut temple.
25 Q. What is that, the temple?
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1 A. That is a large temple complex approximately 30 minutes
2 away from the Valley of the Kings. The temple has several
3 levels and is very close to a large rock formation.
4 Q. And do you know about what time you got to the temple?
5 A. I arrived at the temple approximately 9:00 in the morning.
6 Q. Could you describe what the scene after the temple looked
7 like when you first got there and what you saw in relation to
8 the temple?
9 A. After I left the minivan I had to pass a guard post where
10 two soldiers were posted.
11 Q. Can you describe what -- how those soldiers or guards
12 appeared?
13 A. They had blue coveralls and handguns in the belt, in the
14 gun holster.
15 Q. What was the physical layout of this area?
16 A. This particular guard post was at the beginning to a large
17 plaza, gravel yard, if you will, approximately 3 to 400 yards
18 long that led to the temple.
19 Q. Did you eventually get to the entrance of the temple?
20 A. Yes.
21 Q. And when you got to the entrance of the temple, did you see
22 other tourists.
23 A. I saw two distinct groups of tourists, one smaller group
24 consisting mostly of Asian tourists, and a larger group which
25 appeared to be Swiss.
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1 Q. Could you estimate approximately how many tourists were
2 there other than your group of four?
3 A. Between 60 and 70, I think.
4 Q. Mr. Hassels-Weiler, what happened then?
5 A. This particular temple is a lengthy building that is not
6 very deeply set into the rock. I waited to let the tourists in
7 front of me pass so that I could go in the temple chamber and
8 look at the columns and drawings, et cetera.
9 Q. And what happened?
10 A. Right after I arrived at the entrance to the temple, I
11 heard bursts of gun fire behind me and I turned around.
12 Q. What did the sounds sound like to you?
13 A. For a brief moment I thought it sounded like a firework.
14 But it surprised me because it was early in the morning. When
15 I turned around I noticed several armed men approaching the
16 guard post.
17 Q. Could you describe these armed men? First of all, how many
18 of them were there?
19 A. Between seven and ten men.
20 Q. Can you describe what they looked like and what they were
21 doing?
22 A. They had dark -- I think also blue or dark blue overalls,
23 and some of them had hats or caps on. And all were armed.
24 Q. How were they armed?
25 A. They had both pistols and automatic weapons.
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1 Q. And how, if at all, were they moving?
2 A. They moved towards the guard in what seemed to be a
3 formation.
4 Q. What do you mean?
5 A. It seemed that one group of these men approached the guard
6 to the left and the other group the guard to the right near the
7 guard post.
8 Q. Did you see them interact with the guards?
9 A. Right after I turned around, I saw two men raise their
10 weapons and kill the guards with shots in the head.
11 Q. Who shot the guards?
12 A. Two of the assailants.
13 Q. And how far from what they were doing were you when you saw
14 this?
15 A. Approximately 200 yards.
16 Q. How far were the men who shot the guards from the guards?
17 A. Approximately one to two yards.
18 Q. Were you able to see whether either of the guards had
19 pulled their weapons when they were shot?
20 A. I did not observe that. I saw the guards fall to the
21 ground immediately.
22 Q. After you saw this, what did you do?
23 A. We had to make a choice. We perceived great danger -- that
24 we were in great danger. I felt it was necessary to set
25 ourselves apart from the large group of tourists.
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1 Q. Why?
2 A. I felt I had a higher chance of survival for my travelling
3 companions and for me.
4 Q. So what did you do?
5 A. Instead of huddling in a group with all the other tourists
6 at the entrance of the temple, I stepped back and to the side
7 and walked a short distance to a side chamber of the temple.
8 Q. And what, if anything, did you see occur on your way to
9 this side chamber?
10 A. I tried to shepherd the people I was with ahead of me into
11 the side chamber of the temple. Because I heard ongoing gun
12 shots approaching us from behind, I looked back several times.
13 I saw an Asian woman follow me approximately two to three yards
14 behind me, and I saw that she was hit by a gun shot into her
15 head, and she fell down.
16 Q. Did you see who shot her?
17 A. I did not see who fired this particular shot, but I saw her
18 falling down, and she was dead immediately, it appeared.
19 Q. What did you do after you saw her get shot?
20 A. Again, I tried to hurry up as quickly as I could and tried
21 to find cover in the side chamber of the temple.
22 Q. Did you make it to this side chamber?
23 A. Yes, I did.
24 Q. Could you describe what that side chamber looked like?
25 A. The side chamber is a chamber that has columns at the entry
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1 and several columns inside, and no roof. So as you stepped
2 into the side chamber, you saw the rock formation going up as
3 well as the sky above you.
4 Q. What did you do in this side chamber?
5 A. I noticed a few -- perhaps four to five other tourists
6 already huddling against the wall of the side chamber that
7 abutted the temple. There was no place for us to hide at the
8 same location. So it seemed at that point prudent to hide
9 behind a large column in the middle of the side chamber that
10 was approximately one yard in diameter.
11 Q. Did you do that?
12 A. I did.
13 Q. And who was with you, if anyone, behind that column?
14 A. My three travel companions. The two women were directly
15 against the column and the two men, we tried to shield them as
16 much as we could. And a tour guide that was with us was
17 crouching in the corner opposite of the column at the end of
18 the temple wall.
19 Q. While you were hiding behind this column, what, if
20 anything, did you observe regarding the other people hiding in
21 this chamber?
22 A. It was obvious everyone was extremely upset and, yet,
23 perceived that there was a need to be absolutely as quiet as
24 possible so to not attract attention.
25 Q. So what happened?
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1 A. The tour guide we were with started to talk relatively
2 loudly in Arabic, and I tried to signal to him to be quiet so
3 to not give away our hiding place.
4 Q. What happened then?
5 A. He continued to talk and I stepped out from behind the
6 column and took him into a headlock.
7 Q. Why did you do that?
8 A. I was -- it seemed necessary to me to make sure that he
9 stops talking.
10 Q. So what happened then?
11 A. He did stop to talk and crouched down in his corner, and I
12 went back behind our column.
13 Q. When you were behind the column could you see what was
14 happening outside?
15 A. Yes. As I stepped forward to approach the tour guide and
16 when I came back, I had for a brief moment a chance to look at
17 the plaza, and I saw what I would describe as absolute mayhem.
18 Q. What do you mean?
19 A. It seemed to me that many tourists started to scatter and
20 get away from the temple wall and some gunmen were chasing
21 them.
22 Q. I'm sorry?
23 A. Were chasing them. I'm sorry.
24 Q. And then once you made it back behind the column, from
25 behind the column, could you see from there what was going on?
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1 A. No, I could not. At that point I was hidden from the
2 scene.
3 Q. Could you hear what was going on?
4 A. Yes, you could hear a number of things.
5 Q. What did you hear?
6 A. At first I could hear numerous gunshots, partially from
7 automatic weapons and partially from single gun shots. In
8 addition, I had the impression that the gunshots were
9 approaching our direction in almost a systematic way.
10 While I observed that, I also heard many of the
11 victims screaming and wailing when they were shot and after
12 they were shot, sometimes for several minutes until they died.
13 I also heard other victims pleading for their lives and saying
14 things to each other trying to protect each other and saying
15 what you would count as last words before their death.
16 Q. Mr. Hassels-Weiler, how long did you hear these cries and
17 these gunshots?
18 A. It was approximately 40 minutes until the screaming and
19 wailing stopped.
20 Q. What were you and your companions doing while you were
21 there?
22 A. Well, we didn't do much at all. We were standing there and
23 the two women became weaker because the situation was extremely
24 stressful. So we pushed them gently down the side of the
25 columns so they could sit down. And I hovered over one of them
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1 and a friend of mine hovered over the other one.
2 Q. Was anybody in the back chamber or side chamber talking at
3 this point?
4 A. There was absolutely no noise. It was very clear that the
5 gunshots were approaching our directions, and we were at that
6 moment -- I should talk for myself. I was at that moment
7 convinced that we would be discovered any time. We just looked
8 at each other and tried to assure each other, hoping that
9 nothing would happen to us.
10 Q. Now, eventually the gunshots subsided, is that right?
11 A. The gunshots became less frequent and a much louder
12 explosion occurred that sounded like a motor shell.
13 Q. What happened then?
14 A. A few single gun shots were heard and they seemed to become
15 more and more distant from our particular location.
16 Q. Did you eventually come out from behind your hiding place?
17 A. Not immediately. I felt it was important not to -- it was
18 important to wait for at least 30 to 45 minutes to make sure
19 that we were not being drawn out by the gunshots that had
20 subsided or by the calm and quiet that was then occurring.
21 Q. After the 35 or 30 to 45 minutes, did you come out then?
22 A. Yes, I did come out first and looked.
23 Q. What did you see?
24 A. Stepped out of the side chamber a few steps and then saw
25 the plaza in front of the temple and the immediate surroundings
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1 of the temple entry, where the tourists had waited.
2 Q. Did you see people?
3 A. I saw no one alive. I saw scattered bodies, single bodies.
4 I saw a number of people almost heaped on top of each other,
5 all with visible gunshot wounds, and also it appeared to be
6 knife wounds in the face, ears, and nose.
7 Q. Can you estimate approximately how many people you saw that
8 were dead?
9 A. I did not count them individually because at that moment we
10 were trying to get away from the scene, but there were so many
11 that I would say it was maybe no less than 50.
12 Q. Mr. Hassels-Weiler, what did you do then?
13 A. I started to look around more carefully and noticed at the
14 end of the plaza near the guard post two tourist buses, one of
15 them was burning. The other one seemed intact. And I crossed
16 the plaza with my travel companions towards my bus, stepping
17 around the victims of this attack.
18 Q. Did you get on to that bus?
19 A. Not immediately. There were a few passengers already on
20 that bus, but there were also two or three wounded people that
21 had been carried to the bus by others. And I think I helped
22 the driver of that bus to lift one of the wounded people into
23 the bus. Then I got on the bus.
24 Q. And what happened then?
25 A. There being no more possible passengers, I encouraged the
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1 bus driver to leave the scene and go and get away from that
2 location because it was not clear whether anyone would come
3 back.
4 Q. Did the bus drive away?
5 A. After a short moment the bus started to move towards the
6 river.
7 Q. How long did you ride in the bus?
8 A. Approximately five to ten minutes, and then the travel
9 guide spotted our minivan and asked the bus driver to stop.
