1 July 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 16 of the proceeding and Day 7 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 July 1, 2004
8 10:15 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 MICHAEL FARBIARZ
18 Assistant United States Attorneys
19
19 KENNETH A. PAUL
20 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
21
21 MICHAEL TIGAR
22 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
23
23 DAVID STERN
24 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: The parties wanted to address the
4 government's motion in limine with respect to cross-examination
5 of the one or two authentication witnesses with respect to the
6 recordings.
7 I've read the papers and the parties wanted to address
8 it with me orally. So I'm perfectly prepared to listen to what
9 you would like to tell me.
10 MS. BAKER: Your Honor, I don't have any specific
11 points that I wanted to make to the Court beyond what was set
12 forth in the original motion. I requested the opportunity to
13 address the matter orally rather than submitting any kind of
14 written reply because I had difficulty deciding what I would
15 address in Mr. Tigar's opposition, and so I suggested that it
16 might be more useful if I were guided by your Honor if you have
17 any questions. If you have any questions in light of the
18 opposition submitted on behalf of Ms. Stewart, I'm happy to
19 address them.
20 THE COURT: Actually, not.
21 MR. TIGAR: I do have some comments to make to the
22 Court, your Honor.
23 THE COURT: Sure.
24 MR. TIGAR: By agreement with the court reporter, if
25 it is all right with your Honor, I will do it from the lecturn
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1 so that it is easier for him to follow what I'm saying.
2 THE COURT: Sure.
3 MR. TIGAR: If your Honor please, I wanted to address
4 not simply the in limine motions, which I was surprised to get
5 because I thought we were going to get a proffer. And we have
6 received some more material that I will share with the Court.
7 I want to address broadly the authentication issue
8 here and then talk about the necessary cross-examination that
9 would accompany any attempt to authenticate these materials.
10 Now, the authentication issue here is the electronic
11 surveillance issue. And the government has acknowledged, and
12 the Court has recognized it having done so, that the government
13 bears the burden by clear and convincing evidence of showing
14 that these materials are authentic as that term is used in the
15 rules of evidence.
16 In the old days of electronic surveillance, the kinds
17 of issues I am going to address and that the government is
18 addressing did not arise because the systems were manual. They
19 have been replaced by computers. The old recordings that they
20 had when I first started practicing law were analog, they were
21 tapes, and there were issues connected to authentication, but
22 nothing like what has presented here.
23 Today, because information is digital, there are
24 increased risks of altering and losing data. This is the same
25 thing that's happening all through our lives. In the old days,
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1 my first chemistry set I could carve a gun-like thing out of a
2 potato and put iodine and that reagent would color it and that
3 was a simple process. When I was in college I had a word
4 processor. It was called an Underwood typewriter. I created a
5 file by putting a piece of paper in, I typed, I stored the file
6 on my desk. And if it didn't make my desk too messy, I could
7 retrieve the file.
8 Today, without thinking about it, we use very
9 complicated technology to make and store our documents. And
10 almost every week I get a document in one file format, digital,
11 and I convert it into another, from WordPerfect to Word, and I
12 find that the process is imperfect. My computer crashes, I
13 call experts to help me. That's the world in which we live.
14 The same issues exist for authentication, reliability
15 of the system, reliability of the evidence, the truth-seeking
16 function, confrontation of the witnesses, the authenticating
17 witnesses. But now because -- and I am going to show some
18 charts that the government has been kind enough to show us.
19 There is this new role because technology, science is essential
20 to understanding how this evidence came into being and whether
21 or not what was done to it and with it means that it shouldn't
22 be admitted, or whether or not it should be given the weight
23 the government seeks. There is this new role and it is
24 gatekeeper.
25 THE COURT: I'm sorry?
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1 MR. TIGAR: Gatekeeper. It is the same, your Honor,
2 with let us say a test in a bombing case. The FBI lab comes in
3 and says, oh, this is ammonium nitrate. I know it is ammonium
4 nitrate because I had a complicated machine to tell that to me.
5 I didn't use simple high school chemistry reagents. I used my
6 machine. And then we would ask, well, what kind of a machine
7 is that and did you keep it up properly and did you clean it
8 and calibrate it and did you know how to work it?
9 So I want to start -- I want to make three points.
10 First, I would like to describe the old system, the way we used
11 to -- somebody used to do electronic surveillance. Then I want
12 to describe in some detail what we understand to be the FBI's
13 present system, and then address the evidentiary questions.