10 Q. Why?
11 A. I felt it was safer. I talked to the tour guide and I told
12 him that I found it safer to be in our minivan; again, away
13 from a larger group of people. It was unclear at that time
14 whether this was an individual incident or some kind of
15 uprising. It seemed prudent to be as far away from any large
16 group of people as possible, so we left the bus and boarded the
17 minivan.
18 Q. Where did the van take you?
19 A. It took us further towards the river, in the direction of a
20 bridge where a large group of people had assembled.
21 Q. And what happened there?
22 A. Because the nature of this group of people was unclear to
23 me and to all of us, I felt it was not safe to approach the
24 bridge and suggested to the driver that she go down a pathway
25 to the Nile where several small boats had anchored.
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1 Q. Did you eventually cross the river?
2 A. Yes, I did.
3 Q. How did you do that?
4 A. We spoke to one of the attendants to -- that worked with
5 these boats, and one of them agreed to get us across the Nile
6 towards the hotel. That's what we did and we crossed the Nile
7 and got off at the other side.
8 Q. Mr. Hassels-Weiler, you said previously that you arrived at
9 the temple at about 9:00 in the morning?
10 A. Yes.
11 Q. When did the gunfire start?
12 A. Approximately 9:10. I remember this because I do remember
13 that I looked at my watch when I realized what was going on.
14 Q. Do you know about what time it was when you came out from
15 behind the pillar, your hiding place?
16 A. Yes. It was approximately 10:45.
17 Q. And do you know --
18 A. Shortly before 11.
19 Q. Do you know about when you made it back to the hotel side
20 of the river?
21 A. About 12:15.
22 Q. Mr. Hassels-Weiler, I am going to ask that we place before
23 you Government Exhibit 401 on the screen.
24 MR. BARKOW: May I approach, your Honor?
25 THE COURT: Yes.
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1 It is not being displayed to the jury?
2 MR. BARKOW: At this point the witness, your Honor.
3 THE COURT: And the Court.
4 MR. BARKOW: And the Court.
5 Q. Mr. Hassels-Weiler, I'm showing you what I have marked for
6 identification as Government Exhibits 401, 402, 403, and 404.
7 Could you take a look at those and tell me whether you know
8 what they depict or what they are?
9 A. The picture on my screen depicts the general vicinity of
10 the Hatshepsut Temple.
11 Q. I put the actual pictures in front of you there. Do you
12 see the four pictures?
13 A. I do.
14 Q. Collectively, what do they show?
15 A. The temple complex.
16 Q. Did these photos fairly and accurately depict what the
17 temple grounds and the structures looked like on November 17 of
18 1997?
19 A. These were not pictures I took, so there may be small
20 differences, but, yes, this is the temple where this incident
21 occurred.
22 MR. BARKOW: Your Honor, the government offers
23 Exhibits 401 through 404.
24 MR. TIGAR: We have no objection, your Honor.
25 THE COURT: Government Exhibits 401, 402, 403, 404 in
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1 evidence received.
2 (Government's Exhibits 401-404 received in evidence)
3 MR. BARKOW: Your Honor, may I be asked that they be
4 published to the jury one at a time, and then I will have a few
5 specific questions for each of them.
6 THE COURT: Just identify them before you show them to
7 the jury.
8 MR. BARKOW: Do 401 first. This is Government Exhibit
9 401.
10 Q. What does that depict, Mr. Hassels-Weiler?
11 A. This shows a paved road approaching the plaza in front of
12 the temple with the temple in the background set against the
13 rock formation.
14 MR. BARKOW: Your Honor, may we publish Exhibit 402?
15 THE COURT: Yes.
16 Q. Looking at Exhibit 402, what does this show?
17 A. This shows -- this shows a temple chamber at the lower
18 level of the temple to the right of this picture. It is a
19 two-story formation with a side chamber to the left of the
20 temple wall.
21 Q. The side chamber on the left of this photo, is that the
22 side chamber in which you hid?
23 A. Yes.
24 MR. BARKOW: Your Honor, may we publish Exhibit 403?
25 THE COURT: Yes.
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1 Q. Looking at Exhibit 403, what does this show?
2 A. It shows the main part of the temple in its entirety. It
3 shows that it is a multi-level structure and this incident
4 occurred in the plaza, in the plaza on the bottom level, to the
5 left of the large staircase.
6 MR. BARKOW: May we publish Exhibit 404, your Honor?
7 THE COURT: Yes.
8 Q. Looking at Exhibit 404, what does this show?
9 A. This shows, again, the main structure or the left part of
10 the main structure of the temple. It also shows the side
11 chamber. And it shows a number of small rocks or stones in
12 front of the temple separating the side chamber somewhat from
13 the main complex.
14 MR. BARKOW: If we could please put up Exhibit 403. I
15 just have a few specific questions about these pictures.
16 Q. Mr. Hassels-Weiler, by reference to Exhibit 403, can you
17 explain to us where you saw the two guards get shot?
18 A. I would have to say that this shows a part of the plaza and
19 the guard post was at the beginning of the plaza, so it would
20 not be on this picture. It would, if anything, be at the
21 bottom margin of this photo.
22 MR. BARKOW: If we can put up Government Exhibit 402,
23 please.
24 Q. Mr. Hassels-Weiler, looking at Government Exhibit 402, can
25 you point out to us where you saw the Asian woman when she was
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1 shot?
2 A. Yes. You see the thick temple wall approximately to the
3 left of the middle of the picture, and you see the side chamber
4 to the left of it. There is a small elevation, maybe a foot or
5 so high, and behind that wall is where I walked with the Asian
6 woman approximately two yards behind.
7 MR. BARKOW: May I have just a moment, your Honor?
8 THE COURT: Yes.
9 MR. BARKOW: We have nothing further, your Honor.
10 MR. RUHNKE: We have no questions, your Honor, and we
11 would ask for the limiting instruction that we discussed.
12 THE COURT: Ladies and gentlemen, none of the
13 defendants is alleged to have participated, planned, or had
14 advance knowledge of the Luxor attack, and none of the
15 defendants is charged with such acts.
16 The evidence with respect to the Luxor attack is
17 introduced to help you understand the background and context of
18 the conspiracies charged in the indictment and for whatever
19 relevance you find it has for the other issues in this case.
20 No further questions. The witness is excused. You
21 may step down.
22 (Witness excused)
23 MR. MORVILLO: Your Honor, if we could take a brief
24 break at this point? Our next witness needs to be obtained.
25 THE COURT: Right. We will take a 10-minute break.
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1 Ladies and gentlemen, please remember my continuing
2 instructions. Don't talk about the case at all. Remember
3 always to keep an open mind. Have a good break. I will see
4 you shortly.
5 All rise, please, and follow Mr. Fletcher to the jury
6 room.
7 (Jury not present)
8 THE COURT: See you shortly.
9 (Recess)
10 (Continued on next page)
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1 (In open court; jury not present)
2 THE COURT: Please be seated all.
3 Are we ready to bring in the jury?
4 THE COURT: Okay, bring in the jury.
5 MR. TIGAR: Your Honor, Mr. Fitzgerald when testifying
6 had that wonderful habit of swiveling over and looking at the
7 jury. I wonder if the judge can admonish the witnesses to talk
8 to counsel. I thought that was part of the court's courtroom
9 procedures. If I am wrong about that, then I will back up.
10 THE COURT: In a civil case I ask all of the lawyers
11 and the parties to look at me and not to look at the jury and I
12 don't recall if I really have a rule with respect to the
13 witness looking only at the person examining.
14 In a criminal case I don't have that rule because I
15 think in fairness parties should be entitled to look at the
16 jury. On the other hand, I have prudential advice that I think
17 it's not a very good idea because sometimes it is bothersome to
18 jurors to have people looking at them, so I simply pass that on
19 as prudential advice.
20 And as to a witness, I really don't care if the
21 witness looks at the jury and that would be obviously for all
22 witnesses on all sides.
23 MR. TIGAR: I just wanted to know what the procedure
24 was, your Honor, because I never tried a case in your Honor's
25 court before.
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1 THE COURT: Okay.
2 Anyone else have any strong feeling on that?
3 Okay.
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 THE COURT: The government can call its next witness.
7 MR. DEMBER: Your Honor, the government calls Kara
8 Christenson.
9 THE COURT: Ms. Christenson, could you keep your voice
10 up and talk into the microphone please.
11 KARA CHRISTENSON,
12 called as a witness by the Government,
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
15 BY MR. DEMBER:
16 Q. Ms. Christenson, by whom are you employed?
17 A. I am employed by the Federal Bureau of Prisons, the Federal
18 Medical Prison in Rochester, Minnesota.
19 Q. How long have you been employed by the Bureau of Prisons?
20 A. Since March '92.
21 Q. And what is your current position with the Bureau of
22 Prisons?
23 A. I am a legal instruments examiner.
24 Q. And how long have you held that position?
25 A. Since June of '94.
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1 Q. And did you hold the position with the Bureau of Prisons
2 before that?
3 A. I did.
4 Q. What position was that?
5 A. I was a medical clerk.
6 Q. Would you briefly describe for us your responsibilities,
7 your current responsibilities?
8 A. Generally I assist in responding to lawsuits,
9 administrative tort claims, Freedom of Information Act
10 requests, filed by inmates against staff at the Federal Medical
11 Center.
12 Q. Do you work within the legal department at the Federal
13 Medical Center at Rochester?
14 A. Yes, I do.
15 Q. By the way, that facility is in Minnesota, is that correct?
16 A. Correct.
17 Q. And just briefly could you tell us approximately how many
18 people work with you in the legal department there?
19 A. Currently there are four total staff in the legal
20 department.
21 Q. Now, could you describe for us basically what a Federal
22 Medical Center is?
23 A. It's a medical referral center. We take care of inmates
24 with a variety of illnesses, physical as well as mental health
25 issues.
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46TSSAT8 Christenson - direct
1 Q. Is it also a prison?
2 A. It is a prison.
3 Q. And are you familiar with the fact of whether there are
4 other federal medical centers around the United States?
5 A. There are 6 or 7 others I believe.
6 Q. By the way, are you familiar with the facility in
7 Springfield, Missouri?
8 A. I am.
9 Q. Are you familiar with an inmate by the fame of Omar Abdel
10 Rahman?
11 A. I am.
12 Q. And when did he first come to the Federal Medical Center in
13 Rochester?
14 A. I believe it was January or February of '98.
15 Q. And do you recall, did he come from another Federal Medical
16 Center within the Bureau of Prisons system?
17 A. He did.
18 Q. Do you know what facility that was?
19 A. He came from the United States Medical Center For Federal
20 Prisoners in Springfield, Missouri.
21 Q. By the way, is Mr. Abdel Rahman still at the Federal
22 Medical Center at Rochester?
23 A. No, not in Rochester.
24 Q. When did he leave the Rochester facility?
25 A. It was in April 2002.
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1 Q. And --
2 THE COURT: I am sorry, April 2002?
3 THE WITNESS: 2002.
4 Q. Was Mr. Abdel Rahman transferred to another facility within
5 the Bureau of Prisons at that time?
6 A. He was.
7 MR. DEMBER: Your Honor, may we display to everyone
8 what is now in evidence as Government Exhibit 2050B, as in boy?
9 THE COURT: Yes.
10 Q. Ms. Christenson, let me wait for a moment so it appears on
11 the larger screen in the courtroom.
12 Do you recognize the person depicted in the photograph
13 which is Government Exhibit 2050B?
14 A. I do.
15 Q. Who is that?
16 A. Mr. Abdel Rahman.
17 Q. Now, you can take that off the screen if you like.
18 Ms. Christenson, do you know what Special
19 Administrative Measures are?
20 A. I do.
21 Q. Was Mr. Abdel Rahman under Special Administrative Measures
22 when he first arrived at the facility at Rochester?
23 A. He was.
24 Q. And was Mr. Abdel Rahman under those Special Administrative
25 Measures during the entire time he was at the Rochester
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1 facility?
2 A. He was.
3 Q. Now, was the Federal Medical Center at Rochester provided
4 with copies of the Special Administrative Measures each time
5 they were renewed?
6 A. Yes.
7 Q. How is that done?
8 A. They were received from our central office in Washington,
9 D.C.
10 Q. Did you deal with them when they were received?
11 A. I did.
12 Q. What did you do with them?
13 A. They were received in our office and it was our office that
14 drafted for the warden the notification that was provided to
15 Mr. Abdel Rahman.
16 Q. Did you take those Special Administrative Measures and put
17 them in a different form for the warden to sign off on?
18 A. Correct.
19 Q. Are you familiar with the provisions of the Special
20 Administrative Measures that pertain to Mr. Abdel Rahman?
21 A. Yes.
22 Q. And did some of those measures deal with the mail that
23 Mr. Abdel Rahman could receive or could send out?
24 A. Right, yes.
25 Q. And did you have any dealings with any of that mail
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1 yourself?
2 A. I did.
3 Q. What was your dealings with Mr. Abdel Rahman's mail?
4 A. When an item of mail came into the institution for him, it
5 would be forwarded on to the legal department where that piece
6 of mail would be copied and then forwarded to the FBI for
7 clearance.
8 Q. Is that required by the Special Administrative Measures?
9 A. Yes.
10 Q. Who would forward it to the FBI?
11 A. Me, the legal department.
12 Q. And eventually did some of that mail come back to the
13 facility?
14 A. Right.
15 Q. From the FBI?
16 A. Right, after it was cleared by the FBI, then it would be
17 forwarded along to Mr. Abdel Rahman.
18 Q. Did the SAMs, or Special Administrative Measures, also deal
19 with the type of prison calls that Mr. Abdel Rahman could make
20 from the prison?
21 A. Yes.
22 Q. Were those restricted?
23 A. Yes.
24 Q. In what way? Who could he call?
25 A. He could call his wife, his legal wife, and could call his
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1 attorneys.
2 Q. Was there any procedure in place for Mr. Abdel Rahman to
3 call his legal wife?
4 A. Yes.
5 Q. What was that procedure?
6 A. Once each month a call would be placed to his wife in Cairo
7 and he would have the opportunity to speak with her.
8 Q. And did the officials at the prison have to go through
9 certain procedures in order to do that?
10 A. Right, the phone call was placed by a staff member. Once
11 his wife was received on the line, she would be instructed and
12 informed that the call could not be patched through to anybody
13 else, a third party could not participate; that she could be
14 the only person to speak with him.
15 Q. By the way, where did Mr. Abdel Rahman make those calls
16 from?
17 A. From his cell.
18 Q. And how was his wife informed about the limitations placed
19 on the call?
20 A. She was informed at the beginning of the conversation by a
21 staff member.
22 Q. Was that in English?
23 A. It was in English.
24 Q. And do you know whether she spoke English or not?
25 A. I believe she spoke limited English but there was also a
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1 tape that was at times played in Arabic explaining the
2 limitations.
3 Q. That would be played to her before the call was put
4 through?
5 A. Correct.
6 Q. Now, other than his wife, was Mr. Abdel Rahman allowed to
7 speak with anybody else on the phone?
8 A. His attorneys.
9 Q. And how often do you recall was he allowed to speak to his
10 lawyers?
11 A. Generally it was a couple of times a week.
12 Q. Again, where would Mr. Abdel Rahman speak to his lawyers
13 from?
14 A. From his cell.
15 Q. And how would that occur?
16 A. Again a staff member would come into his cell, place the
17 telephone call to his attorneys and when the attorney was on
18 the line again instruct them that the calls could not be
19 forwarded or patched through to another third party.
20 Q. Now, were any of Mr. Abdel Rahman's calls to his attorneys
21 monitored at any time by any officials from the Bureau of
22 Prisons?
23 A. No.
24 Q. Did there come a point in time that Mr. Abdel Rahman's
25 calls to his attorneys were monitored by a different agency?
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1 A. Yes.
2 Q. And what agency was that?
3 A. It was the FBI.
4 Q. And did you learn of that monitoring before it occurred,
5 when it first started?
6 A. Yes.
7 Q. How did you learn about that?
8 A. We received a copy of the order.
9 Q. Is that a court order?
10 A. It was a court order.
11 Q. Authorizing the FBI to do that?
12 A. Correct.
13 Q. And did that start at a particular point in time?
14 A. It did.
15 Q. Do you, as you sit here today, remember when that was or
16 approximately when that was?
17 A. I do not.
18 Q. What would the officials at the prison do to effectuate
19 those calls and to alert the FBI about the need to monitor?
20 A. I am sorry, ask me one more time.
21 Q. Let me rephrase the question.
22 Did anyone at the facility in Rochester take any steps
23 to assist in putting those calls through to the attorneys,
24 first of all?
25 A. Yes.
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1 Q. Do you know whether or not from your own personal
2 knowledge, whether or not any officials at the prison notified
3 the FBI that the calls were about to be made, if you know?
4 A. Specifically picking up the phone and calling the FBI and
5 saying we are calling the attorney, no.
6 MR. DEMBER: May I approach the witness, your Honor?
7 THE COURT: Yes.
8 Q. By the way, Ms. Christenson, did Mr. Abdel Rahman have an
9 actual telephone in his cell?
10 A. No, it was not in his actual cell. There is a sally port
11 area adjacent to his cell that was not specifically accessible
12 by him where those types -- where there is a telephone kept in
13 that area.
14 Q. And whenever a call would be made would he be brought into
15 that area?
16 A. Right.
17 Q. I have placed before you several documents that have been
18 marked for identification as Government Exhibits 331 through
19 355. Just take a look at them for a moment. Do you recognize
20 what those documents are?
21 A. I do.
22 Q. How do you recognize them, first of all?
23 A. They are copies of log books that were maintained on
24 Mr. Abdel Rahman.
25 Q. Was that a specific log book that only pertained to Mr.
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1 Rahman?
2 A. Yes.
3 Q. And can you explain to the jury who was responsible for
4 making entries into that log book and what the log book's
5 function was?
6 A. Anybody who entered Mr. Abdel Rahman's cell for whatever
7 the reason may have been was required to sign into the log book
8 and state their purpose.
9 Q. Would they describe what they did or what happened when
10 they visited Mr. Rahman in his cell?
11 A. Exactly.
12 Q. And what persons were allowed to come into his cell and
13 deal with him?
14 A. He had a unit team that was assigned to him which would
15 consist of a unit manager, a case manager, a correctional
16 counselor, nurses that were on staff.
17 THE COURT: Hold on.
18 Ms. Christenson, please keep your voice up. Go a
19 little more slowly and make sure to talk into the microphone.
20 THE WITNESS: Okay.
21 THE COURT: Thank you.
22 THE COURT: And maybe, I don't know if you were
23 finished the last answer but can you repeat the last question
24 and have Ms. Christenson answer it please.
25 Q. Ms. Christenson, you just mentioned that anybody who
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1 entered Mr. Abdel Rahman's cell would have to make an entry
2 into the log book as to what they did or what happened when
3 they visited him.
4 A. Right.
5 Q. My question was who was allowed into his cell to deal with
6 him? Who would make entries into the log book?
7 A. There would be members of his unit team, his unit manager,
8 his case manager, his correctional --
9 THE COURT: Hold on. Please speak slowly for the
10 court reporter and for all of us.
11 Thank you.
12 THE WITNESS: Okay. Nursing staff, doctors, other
13 clinical staff came in to see him, officers working the
14 particular unit where he was housed, lieutenants who are
15 supervisory officials of the correctional staff.
16 Q. Other than personnel who worked at the Federal Medical
17 Center either as correctional officials or medical officials,
18 was anybody else allowed into his cell besides those personnel?
19 A. No.
20 Q. Were those individuals, as you said, obligated to make
21 entries into the log book as to what they did whenever they
22 came to see him?
23 A. Right.
24 Q. And who maintained those log books, by the way?
25 A. I maintained those log books.
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1 Q. Is that part of your responsibility?
2 A. Yes.
3 Q. Are they maintained in the regular course of your business?
4 A. Right.
5 THE COURT:: And were the persons who made those
6 entries obligated to make those entries into the log book.
7 A. Yes.
8 Q. And Government Exhibits 331 through 355, are those excerpts
9 from the log book?
10 A. Yes, they are.
11 MR. DEMBER: Your Honor, the government offers
12 Exhibits 331 through 355 into evidence.
13 MR. TIGAR: May I inquire, your Honor?
14 THE COURT: Yes.
15 MR. TIGAR: Thank you.
16 DIRE EXAMINATION
17 BY MR. TIGAR:
18 Q. Ms. Christenson, you said that these are excerpts from the
19 log book, right?
20 A. Correct.
21 Q. And are they excerpts because they deal with particular
22 days or are they excerpts because there are things in the log
23 book that deal with other inmates?