14 Our knowledge of the old system of electronic
15 surveillance begins for most of us here with the decision in
16 the Fred Black case in 1966 in which Thurgood Marshall admitted
17 the widespread unlawful surveillance the FBI had done. And
18 that led to a large number of hearings in federal courts on FBI
19 surveillance and how it had been done and what had been done
20 with the tapes and what use had been made and so on.
21 And even though the issue there was taint, the same
22 questions of authenticity and reliability were present because
23 the government bore this burden of showing whether or not the
24 material had led to evidence. And the test was simple.
25 For example, in the Fred Black case -- and I use that
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1 as an example -- there wasn't much technology. An FBI agent
2 named Penny Packer rented a room at the Sheraton Carlton Hotel.
3 He drilled a hole through the baseboard and inserted a spike
4 microphone into Mr. Black's bedroom. And Agent Penny Packer,
5 as his regular job -- this is before Title III. It was all
6 legal, approved by the Attorney General -- showed up every day
7 and put earphones on and listened to what happened in
8 Mr. Black's bedroom. Now, I became aware of it as a young
9 lawyer because Bobby Baker used to go there and use the room.
10 And it was an issue in the case United States v. Robert G.
11 Baker. It was easy. You could put the spike mike evidence.
12 You had Agent Penny Packer who actually did the surveillance
13 and then you could figure out whether you could get the
14 information -- whether this was reliable recording.
15 This same kind of very simple electronic surveillance
16 was what was at issue in a large number of other cases. It
17 came up in the John Connelly case, in the Bobby Baker case with
18 respect to embassy surveillance. They remain secret. It came
19 up in Chicago, H. Rap Brown and other cases.
20 In the Connelly case, which was a prosecution for an
21 alleged receipt of a gratuity, there was another authentication
22 issue. The prosecution there sought to introduce a tape
23 recording that had been made in the Nixon White House. And
24 there Judge Hart excluded it based on the same test that the
25 government has admitted and the Court has recognized because
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1 the Nixon White House taping system, at least as to that
2 conversation, did not yield reliable results in terms of that
3 particular exchange. And so what Judge Hart did there was to
4 say that the prosecutors could play it when Mr. Connelly took
5 the stand, and he could listen to it and then they could argue
6 about what it meant.
7 THE COURT: Doesn't sound like it was kept out.
8 MR. TIGAR: It was kept out in the government's case
9 in chief, your Honor. That was the important point. When I
10 say kept out, I mean that authenticity was held not to have
11 been established sufficient. And what happened was, they were
12 told that they could play it for Mr. Connelly and ask him what
13 it said through earphones, they could play it for him. I do
14 not recall whether thereafter they could play it for the jury.
15 I just don't remember. This is one of those things where even
16 though you were at the trial you might have forgotten some of
17 the things that went on.
18 THE COURT: That was the same taping system that was
19 admitted in the other cases?
20 MR. TIGAR: The Nixon White House taping system?
21 There were other cases in which Nixon White House tapes were
22 admitted, your Honor, and that's the importance here, that a
23 particular conversation with people who didn't happen, under
24 those circumstances apparently, to be close enough to the
25 microphone, whatever it was. And the dispute was, did
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1 Mr. Connelly say to the president that there was bribe money in
2 Texas, or was he talking about something else? It was the
3 meaning of words. But that was all pretty simple because you
4 would have the tapes, they had the answers, there it was.
5 Now there is a different system, your Honor. It is
6 completely different from those old cases. And that's because
7 of two things. First, electronic surveillance has become
8 ubiquitous in certain kinds of cases. And, second, because
9 FISA electronic surveillance has far outstripped Title III
10 electronic surveillance as a law enforcement tool, the
11 significance of that is that, in my experience, in the
12 experience of cases that I've litigated -- because my
13 experience is not relevant -- in the experience in cases that
14 I've been involved in, Title III surveillance was required to
15 be acquired and maintained in certain ways that the statute
16 laid out.
17 Because FISA surveillance is acquired for an
18 intelligence function, at least prior to the Patriot Act, and
19 used for an intelligence purpose, and because there are no
20 statutory controls on what's done with it, that creates, that
21 is to say, not the same kind of statutory controlled in Title
22 III that creates issues.
23 Let's look at the issues. Before July of 2000 -- I
24 wonder if we could have this up on the screen -- the government
25 has supplied us with this document and I guess I can't display
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1 it on the screen. But I'll be happy to hand up a set of these
2 things to the Court. There are exhibits the government intends
3 to use with Mr. Elliott.
4 May we approach, your Honor?
5 THE COURT: All right.
6 MR. TIGAR: I'll give these to your Honor's law clerk.
7 The system about which I'm speaking is the first page,
8 which is called technology refreshed time lines. Prior to July
9 of 2000, the FBI used this Lockheed Martin system. Despite our
10 repeated requests, we have never received the original files
11 that resulted from this interception. We don't know what file
12 format was used, we don't know anything about this. All we
13 know is that at some point the information was captured on a
14 computer. And if your Honor will look at the sheet headed
15 switch-based intercept capability, your Honor can see that.
16 Now, this switch-based intercept capability leaves out
17 something. Here is the target, here is the called party, here
18 is the telco switch, here is the collection device. It is when
19 we get to the collection device that we start to have
20 difficulties. Of course, they would have to prove the
21 reliability of the connection between the telco switch and the
22 collection device. But the collection device is in fact a
23 computer. It creates a digital file. On another one of these
24 pieces of paper that file, the one headed conversion of audio
25 files, is called SRI, signal related information. I gather
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1 that that is a generic term, information related to the signal,
2 rather than being a file extension.
3 Then there is something called compressed content. I
4 don't know what that means exactly. Just reading it, it
5 appears that once the signal-related information is acquired in
6 a digital form, it is thereafter compressed in some way, that
7 is to say, a file of X bytes turns out to be compressed to make
8 a file of X divided by some integer bytes.
9 The trouble, of course -- now we begin to get into the
10 difficulty. We can't know whether or not this is a reliable
11 method of acquisition and storage unless we can inquire what
12 the different file formats were and what kind of compression
13 took place. We do know, based on our experience with the MP3
14 files, that at least the automated system of file compression
15 and retrieval and furnishing in discovery was, in our
16 respectful submission, deeply flawed. And while we have not
17 had a great deal of time since seeing the government's motion,
18 and no time at all since we received the materials that are
19 before your Honor, none, I did speak to a computer consultant.
20 Ultimately, as the government says in its motion, the
21 files to be offered to this jury will be .VOC files, .VOC
22 files. We don't know the Lockheed file format. We had never
23 seen those. We know they did exist and are stored on machinery
24 that since has been dismantled and in large measure destroyed.
25 My understanding, your Honor, is this. That in the marketplace
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1 there were a number of competing technologies for storage,
2 compression, retrieval of audio files. .VOC has become a kind
3 of standard. And there are companies that specialize in file
4 conversion. I am told that a large number of problems exist in
5 file conversions into the .VOC format and that they are similar
6 in character to the problems encountered in shrinking and
7 reinflating files into and out of MP3 back and forth to .VOC.
8 That, of course, is as much information as I could possibly
9 obtain since I have not received the discovery that would
10 permit our computer experts to make any further evaluation.
11 But this, of course, is just the first step. The
12 material is acquired. Now, because a digital file is a
13 document within the meaning of the original writings rule, and
14 because of the authenticity or requirement, we need to examine
15 the technology in order to see that this machinery really is
16 capable of doing what it says.
17 The Ratheyon material, as I pointed out in my paper,
18 the Ratheyon system automatically logged the date and time of
19 incoming calls in a way that was preserved on the hard drive.
20 I don't know whether the same thing occurred here. And, of
21 course, the hard drives don't exist anymore.
22 We have real chain of custody problems and those
23 custody problems are made more difficult because operating
24 systems keep different amounts of information on hand about
25 what is done to manipulate files. Sometimes if you use the log
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1 function on your hard drive, if you have a windows-type
2 operating system you can tell what's been done, what files have
3 been changed and when. You can activate certain things in
4 programs that will tell you when files were backed up, what was
5 done to them, were they shrunk, and so on. In fact, we have
6 already informed the Court by letter of a program that the
7 government had -- I am not going to say anything more than just
8 this -- that gives them the capability of file manipulation.
9 And apparently, based on the one example we have, creates a log
10 that says, hey, somebody was in here, but what we have doesn't
11 show what the somebody was doing in there. What we know is, we
12 have some idea what they could have done.
13 So what I'm trying to show here is that in order to
14 know whether or not these things are what they are claimed to
15 be, there is a whole technological path that is similar in
16 character to what you have to do to present forensic evidence
17 of the contents of a chemical substance or a fingerprint or
18 whatever. Why is it important? Of course, in the old days in
19 the audiotape -- and once upon a time I worked in radio. I
20 edited audiotapes. We did it with a razor blade and then we
21 would tape it together. A good expert could always find the
22 clicks and pops. You have the oscilloscope. You remember in
23 the old days of the taped surveillance, the expert would say
24 the oscilloscope and how it would work.
25 With digital files, you can't do that. A digital file
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1 can be altered seamlessly. On Slate.com last week there was a
2 picture which looked like as authentic as could be of Michael
3 Moore holding George Bush's hand and walking on the white house
4 lawn. That's what you can do with digital technology. Thus, a
5 basic function of reliability is -- requires that we be able to
6 track how these things worked.