24 A. These log books pertain only to Mr. Abdel Rahman.
25 Q. So these are pages out of a book that would be called a log
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1 book, right?
2 A. Correct.
3 Q. And they have been selected based on the dates that they
4 bear, right? These are some days out of the log book but not
5 other dates, correct?
6 A. It appears so.
7 Q. And your job was to keep the log book in custody?
8 A. Once the log book was completed from beginning to end, the
9 log book stated in that sally port area adjacent to his cell,
10 once it was completed it came to me for retention.
11 Q. Were you aware at the time that these entries were made
12 that there had been litigation involving Sheikh Abdel Rahman's
13 condition?
14 A. Generally.
15 Q. And did you anticipate that the things in this log book
16 could be helpful in the event that there was more litigation?
17 A. Not necessarily.
18 Q. But it was given to you as a paralegal to look at, correct?
19 A. Just as a place to make sure all the documents stayed
20 together.
21 Q. Some of these entries are by doctors, is that right?
22 A. Yes.
23 Q. Some are by lieutenants, correct?
24 A. Correct.
25 Q. Are all the entries signed?
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1 A. Yes.
2 MR. TIGAR: May I have just a moment, your Honor?
3 THE COURT: Sure.
4 MR. TIGAR: Thank you, your Honor.
5 Having had my questions answered I have no objections
6 to these exhibits.
7 THE COURT: All right.
8 Government Exhibits 331 through 355 received in
9 evidence.
10 (Government's Exhibits 331 through 355 received in
11 evidence)
12 BY MR. DEMBER:
13 Q. By the way, Ms. Christenson, you made reference to a sally
14 port in relationship to Mr. Abdel Rahman's cell. Would you
15 explain what that is?
16 A. There was an ante-room or sally port, as we refer to it,
17 that was directly adjacent to his cell where a variety of
18 supplies, mostly related to his medical care, were maintained
19 that he did not have direct access to.
20 Q. Was there a separate door from the sally room directly into
21 the cell?
22 A. Right.
23 Q. Could one enter Mr. Abdel Rahman's cell without going
24 through the sally port?
25 A. No.
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1 Q. So it's an ante-room?
2 A. Right.
3 Q. Ms. Christenson, the exhibits we have just admitted into
4 evidence, 331 through 355, those reflect legal calls that
5 Mr. Abdel Rahman made from obviously Rochester to his various
6 attorneys?
7 A. Yes.
8 Q. Do those excerpts, which are those exhibits, reflect all
9 calls that Mr. Abdel Rahman made to his attorneys while he was
10 at the Rochester facility?
11 A. No.
12 Q. Just for the benefit of illustration, why don't we put up
13 and show or display, with the court's permission, Exhibit 331.
14 THE COURT: All right.
15 MR. DEMBER: May we do that, your Honor?
16 Q. Ms. Christenson, do you have the first page of Exhibit 331
17 before you?
18 A. Yes.
19 Q. That is a two-page document, is it not?
20 A. Yes, it is.
21 Q. Let's just stay with the first page.
22 Do those pages reflect a typical entry in Mr. Abdel
23 Rahman's log books?
24 A. Yes.
25 Q. Where in this exhibit is it reflected that an attorney call
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1 or a call by Mr. Abdel Rahman was made to one of his attorneys?
2 A. On the second page.
3 Q. Okay. Can we turn to the second page please.
4 And where is that reflected?
5 A. It's the first entry on this page.
6 Q. Where it reads 6/23/00?
7 A. Correct.
8 Q. That is the date?
9 A. Yes.
10 Q. And approximately half a page down there is a description
11 entered into the log book about that call?
12 A. Yes, there is.
13 Q. And that is a description prepared by an official with the
14 Bureau of Prisons, is that correct?
15 A. That is correct.
16 Q. Thank you. Let's put that one aside.
17 You can take all those exhibits, which they all pretty
18 much look the same, don't they?
19 A. They do.
20 Q. Put those aside for the moment.
21 Let me ask you: Were there restrictions in the
22 Special Administrative Measures with respect to who could visit
23 Mr. Abdel Rahman in prison?
24 A. Yes.
25 Q. And who could visit him according to the SAMs?
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1 A. His wife and limited family members and his attorneys.
2 Q. And were records kept, by the way, of persons coming to
3 visit him?
4 A. Yes.
5 Q. By the way, let me just ask a clarifying question.
6 The log books you are referring to, were those
7 maintained for any other inmates at the Federal Medical Center
8 at Rochester or only for Mr. Abdel Rahman?
9 A. Only for Mr. Abdel Rahman.
10 MR. DEMBER: Your Honor, may I approach the witness
11 again?
12 THE COURT: Yes.
13 Q. Ms. Christenson, I have just handed up to you documents
14 which have been marked for identification purposes as
15 Government Exhibits 300 through 313, is that correct?
16 A. That is correct.
17 Q. And do you recognize those documents?
18 A. Yes, I do.
19 Q. First of all, how do you recognize them?
20 A. They are the visitor forms that every visitor within the
21 institution is required to complete.
22 Q. And are those standard Bureau of Prison forms themselves?
23 A. Yes, they are.
24 MR. DEMBER: Your Honor, at this point the government
25 offers Exhibits 300 through 313 into evidence.
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1 MR. TIGAR: May I have just a moment, your Honor?
2 THE COURT: Sure.
3 MR. TIGAR: No objection.
4 THE COURT: All right, no objection. Government
5 Exhibits 300 through 313 received in evidence.
6 (Government's Exhibits 300 through 313 received in
7 evidence)
8 MR. DEMBER: Your Honor, may we display Exhibit 300
9 first to the jury?
10 THE COURT: Yes.
11 Q. Ms. Christenson, do you have 300 in front of you?
12 A. Yes, I do.
13 Q. Would you tell us what kind of form this is?
14 A. This is just a standard visiting form utilized by the
15 Bureau of Prisons.
16 Q. And who is required to fill out such a form?
17 A. All visitors that would be deemed nonofficial.
18 Q. And when you say nonofficial, what do you mean?
19 A. Everybody who is not a Bureau of Prisons employee, a
20 Department of Justice employee, a member of the law enforcement
21 community.
22 Q. Essentially what does this form require the visitor to do
23 and to acknowledge?
24 A. To acknowledge that they are not bringing any contraband
25 into the institution.
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1 Q. And is the form dated, this particular exhibit dated?
2 A. Yes.
3 Q. What is the date?
4 A. February 7, '98.
5 Q. And who is the inmate who is being visited?
6 A. Mr. Abdel Rahman.
7 Q. And who is the person visiting him as reflected in this
8 exhibit?
9 A. Mr. Ramsey Clark.
10 Q. Why don't you turn to the second page of the exhibit.
11 Is that also a standardized form that attorneys must
12 sign before they come into the facility as well?
13 A. Yes.
14 Q. And Mr. Clark signed that form as well?
15 A. Yes, he did.
16 Q. Would you turn to the third page of the exhibit.
17 And is that page just like the first one we looked at?
18 A. Yes.
19 Q. The same form?
20 A. The same form.
21 Q. And what is the date on that exhibit?
22 A. February 7, '98.
23 Q. And who filled out that form?
24 A. Mr. Mohammed Yousry.
25 Q. Why don't we turn to the next exhibit, 301.
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1 MR. DEMBER: May we display 301, your Honor?
2 THE COURT: Yes.
3 Q. Do you have that one before you, Ms. Christenson?
4 A. Yes.
5 Q. Again, is that the same form we saw in Exhibit 300?
6 A. Yes.
7 Q. And what is the date on that form?
8 A. This is dated February 8, '98.
9 Q. And who is the person who is being visited, the inmate's
10 name?
11 A. Mr. Abdel Rahman.
12 Q. And on this first form who is the visitor who signed it?
13 A. Mr. Ramsey Clark.
14 Q. Why don't we turn to the second page. Is that also similar
15 to the second page of Exhibit 300?
16 A. Yes, it is.
17 Q. Also signed by Mr. Clark?
18 A. It is.
19 Q. Why don't you go to the third page of the exhibit.
20 Is that page dated? What is the date on that page?
21 A. February 8, '98.
22 Q. Whose name appears on the form as the visitor?
23 A. Mr. Mohammed Yousry.
24 Q. By the way, all the exhibits 300 through 313, are these all
25 visitation forms that relate to visits to Omar Abdel Rahman?
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1 A. Yes, they are.
2 MR. DEMBER: Your Honor, may we display Exhibit 302?
3 THE COURT: Yes.
4 Q. Do you recognize this form, Ms. Christenson?
5 A. Yes, I do.
6 Q. What is this form exactly?
7 A. This is a daily visitor log.
8 Q. And are there any visitors -- what is the date on the form,
9 first of all?
10 A. June 3, '98.
11 Q. Are there any visitors that appear to be -- any persons who
12 indicate they are there to visit Mr. Abdel Rahman?
13 A. Yes.
14 Q. What are the names?
15 A. Lynne Stewart and Mohammed Yousry.
16 Q. By the way, in some instances did you have this type of
17 form, the first page of 302, for all the visits that make up
18 the exhibits 300 through 313?
19 A. No.
20 Q. Why was that?
21 A. The room in which these records were maintained suffered a
22 fire. Some of the documents were damaged by the fire, by water
23 damage.
24 Q. And would you turn to the second page of the document, and
25 the visitor's name on that form is --
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1 A. Mr. Abdel Rahman.
2 Q. The visitor, the person.
3 A. Ms. Lynne Stewart.
4 Q. On the last page, is that Mr. Yousry's name on the last
5 page?
6 A. Yes.
7 Q. Those are for the June 3, '98 visit, is that correct?
8 A. Correct.
9 MR. DEMBER: May we display Exhibit 303, your Honor.
10 THE COURT: All right.
11 Q. Are there any visitors listed on that first page of Exhibit
12 303 that are at the facility to visit Mr. Abdel Rahman?
13 A. Yes.
14 Q. Who are they? What names are listed?
15 A. Mr. Yousry and Ms. Stewart.
16 Q. That is for a visit on September 29, '98?
17 A. Correct.
18 Q. Without turning to them by way of displaying, the next two
19 pages are similar to the other visitor forms we have shown?
20 A. Yes.
21 Q. And they pertain to the visit on September 29, '98?
22 A. Right.
23 MR. DEMBER: May we display 304, your Honor.
24 THE COURT: Yes.
25 Q. Ms. Christenson, this is a form for visits on September 30,
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1 '98, is that right?
2 A. That is right.
3 Q. And these also reflect that Ms. Stewart and Mr. Yousry
4 visited Mr. Abdel Rahman on that date?
5 A. Correct.
6 Q. And the two forms that follow are again the same forms that
7 each visitor would have to fill out before coming into the
8 facility?
9 A. Correct.
10 MR. DEMBER: May we display 305, your Honor?
11 THE COURT: Yes.
12 Q. Do you have 305 in front of you?
13 A. Yes, I do.
14 Q. Do those documents reflect a visit on March 1, '99 to
15 Mr. Abdel Rahman?
16 A. Yes, they do.
17 Q. And who are the visitors on that date?
18 A. Lynne Stewart and Mohammed Yousry.
19 MR. DEMBER: May we display 306, your Honor?
20 THE COURT: Yes.
21 Q. Ms. Christenson, do those two documents reflect a visit on
22 March 2, '99 by Ms. Stewart and Mr. Yousry?
23 A. Yes.
24 Q. If we turn to 307 and display it.
25 MR. DEMBER: Your Honor, may we display 307?
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1 THE COURT: Yes.
2 Q. Do you have that in front of you, Ms. Christenson?
3 A. Yes.
4 Q. These two pages reflect a visit on September 18, '99 to
5 Mr. Abdel Rahman by Mr. Clark, Ramsey Clark, and Mr. Yousry.
6 A. Yes.
7 MR. DEMBER: May we turn and display 308, your Honor.
8 THE COURT: Yes.
9 Q. Ms. Christenson, do these three pages of this exhibit
10 reflect a visit on February 18, 2000 to Mr. Abdel Rahman by Mr.
11 Jabara, Abdeen Jabara, and Mr. Yousry?
12 A. Yes.
13 Q. By the way, would you turn to the last page of the exhibit
14 please.
15 Do you notice the date on the document which is filled
16 out or has Mr. Yousry's name on it?
17 A. Yes.
18 Q. What is the date listed on that particular page?
19 A. The date says December 8, 2000.
20 Q. Was there a visit by any lawyers on that date at the
21 facility?
22 A. No.
23 Q. Did you check the records to confirm that?
24 A. I did.
25 Q. Was this particular page amongst the documents filed under
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1 February 18, 2000?
2 A. Yes.
3 MR. DEMBER: May we display Exhibit 309, your Honor?
4 THE COURT: Yes.
5 (Continued on next page)
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1 Q. Ms. Christenson, do these three documents that make up the
2 exhibit reflect a visit to Abdel Rahman on February 19, 2000?
3 A. Yes.
4 Q. By Mr. Jabarra again and Mr. Yousry?
5 A. Yes.
6 MR. DEMBER: May we turn to and display Exhibit 310 to
7 the jury?
8 THE COURT: Yes.
9 Q. Is 310 a logbook, visitor's logbook for May 19, 2000?
10 A. Yes, it is.
11 Q. Does it reflect visits to Mr. Abdel Rahman on that day?
12 A. Yes, it do.
13 Q. By whom?
14 A. Lynne Stewart and Mohammed Yousry.
15 Q. By the way, Ms. Christenson, have you ever met Lynne
16 Stewart?
17 A. I have.
18 Q. Where did you meet her?
19 A. At the Federal Medical Center in Rochester.
20 Q. Do you recall how many times you met her, though, or seen
21 her there?
22 A. Specifically, I don't recall.
23 Q. Do you remember what she looks like?
24 A. Yes.
25 Q. Do you see her in court today?
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1 A. I do.
2 Q. Would you identify her for us in the record?
3 A. She is sitting right there in the peach-colored outfit.
4 Q. Did you ever meet Mr. Yousry?
5 A. I did.
6 Q. Do you remember what he looks like?
7 A. I do not.
8 THE COURT: By the way, the record will reflect that
9 the witness identified Ms. Stewart. Go ahead.
10 MR. DEMBER: Thank you, your Honor.
11 May we turn to Exhibit 311 and display it, your Honor?
12 THE COURT: Yes.
13 Q. Do these three pages of this document reflect a visit on
14 May 20, 2000 by Ms. Stewart and Mr. Yousry to Mr. Abdel Rahman?
15 A. Yes.
16 MR. DEMBER: May we display Exhibit 312, your Honor?
17 THE COURT: Yes.
18 Q. And what's the date on this visitor log?
19 A. July 13, 2001.
20 Q. Are there any visitors listed for Mr. Abdel Rahman? Are
21 there any legal visits listed for that day?
22 A. Yes.
23 Q. And whose names appear on the log?
24 A. Mohammed Yousry and Lynne Stewart.
25 MR. DEMBER: Finally, may we display 313?
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1 THE COURT: Yes.
2 Q. Does this exhibit reflect -- first of all, what date --
3 this is a visitor log, is that correct?
4 A. Yes, it is.
5 Q. What's the date on the log?
6 A. July 14, 2001.
7 Q. And does Ms. Stewart's name and Mr. Yousry's name appear on
8 the log that day?
9 A. Yes, they do.
10 MR. DEMBER: Your Honor, may I approach the witness
11 again?
12 THE COURT: Yes.
13 Q. Ms. Christenson, I just handed up to you five documents
14 which are marked for identification as Government's Exhibits
15 314 to 318. Do you recognize those exhibits?
16 A. I do.
17 Q. And are those also excerpts from the prison logbook or
18 books maintained for Mr. Abdel Rahman?
19 A. They are.
20 MR. DEMBER: Your Honor, the government offers
21 Exhibits 314 through 318 into evidence.
22 MR. TIGAR: May I have just a moment, please, your
23 Honor?
24 THE COURT: Yes.
25 MR. TIGAR: No objection, your Honor.
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1 THE COURT: Government Exhibits 314 to 318 received in
2 evidence.
3 (Government's Exhibits 314-318 received in evidence)
4 Q. Ms. Christenson, do these exhibits reflect entries in the
5 logbook indicating that Mr. Abdel Rahman on various dates was
6 removed from his cell and essentially taken for visits with his
7 attorneys?
8 A. Yes, they do.
9 Q. You may put those down, if you like.
10 Ms. Christenson, was there any -- withdrawn.
11 Is there any Bureau of Prisons requirements that
12 persons coming into the facility to participate in visits with
13 inmates be searched?
14 A. Yes.
15 Q. What's the requirement, basically?
16 A. That we search for contraband items to make sure
17 unauthorized items are not being brought into the institution.
18 Q. And what do you mean by contraband?
19 A. Things such as cell phones and matches, particular items
20 that are not allowed inside the institution for security
21 purposes.
22 Q. By the way, was some of that contraband listed in the forms
23 that we introduced just a moment ago which were records of
24 various lawyers and Mr. Yousry visiting Mr. Rahman?
25 A. Yes.
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1 Q. Those forms also list various types of contraband?
2 A. Yes.
3 Q. And lawyers and other visitors are required to assure the
4 Bureau of Prisons officials they are not bringing those types
5 of items into the facility?
6 A. That's correct.
7 Q. Besides assuring the officials at the prison that such
8 items weren't brought in, were persons visiting inmates also
9 searched, physically searched?
10 A. Yes. They had to go through a metal detector.
11 Q. Now, were there any additional requirements for visitors to
12 Mr. Abdel Rahman?
13 A. No.
14 Q. Are there any additional requirements under the SAMs?
15 A. No.
16 Q. Was there a requirement that any Bureau of Prisons
17 officials at the facility at any point examined documents
18 brought in by any visitor coming to see Mr. Abdel Rahman?
19 A. No.
20 Q. Now, Ms. Christenson, where did Mr. Abdel Rahman have his
21 visits with his lawyers? Where were they conducted?
22 A. They were conducted in one of two places. There was a
23 conference room referred to as associate wardens conference
24 room and an office that was right next to that.
25 Q. It would be one of those two places?
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1 A. Correct.
2 Q. And during those visits were Bureau of Prisons officials
3 required to monitor those visits?
4 A. Visually, yes.
5 Q. Other than visually, were they permitted to monitor them
6 any other way?
7 A. No.
8 Q. And how could they do that visually?
9 A. Both the office and the conference room have a very large
10 window. More staff sat out in the hallway and just watched the
11 visit through that window.
12 Q. Now, did there come a point in time where the legal
13 department at the facility received a court order authorizing
14 persons to actually monitor conversations between Mr. Abdel
15 Rahman and his attorneys?
16 A. Yes.
17 Q. Do you have any recollection as to when that order arrived?
18 A. I don't recall the specific date.
19 Q. And was that a court order?
20 A. Yes.
21 Q. And do you know what that court order authorized,
22 essentially?
23 A. The monitoring, the surveillance of those legal visits.
24 Q. By whom?
25 A. By the FBI.
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1 Q. And do you recall if the order indicated how the monitoring
2 could be done? Was it simply visual monitoring?
3 MR. TIGAR: Your Honor, whatever order there is I
4 don't believe is in evidence and would speak for itself.
5 Your Honor, I have no objection to the witness doing
6 this. It saves time if we can be assured that we will get the
7 order at some point.
8 THE COURT: This might be a convenient time to break,
9 in any event, for the day. I was going to ask whether there
10 was a convenient time to break and this may be it.
11 Ladies and gentlemen, we will break for the day. I
12 did want to go over a couple of matters with you.
13 On this Thursday, it is July 1, and we will -- it is
14 not clear to me that we will sit at all at this point. It
15 really depends where we are in terms of trial. If we sat, we
16 would sit only for a couple of hours in the morning because I
17 know that at least one juror has a plane to catch in the
18 afternoon. So we wouldn't sit, if we sit, beyond 11:30 in the
19 morning. It is possible that we just won't sit. You don't sit
20 on Fridays and Monday is, of course, the day that we have a
21 holiday to celebrate the long weekend. That's the schedule.
22 As I told you yesterday, that I just wanted to repeat,
23 remember not to talk to the marshals. You can talk to them to
24 ask that you want to talk to Mr. Fletcher, but treat the
25 marshals as you would any of the other participants in the
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1 case. You shouldn't talk to the marshals about anything to do
2 with the case, of course, and if the marshals don't engage you
3 in conversation it is not because they are being impolite or
4 discourteous; it is simply they are following my instructions.
5 And all of this is to assure that you don't talk about the case
6 with anyone.