7 And in that context the fact that the bureau had
8 enormous difficulty retrieving files responsive to discovery
9 demands here because of its system, the fact that they
10 destroyed and dismantled a system on which they could play
11 originals, the fact that they used a file conversion technique
12 that led to the corruption of files all become relevant bases
13 of inquiry. And I venture to say that there are questions
14 about how these files were handled and where they were stored
15 and when they were compressed, and where they were put that
16 Mr. Elliott will not be able to answer. I venture to say that
17 for two reasons.
18 First, because the production of Jencks material for
19 Mr. Elliott is, by any reasonable description, meager. It
20 doesn't relate to his responsibilities in the overseeing of
21 this system. It certainly nowhere approaches the breadth of
22 the general information that he apparently proposes to provide
23 on direct as reflected in the demonstrative exhibits which are
24 before your Honor.
25 And the second reason that I suggest that it is meager
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1 is, Mr. Elliott would not have known how the machines were
2 kept, whether things were working properly. What we do know
3 from the government's papers is that the government has not for
4 these purposes challenged our assertion, that the automated
5 production of information in the discovery process was
6 seriously flawed.
7 Now, if that's true, then let us imagine, your Honor,
8 a world in which the New York field office is conducting
9 literally hundreds of FISA surveillances, all through a
10 collection device, all through automated systems that are
11 described only peripherally and globally in the demonstrative
12 exhibits that are before you.
13 The people who were in charge of that system, we
14 respectfully suggest, are necessary to a proper authentication,
15 but that's not my job. The government could present its
16 evidence and then they will move for admission and the Court
17 will either admit it or not.
18 Under the Capanelli case, that quote the government
19 put in -- and that's why I didn't think I needed to cite any
20 more law other than what your Honor already decided. That was
21 a very simple system involved. Capanelli involved a digital
22 chip. The issue was there about which the Court talked was
23 that the defense was entitled to put on its own evidence and
24 presumably to cross-examine, which is its own evidence, to show
25 this jury that this system doesn't do what's claimed for it.
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1 Of course, we will want that right.
2 The problem here, your Honor, is that this insatiable
3 demand for privacy invasion created under this statute is --
4 makes for a complex system that has glitches. I think -- I
5 should have said this earlier. One of the early -- pre-FISA
6 electronic surveillances, it was an end to led to FISA.
7 Griffin Bell authorized the wiretap.
8 THE COURT: Capanelli said, of course, the defense
9 could introduce their own expert to question the reliability of
10 the government's evidence, and that's not been disputed in
11 these papers, either.
12 MR. TIGAR: That's right, your Honor. And I will tell
13 the Court how I interpret that statement in Capanelli. If the
14 defense is entitled to present their own experts, it would only
15 be because what those experts have to offer is relevant. If it
16 is relevant and if the witness the government tenders to me
17 knows it, I have the right to inquire on cross-examination
18 about the same subject matters about which I would present my
19 own expert. And if the government witness doesn't show -- I
20 don't know the answer to that or I don't know anything about
21 it, then he will say he doesn't know.
22 But the Capanelli part I was relying on, your Honor,
23 is defining the scope of relevance. Not only that, if it is
24 relevant, your Honor, then we have a 104 problem. It is pretty
25 unusual in authenticity determinations to have the defense
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1 calling evidence -- calling witnesses rather during the
2 government's case --
3 THE COURT: In Capanelli, the witness went to the
4 issue of reliability, not authentication.
5 MR. TIGAR: Your Honor, I understand that. But what
6 was the reliability issue? It was a change in file format. I
7 thought the reliability issue was a change in data storage
8 format.
9 THE COURT: As I read what Judge Haight said is, the
10 government puts on its evidence and if it is sufficient for
11 authentication, the material goes in, reliability is a question
12 of weight that goes to the jury. And Judge Haight said, of
13 course, the defense can put on its own expert witnesses to
14 question the reliability of what it is that the jury is
15 hearing. And it will be for the jury eventually to determine
16 what weight they place on what it is that they hear. And the
17 reliability goes to lots of things, including how close were
18 the microphones, how good was the recording. Chain of custody
19 also has gone to issues of weight.
20 (Continued on next page)
21
22
23
24
25
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1 MR. TIGAR: Your Honor, I think we are speaking of a
2 continuum. In order for evidence to be received the proponent
3 must demonstrate here by clear and convincing evidence that it
4 is what the proponent claims it is. Even if the court decides
5 as a preliminary matter that there is enough evidence to
6 sustain such a finding by clear and convincing evidence, the
7 opponent of the evidence can attack it.