7 We will break for the day. Please remember my
8 continuing instructions not to talk about the case, don't look
9 at or listen to anything to do with the case. If you should
10 see or hear something inadvertently, simply turn away. Always
11 remember to keep an open mind until you have heard all of the
12 evidence, I have instructed you on the law, and you've gone to
13 the jury room to begin your deliberations.
14 Have a good evening. I look forward to seeing you
15 tomorrow.
16 All rise, please, and please follow Mr. Fletcher to
17 the jury room.
18 (Jury not present)
19 THE COURT: The witness may step down.
20 Please be seated, all.
21 There was an issue raised with respect to the witness
22 testifying about the existence of the order.
23 MS. BAKER: As Mr. Tigar well knows from litigation in
24 this case, the order that was issued by the foreign
25 intelligence surveillance court is classified. The defense
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1 asked that the orders be turned over to them and your Honor
2 denied that motion after reviewing all of the applications and
3 orders. So it is not the government's intention to present the
4 order in this case because of its classification, and we would
5 ask permission to present the Court with a proposed instruction
6 to tell the jury that there is, in fact, a court order that
7 authorized the surveillance, but that for legal reasons the
8 order cannot be displayed to them.
9 MR. TIGAR: Your Honor, I'm well aware of the
10 classification status of the order. I didn't say anything to
11 the jury that suggested anything improper. The decision to
12 classify is a decision of the executive branch of government.
13 What I thought I heard was a lawyer for the United
14 States standing up and waiving whatever possible objection
15 there could be by going into the content of an order that has
16 been kept from us. I really -- I don't know what's in the
17 order, but I find it hard to believe that I could cross-examine
18 this witness about what she is telling us without knowing
19 something about the order, and I'll go further.
20 If government counsel was intending to ask these
21 questions and then not to produce the order, they should have
22 asked for a CIPA. If this were a Fifth Amendment issue, your
23 Honor, under Rogers, we would be in waiver territory.
24 MS. BAKER: Your Honor, the scope of information
25 sought from the witness was simply that there was a court
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1 order, and I assume that the next question and answer was
2 intended to establish that the order authorized the videotaping
3 as a form of monitoring.
4 Those bare facts are obvious to everyone in this case
5 because of the form in which the evidence actually exists, and
6 those facts will become clear to the jury when they see the
7 evidence. So this is merely to prepare the jury for the
8 evidence that they are going to be seeing later in the case.
9 We are not in any way impinging upon any of the content that
10 causes the orders to have been classified in the first place
11 and to remain that way.
12 THE COURT: You know, it strikes me that there is a
13 relatively straightforward way of resolving the issue and the
14 parties should talk about it. There is no dispute or shouldn't
15 be that there existed a court order because it was the subject
16 of litigation. And I think the parties have an interest at
17 least at this point not -- and the questioning has been
18 reasonable and limited with respect to what the nature of the
19 order was, and the scope of the direct of Mr. Fitzgerald was
20 limited and the scope of the cross with Mr. Fitzgerald was
21 limited on that subject.
22 So I would have thought that there really shouldn't be
23 an issue here because surveillance occurred, it was authorized
24 by a court order, and it occurred, and everything else is
25 really not for the jury. How that comes out, I am not going to
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1 make any suggestions. You might talk about that yourself.
2 MS. BAKER: Your Honor, my concern is that Mr. Tigar
3 has now asked in front of the jury that the order be displayed
4 to the jury, which is a request that the government is not
5 currently able to fulfill.
6 THE COURT: I understand.
7 MS. BAKER: Is your Honor directing us to try to come
8 to some agreement as in the form of a stipulation that would
9 describe --
10 THE COURT: I can't direct you.
11 MS. BAKER: Requesting, suggesting.
12 THE COURT: I think it is in both sides' interests. I
13 don't know how you dealt with that, for example, in the other
14 cases where this issue, same issue must have come up.
15 MS. BAKER: Your Honor, in one of my prior cases
16 involving surveillance, the judge permitted government
17 witnesses, the FBI agent involved in the process to simply give
18 the kind of testimony that we sought from this witness today,
19 which is to say that there was a court order that authorized
20 surveillance of the particular type that was actually
21 conducted.
22 Again, in that prior case the issue had been litigated
23 pretrial or had been a defense demand, that the applications
24 and orders be turned over to them. That demand had been
25 denied, so there was no request by the defense in that case in
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1 the presence of the jury, as there has been here for the order
2 to be shown to the jury. So that's what gives us the wrinkle
3 that we need to try to find a way to address here.
4 MR. TIGAR: Your Honor, I have talked about this with
5 cocounsel and they led me to believe that there is more
6 downside to my insisting on this than there is the potential
7 benefit. I won't say all of the other hints that I have had
8 from what's gone on the last ten minutes; enough to say that
9 I've got the message. I withdraw my objection.
10 And if the government wants me to, I will get up in
11 front of the jury and withdraw it tomorrow in the presence of
12 the jury. If they think I have done something to suggest
13 something that the jurors might carry with them, I'll do that,
14 too, but I withdraw my objection. I don't want to see -- I
15 once upon a time wanted to see the order. Your Honor said I
16 couldn't. That's the law of the case and I'm stopping.
17 THE COURT: You should be able then to have a
18 conversation about -- without going through withdrawing the
19 objection. We can continue tomorrow with certain questions and
20 answers, right?
21 What's the schedule with respect to tomorrow? Is it
22 likely that we are going to have a witness who goes over into
23 Thursday morning, or are we going to have a convenient time to
24 break tomorrow?
25 MS. BAKER: Your Honor, in an effort to make it
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1 possible for us all not to have to sit on that Thursday, since
2 that seemed to be the preference, we have planned to finish
3 with the current witness, then to put on the witness who is
4 testifying about the Sattar search, and then to spend the
5 remainder of tomorrow presenting to the jury either exhibits
6 from the 200 series that were previously admitted, but had not
7 yet been published, and/or some of the Sattar search exhibits
8 that we expect and hope will be admitted tomorrow while that
9 witness is on the stand.
10 MR. FALLICK: Your Honor, I will have some
11 cross-examination of the witness to the Sattar search.
12 MR. TIGAR: Your Honor, a question. Will we be
13 hearing from the witness Smith, the prison witness Smith? Will
14 that be next week?
15 MR. DEMBER: We don't intend to call her at this time.
16 THE COURT: With respect to the Sattar search witness,
17 that then brings up the documents seized in the Sattar search,
18 which can certainly be identified as the documents seized in
19 the Sattar search without my passing on the admissibility of
20 all of those documents. By my count, there are about 80
21 documents and there are about, more or less, 50 which have been
22 conceded to be or agreed to be admissible. And the government
23 could, if it wanted, broach those documents. And I'm happy to
24 hear you whenever you want me to start listening to the other
25 arguments on the other documents.
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1 MR. BARKOW: Your Honor, I think it is worth noting
2 that the exhibits that are objected to, I think, perhaps
3 predictably are some of those that might need more powerful
4 evidence. So our decisions as to how to and when to display
5 and publish some of these are going to be informed ultimately
6 by which ones as a whole are admitted, because we wouldn't want
7 to pick, for example, the 20 worst pieces of evidence and just
8 show those and if nothing else gets in be left with that. We
9 can certainly pick out from the ones we reached agreement on
10 some. I don't know how many. I have to go tonight and look.
11 I don't know that we would do and I'll have a better idea
12 tomorrow what we do with respect to all of the ones for which
13 they are in agreement.
14 In some ways, it depends on what the rulings are going
15 to be with respect to some of the disputed exhibits. Again, I
16 stand behind everything I said before about the timing of the
17 rulings. We don't need them all at once because we do have
18 other speeches from the 200 series of exhibits that we still
19 seek to publish and read. So it is not an urgent matter. But
20 it is something to do with how we will inform the other Sattar
21 searches.
22 THE COURT: What is it exactly that you're asking me
23 to do?
24 MR. BARKOW: I'm asking that the Court begin to review
25 those that are in dispute; and as the Court is able and has
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1 questions just to raise them with us. And as the Court is able
2 to do it I realize it may take some time and we can just
3 address the questions. As we get rulings, we will move
4 forward. There is no set schedule that I'm asking the Court to
5 follow. As the Court is able to fit it in among other things.
6 THE COURT: You want me to do it now?
7 MR. BARKOW: I'm asking the Court to start.
8 THE COURT: Then you have to tell me what it is I have
9 to review and listen to you, because both sides wanted to make
10 an argument to me.
11 MR. BARKOW: In the most recent letter that I
12 submitted, your Honor, I listed the exhibits -- if I could have
13 a minute just to pull out my paperwork on this.
14 THE COURT: Could I just ask the question.
15 Ms. Shellow-Lavine, you were going to give me
16 something in writing? Has that been given to me already?
17 MS. SHELLOW-LAVINE: It was provided to one of your
18 law clerks just before the noon break in a sealed white
19 envelope addressed to your Honor.
20 THE COURT: There were two things in the envelope.
21 MR. TIGAR: Your Honor, if it will make the process
22 more efficient from your Honor's point of view, we have
23 endeavored in the attachment to Ms. Shellow-Lavine's letter to
24 set out a summary of the exhibits and a shorthand reference to
25 why we object. Many of those are self-explanatory in terms of
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1 our position and would not require additional argument or
2 discussion.
3 Globally, we are concerned with the hearsay material,
4 particularly in newspaper articles and so on on the basis that,
5 A, the fact that somebody possesses newspaper articles is not
6 particularly interesting or relevant and that, therefore, the
7 nonhearsay purpose that limits it and that limiting
8 instructions as to such a quantity of material, particularly
9 material that's ad hocked, would not do the trick.
10 Then there are some completeness and 403 arguments.
11 Most of those are, as I say, self-explanatory. I am not trying
12 to argue my motion now, but I'm just telling the Court that our
13 objections that we would want to make would probably be handled
14 fairly quickly on the record once your Honor has looked at the
15 material. I don't think that it would require carving out a
16 big chunk of time. If your Honor would like Mr. Barkow and I
17 to be here tomorrow morning to do it or take a real short lunch
18 break so we don't cut into jury time, certainly we at this
19 table would be pleased to do that.
20 MR. BARKOW: That would be fine to do that, your
21 Honor.
22 MR. FALLICK: The two main objections we have to
23 exhibits, one is a videotape, 2048, which I believe would
24 require your Honor to review. And then there is one we could
25 work out a stipulation, but on 2064, Exhibit 2064 are exhibits
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1 from an immigration proceeding which I believe your Honor would
2 need to review and they are of some length.
3 MR. BARKOW: 2064 has not yet been submitted to the
4 Court, your Honor, because I was hoping to talk a little more
5 with Mr. Fallick about that.
6 MR. FALLICK: Where the government stands, 2048, which
7 is a videotape --
8 MR. BARKOW: 2048 is being -- there is a full
9 videotape. And then what the government is going to propose is
10 that it be either admitted in or published. We would seek to
11 admit the excerpt that we deem as relevant. We are making that
12 excerpt. I had mentioned that in the letter so we can submit
13 the videotape to the Court so the Court can review the
14 videotape of what we view as relevant if the Court has the time
15 to do so.
16 THE COURT: So plainly I can't rule. I wouldn't be
17 able to rule on 2048 or 2064 at this point.
18 MR. BARKOW: We are not asking to you rule on 2064 and
19 you would definitely not be able to rule on 2048 because you do
20 not have it.
21 THE COURT: Could you give me a preview of what the
22 disputed documents are that you want me to look at in
23 particular?
24 MR. BARKOW: Your Honor, the first exhibits that are
25 objected to that we would like you to look at in particular are
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1 Exhibit 2070, which is an exhibit to which Stewart and Yousry
2 object but not Sattar. That is a tape that has two
3 transcripts, 2070TA and 2070TD, one for each side of the tape.
4 This is the sink their ships speech by Abdel Rahman which is in
5 the indictment and I think was also mentioned in Mr. Morvillo's
6 opening statement. It is a speech by Abdel Rahman where he
7 calls for the sinking of the ships of the Americans, the
8 destruction of their corporations, et cetera.
9 And so in our view, that is a statement by Abdel
10 Rahman, a coconspirator statement in furtherance of the
11 conspiracies, and also therefore be admissible for all purposes
12 against all defendants who are charged in those conspiracies.
13 And furthermore, with respect to Sattar, having it in his
14 possession, it would be admissible for his knowledge. But we
15 think that is an exhibit that would be admissible without the
16 limiting instruction because it is a statement by a
17 coconspirator in furtherance of a conspiracy and also an overt
18 act.
19 THE COURT: The only objection that's listed with
20 respect to that is relevance and 403.
21 MR. TIGAR: Also, there is no date. Relevance in this
22 case depends upon the establishment of the fact, when was this
23 said.
24 MR. BARKOW: Your Honor, the tape -- we don't have an
25 exact date for that tape, but on the flip side of the tape
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1 there is a reference to 1996. What's on the tape is an
2 interview that occurred in 1996, and therefore we think that
3 that is some evidence that that tape is dated approximately in
4 that period.
5 Furthermore, in Exhibit 3516T, there is a reference in
6 a memorandum by Pat Fitzgerald that makes reference to the
7 dissemination of that speech and, therefore, we view that
8 speech as occurring around or about 1996 or 1998. That range
9 is not exact, but it does overlap with Count 1, certainly.
10 Abdel Rahman's other speeches that are being admitted,
11 some that have already been read, predate that. For example,
12 the speech that I read was from 1990 and that speech clearly,
13 based on its content, occurred while Abdel Rahman was in prison
14 and, therefore, is connected to the core of the case in terms
15 of the efforts to get his word out of prison to encourage
16 actions to be taken on his behalf to get him out of prison. It
17 is an urging for people to take action against the United
18 States to free him, free him from prison, and that also is
19 another fact that dates it after his conviction, at least, in
20 late 1995.
21 So with that we think that under Rule 104, the Court
22 can consider that type of information, even if it ultimately
23 does not make it before the jury, in making its determination
24 as to when the speech was made and whether the speech is
25 relevant to the charges in the case, and then the speech could
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1 be admitted perhaps with some or all or none of that additional
2 information that the Court uses to evaluate predicate questions
3 of admissibility.
4 That's the proffer to the Court about the predicate
5 question of the admissibility; therefore, the relevance and
6 authenticity, I guess, of that speech in terms of its timing.
7 The other exhibit that we wanted -- this is a very
8 short one, but 2083 is an exhibit that we would like to use at
9 an early stage. I am not sure if Mr. Tigar -- I can't recall
10 if Mr. Tigar is still objecting to this one, 2083. It was in
11 my letter. For some reason I'll stop if -- I think they
12 withdrew that.
13 One of the first things that we would like the Court
14 to look at is 2070T. With respect to the newspaper articles,
15 kind of categorically, those are, I think, without exception
16 offered solely against Sattar, who does not object to many of
17 them, and we view a limiting instruction that they are admitted
18 against Sattar as appropriate and sufficient to detect any
19 possibility of spillover to the defendants. The jury is
20 presumed to follow the instruction. They are not offered
21 against the other defendants.
22 Many of these, if the Court looks at the chart, that's
23 an entire huge category of things that Stewart and Yousry are
24 objecting to that are not even being offered against them. In
25 our view, a limiting instruction would easily take care of any
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1 concerns that they have. That is a large category. Much of
2 the evidence is also offered to prove Mr. Sattar's knowledge,
3 intent, and state of mind offered only against him. And he had
4 it in his possession. And so the importance of it is that he
5 had it in his possession. There is an implication -- the jury
6 can certainly infer that he read it and therefore was
7 knowledgeable about its content and it is offered against him
8 to show what he knew and what he had -- what he had read and
9 what he was aware of.
10 Furthermore, the fact that he had them demonstrates
11 that he selected those particular articles as significant
12 enough to save and keep. And so it is further relevant to his
13 intent and his state of mind as to why, of all the articles he
14 could have chosen, he had those particular articles about that
15 subject, which feeds into the first point which makes it more
16 likely that he read them. Again, they are not offered in large
17 part against Stewart and Yousry. They are offered to show
18 Mr. Sattar's state of mind, his knowledge, and we fail to see
19 how a limiting instruction would not be sufficient to detect
20 any possibility of prejudice to the defendants against whom it
21 is not admitted.
22 MR. TIGAR: Very briefly, your Honor, if I may, I
23 think with respect to 207, the 1990 tape of Sheikh Abdul Rahman
24 that was received I thought was received because Ms. Stewart
25 heard it. It had been an exhibit in this trial. So that basis
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1 of admission doesn't come in here.
2 So the question would be relevance depending upon the
3 establishment of a fact, and the government would have to go
4 through and proffer facts sufficient to sustain the relevancy
5 determination if it wanted to offer this as coconspirator,
6 nonhearsay. Now, they can, under Bourjailly, use internal
7 evidence to help make that determination.
8 MR. BARKOW: Your Honor, that 200 series of exhibits
9 were not admitted solely because Ms. Stewart heard them. There
10 was no limiting instruction with respect to those. In fact, in
11 the initial draft proposed stipulation provided to the
12 defendants, it said at the top that the exhibits would be
13 admitted without limitation. Of course, that wasn't read to
14 the jury, didn't make the ultimate stipulation because that
15 wouldn't make any sense to the jury. But that was made
16 explicit in the stipulation when it was first provided. And
17 then when it was put into its final form so it can be admitted
18 as an exhibit, that was admitted. That's not evidence.
19 But there was no limiting instruction. There was no
20 request for such and the discussion was explicitly premised on
21 the notion that they were admitted without limitation because
22 they were speeches by a coconspirator Abdel Rahman and a member
23 of the conspiracy, therefore showing his intent.
24 This sink their ships speech is similar. It was just
25 found in a different place. For example, one of the
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1 speeches -- and I can't recall -- I think it might have been
2 the one that Mr. Morvillo read -- was found during a search of
3 Nabil Elmasry and this tape was found in a search of Sattar's
4 residence. Otherwise, they are the same. They stand on equal
5 ground. They were just found in different places. The first
6 set of speeches, the 200 series, were admitted without
7 limitation and we just -- and we view this one as the same.
8 MR. TIGAR: As I was saying, your Honor, the
9 stipulation recited that each of these tapes was received in
10 evidence at Abdel Rahman's trial in 1995 and Lynne Stewart was
11 present. That's the reason I signed the stipulation. It was
12 my interpretation of your Honor's decision with respect to
13 admissibility. If I'm wrong, I'm wrong. But that is our
14 position.
15 THE COURT: I am going to let you --
16 MR. TIGAR: Whatever order the Court wants.
17 THE COURT: I would like to continue on this.
18 We went through a long discussion with respect to the
19 admissibility of evidence from the Rahman file with respect to
20 what the government would be required to do with that evidence
21 and the degree to which this would be resolved by what the
22 parties stipulated to as opposed to independent evidence,
23 including Mr. Fitzgerald testifying and translators testifying,
24 and the record will be what it is.
25 But my recollection was that the exhibits were
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1 received with no objection with respect to authenticity,
2 foundation, and so they were admitted for all purposes. And a
3 second part of the stipulation was that they were also received
4 as exhibits at the trial of Abdel Rahman so that they could
5 also be received for purposes of the knowledge, intent, state
6 of mind for Ms. Stewart, who heard them in the course of the
7 Abdel Rahman trial.
8 (Continued on next page)
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1 And the defendants said that they could make arguments
2 that, for example, the exhibits were cumulative or other kinds
3 of 403 objections with respect to those exhibits. But they
4 weren't just received for purposes of state of mind. Now,
5 those exhibits are there. We deal now with other exhibits and
6 of course I will listen to arguments with respect to any
7 exhibits as to which there is objection and it's not an answer
8 to me that we have already received similar exhibits. So if
9 there is an objection, of course I will pass on it.
10 MR. TIGAR: The only reason I note about similar
11 exhibits is I think that is part of the 403 determination.
12 That is our point. But I hear what your Honor says about what
13 your Honor felt was the theory of admissibility. I did want to
14 make some other points of this.
15 Just to assist your Honor in reading, the lengthy
16 Exhibit 2010, 200 pages of articles from newspapers, we had a
17 question about that -- the trial transcript, the summation, the
18 2015 series. This jury has been instructed that summations are
19 not evidence and we have therefore taken the position that all
20 argument, whether made by lawyers at that trial or made in the
21 brief to the Second Circuit that the government also wants to
22 put in evidence, should not be received in evidence. That is
23 just our blanket position. But if it is, then of course there
24 is a 106 issue and we will cross that.
25 2031 strikes us as particularly difficult even with a
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1 limiting instruction. We do disagree. I don't think
2 Mr. Sattar's counsel objected to it -- we do. And that is one
3 of those things in which a limiting instruction would, in our
4 view, not be adequate. There would be another severance motion
5 behind it if it did come in, and so on. I don't think I need
6 to elaborate on that.
7 THE COURT: One of the problems I am having is the
8 chart that I was given most recently that I was looking at as
9 you spoke is the one that Ms. Shellow-Lavine gave and it
10 doesn't indicate, for example, who it's being offered against
11 and for what purpose so I have to cross check this list against
12 the list that the government gave me.
13 MR. TIGAR: I apologize, your Honor, that we didn't do
14 it.
15 THE COURT: It's all right.
16 MR. TIGAR: I happen to remember those things. That
17 is offered only against Mr. Sattar and that is a place where we
18 think a limiting instruction is not adequate. Wherever we have
19 objected to something that is being offered only as to
20 Mr. Sattar or only as to Mr. Yousry if that has occurred, we
21 are taking the position that a limiting instruction would not
22 be adequate.
23 The only other matter that I wanted to underscore --
24 oh, similarly, your Honor, the only matter I wanted to
25 underscore without doing all this is 2054 and as to that what I
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1 said to Mr. Barkow was that given that we have a speech made by
2 Omar Abdel Rahman in Denmark that is already in evidence, that
3 the marginal relevance of that should be measured against the
4 possibility that some juror in looking at it would make a
5 connection it's not at all supported by the evidence. It
6 doesn't appear to be relevant to anything in the case and the
7 potential that if it's in evidence and it can go to the jury
8 room that it would be misused we thought was quite high.
9 That is not all of our objections, your Honor, but I
10 think it gives a picture of where we are coming from there and
11 thus if you only give me 5 minutes more tomorrow. Whatever it
12 is, I don't want to take jury time with it. That is why I am
13 doing this. I am done now.
14 MR. BARKOW: Your Honor, it might be worth, your
15 Honor, with respect to the individual exhibits that Mr. Tigar
16 spoke about for us to tell the court our thoughts with respect
17 to those.
18 With respect to the lawyers' argument is not evidence,
19 obviously it's different in this trial, lawyers' arguments are
20 not evidence. We are offering these to show knowledge on the
21 part of the person who had them as to what was said, similar to
22 the newspaper articles. Mr. Sattar worked on or I think will
23 try to prove that he worked on the defense team in the case,
24 had copies of the transcripts of the arguments in the Abdel
25 Rahman trial, therefore had awareness, as we have said Ms.
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1 Stewart did by virtue of her participation as a lawyer. He had
2 awareness of what happened at that trial and the arguments are
3 one of the ways where what happened in the trial is weaved
4 together, and he had possession of it and he kept it and
5 therefore we think that we can infer that he might have read
6 them and therefore knew what was said and therefore had
7 knowledge about Abdel Rahman and what was proven about Abdel
8 Rahman at trial.
9 We view that as different as saying in this case
10 lawyer argument is not evidence, which clearly it isn't. It's
11 not offered when it's found in Mr. Sattar's home. It's not
12 lawyer argument per se. It's a document that reports what was
13 said. He might have disagreed with it, he might not have
14 thought it was right, but he had it and he read it, or he may
15 have read it. And that objection seems to go to weight and not
16 admissibility of that because he is free to, I guess, put in
17 other things that might counter the implication that we are
18 creating.
19 With respect to Exhibit 2031, that is the copy of the
20 Protocols of the Elders Of Zion. That is offered only against
21 Mr. Sattar. We think that a limiting instruction would
22 appropriately confine the use of that evidence to Mr. Sattar
23 and Mr. Sattar is charged with issuing a fatwah to kill Jews.
24 The Protocols of the Elders Of Zion is a book that alleges a
25 Jewish conspiracy to control the world.
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1 I think the connection between one of the central
2 allegations against him and that book demonstrates that it is
3 relevant that he had that book, that perhaps he read it, it's
4 relevant to his intent and also to show that he issued the
5 fatwah and, contrary to what appears to be the Sattar defense
6 theory, that he believed in it and actually believed that Jews
7 should be killed rather than just participating in a political
8 debate about what had just happened in Israel a few days before
9 it was issued.
10 It's not offered against Stewart or Yousry and we
11 think that it ties very closely to his conduct in issuing the
12 fatwah to kill Jews under someone else's name, under Sheikh
13 Abdel Rahman's name to give it added force, and so we think his
14 possession of that book, which is filled with hatred toward
15 Jews, shows that he meant it when he issued the fatwah.
16 The Denmark article, I think 2054, as I told Mr. Tigar
17 before, we are not going to try to draw any connection between
18 Abdel Rahman's presence in Denmark in 1990 and an article that
19 said in '95 Islamic Group members -- it says Islamic Group
20 members were charged in Denmark for and participated -- members
21 of the Islamic Group, an organization that has carried out
22 bombings in Egypt, we are offering that to show Sattar's
23 knowledge of the content of that article. There is not going
24 to be any connection drawn or attempted between that an Abdel
25 Rahman's speech in '90 and, in fact, we have reached an
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1 agreement with respect to another piece of evidence found in
2 the Sattar search, Abdel Rahman's passport, that we would just
3 agree that the speech in Denmark was given in '90 rather than
4 affirmatively using the passport to prove that Abdel Rahman was
5 in Denmark.
6 And also we would agree that the passport was found in
7 Sattar's possession. I thought that that dealt with the
8 objection in the attempted or the fear of a connection between
9 the Denmark article about '95 and the Denmark speech. But
10 there is not going to be any allegation or suggestion that
11 there is any connection between Abdel Rahman and the '95 events
12 and so that is just another newspaper article that Mr. Sattar
13 had clipped and had possession of and had knowledge, we
14 believe, of its contents. I hope that was clear. There are a
15 lot of exhibits on the table.
16 There was one other category of evidence I thought was
17 worth pointing out, which applies to Exhibits 2014 and 2016 at
18 least, which are letters. For example, one of them, 2014, is
19 the letter from Yunis to Sattar telling Sattar that it was
20 Sattar's connection to Taha or the connection of Taha to Atia
21 that got Atia killed. We think the evidence at trial is going
22 to show that Yunis is Mustafa Hamza and therefore that is a
23 letter from an Islam Islamic Group leader to Sattar blaming
24 Sattar for getting Atia killed by connecting him to Taha.
25 That is a statement, in our view, by a co-conspirator.
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1 It relates to one of the central events in the case, the Atia
2 killing, and therefore is evidence of that conspiracy and the
3 existence of that conspiracy and what occurred with respect to
4 the Atia killing. The fact the letter was found in Sattar's
5 residence is evidence that it's authentic and therefore that
6 letter is a physical piece of evidence that has significance
7 regardless of where it was found and that is why we think that
8 it is admissible against all defendants because that is where
9 the letter was found, but it is a letter, a communication from
10 another Islamic Group leader to Sattar.
11 The same thing is true, similar at least with 2016,
12 which is a letter from someone named Abdullah to an unknown
13 recipient. That speaks about -- and the court can read the
14 translation -- about the initiative and basically goes on to
15 criticize the initiative, the cease-fire, saying how can the
16 people -- and I am paraphrasing -- how can the people in prison
17 know what is best for us? Because they are in prison; they
18 don't know. And three operations have occurred and a
19 cease-fire can't be a good idea.
20 It's brought up by the people in prison and they don't
21 know. The connection of that to the case is evident and that
22 is offered only against Sattar for his knowledge, for his
23 knowledge and state of mind of the state of things and the
24 state of the debate in the Islamic Group and people in the
25 Islamic Group over the cease-fire -- who supports it, who
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1 doesn't support it, and that sort of thing. So I thought it
2 was worth pointing out that exhibit too because it's of a
3 different sort as the letter.
4 THE COURT: What exhibits do you want me to review?
5 MR. BARKOW: I think it might be easier if we went
6 back to our office and sent the court a letter asking or
7 prioritizing the exhibits in order rather than me trying to do
8 it off the top of my head here.
9 THE COURT: Okay.
10 And I am perfectly happy to meet with you at 9 o'clock
11 tomorrow and to spend time over the lunch hour.
12 How long is the current witness going to be?
13 MR. DEMBER: Your Honor, I am guessing 15, 20 minutes
14 more on direct.
15 MS. BAKER: As I mentioned earlier, your Honor, we are
16 going to put together exhibit binders for the court. In light
17 of the fact that in connection with the disputes over the
18 Sattar search evidence that we have already provided the court
19 with copies of the 2000 series, do you want us to copy those
20 again in the set of binders or shall we assume that the copies
21 that the court already has of those are sufficient?
22 THE COURT: You mean in the redwell?
23 MS. BAKER: Correct.
24 THE COURT: I have them.
25 MR. TIGAR: This is to Mr. Dember.
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1 Are they putting in the SAMs through this witness as
2 well?
3 MR. DEMBER: In all likelihood, yes.
4 MR. TIGAR: Thank you, your Honor. I will have about
5 an hour of cross.
6 THE COURT: Okay. Anything else?
7 Good evening all.
8 (Trial adjourned to June 30, 2004 at 9:15 a.m.)
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1 INDEX OF EXAMINATION
2 Examination of: Page
3 PATRICK FITZGERALD
4 Direct By Mr. Morvillo . . . . . . . . . . . 2548
5 Cross By Mr. Stern . . . . . . . . . . . . . 2553
6 Cross By Mr. Tigar . . . . . . . . . . . . . 2585
7 Redirect By Mr. Morvillo . . . . . . . . . . 2638
8 Recross By Mr. Tigar . . . . . . . . . . . . 2685
9 Redirect By Mr. Morvillo . . . . . . . . . . 2690
10 EKKEHART HASSELS-WEILER
11 Direct By Mr. Barkow . . . . . . . . . . . . 2691
12 KARA CHRISTENSON
13 Direct By Mr. Dember . . . . . . . . . . . . 2711
14 GOVERNMENT EXHIBITS
15 Exhibit No. Received
16 2300A-2300D . . . . . . . . . . . . . . . 2558
17 401-404 . . . . . . . . . . . . . . . . . 2706
18 331 through 355 . . . . . . . . . . . . 2725
19 300 through 313 . . . . . . . . . . . . 2729
20 314-318 . . . . . . . . . . . . . . . . . 2740
21 DEFENDANT EXHIBITS
22 Exhibit No. Received
23 LS-12 . . . . . . . . . . . . . . . . . 2599
24 LS-11 . . . . . . . . . . . . . . . . . . 2628
25
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