8 Now, reliability comes in at both places. Let us take
9 the standard example of a chemical analysis. A witness gets on
10 the stand and says this substance is ammonium nitrate. I know
11 it because I put it in my machine and spectroscopically I saw
12 it as ammonium nitrate, and that is reliable. And I cross
13 examine and I say, Mr. Witness, did you calibrate the machine
14 before you did the test? And he says no. Well, then, I say
15 that is a good machine under Daubert. You are a good chemist
16 under Daubert, but you missed the whole entire deal. You
17 flunked because the way you use it is not sufficiently
18 reliable.
19 My point is, your Honor, that if it is true, and we
20 say it is, and I hope the court agrees, that technology and the
21 understanding of technology and science is essential to the
22 foundational question here, then Kumho Tire says that
23 reliability is something that lies on both sides of the
24 admissibility decision because of course unreliable evidence
25 should not be heard by the jury. That is why I used the term
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1 gatekeeper. So that is my answer.
2 I understand what Campanelli says and I understand --
3 and I take the court's point, so I will, if we ever get there,
4 take advantage of the recognition that on the reliability issue
5 there is relevant evidence.
6 I will go further. Under United States against Burr,
7 I can even call government agents, subpoena them, and
8 interrogate them about their system to attack their reliability
9 and take them as adverse witnesses. And we don't preclude
10 ourselves from doing it. And that is one reason, by the way,
11 that we think the motion in limine should just be denied out of
12 hand and I am not going to spend a lot of time talking about
13 it. I really want to preview for the court what I think are
14 the authentication decisions because I think we owe it to the
15 court and for 2 years we have been trying to get this
16 information so that we could perform tests and I don't want to
17 be seeking a continuance because we haven't had the data.
18 So that is my view of Campanelli. And if your Honor
19 interprets the case differently or finds that it doesn't stand
20 for all that I say, then I don't win that part of the motion.
21 But regardless of what that case is about, it seems to me the
22 authentication decisions rule out and that reliability is a
23 part of it. So what we have here is that once the data is
24 acquired -- and here comes another place where I am going to
25 disagree a little bit with what the government said and that
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1 your Honor accept it for purposes of our motion. Once the data
2 is acquired and compressed, they use it for their intelligence
3 purposes, whatever those are, the current investigation. Then
4 they archive it and then they retrieve it if there is a
5 criminal case. There are not the kinds of statutory standards
6 that there are in Title III about that whole process, and the
7 process is somewhat opaque to us, so far, but we will seek to
8 illuminate it when we have our chance. That archiving and
9 retrieval represent changes in file format and changes in
10 storage medium that create risks of unreliability and here is
11 the place where authenticity and the original-writings rule
12 intersect because, of course, unlike other kinds of data, this
13 data is digital. It is a document. And in order for secondary
14 evidence of contents to be received certain requirements have
15 to be met. And we will, of course, be inquiring about that.
16 Now, in our earlier motion that the court denied, you
17 found that our motion on discovery abuse was meritless because
18 we did not meet the last of the Zublake standards. I don't
19 know that Zublake was the case we were looking at but that has
20 become the much litigated issue. The last of the Zublake
21 standards was we had to show some prejudice and even after all
22 the things that have been done in that case Judge Scheindlin, I
23 think, eventually refuses to give a spoliation instruction
24 because the more Zublake couldn't meet the last requirement and
25 you said we could couldn't either. But the failure to keep
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1 records, the mistakes, the fact that the system was regarded as
2 inadequate for whatever reason and had to be not only replaced
3 but dismantled, the fact that files couldn't be found, those
4 are all things that have to do with reliability.
5 And, also, to point up the disagreement, the
6 intelligence information, once the stuff comes in at some point
7 they start integrating it into their general computer process.
8 It's useless to the FBI unless they can put it together with
9 what they are also doing. And that is why one of the things we
10 want to explore on cross is whether they were putting it into
11 the trilogy system, whether they were putting it into their
12 case response system and were they keeping pristine, clear
13 files available then for evidentiary purposes. And your Honor
14 rejected our trilogy argument based on the showing then made.
15 I will say to the court I made it in good faith. Last
16 summer when this whole issue came up about file formats and
17 stuff, I happened to be in the same place with a person who had
18 substantial law enforcement experience who I had known. And we
19 sat down and he shared with me some ideas about where I might
20 look to see these problems. And I have been investigating ever
21 since. He used to be in government, isn't anymore, used to be
22 a judge at the Eighth Circuit and then he had other jobs. That
23 idea, therefore, remains in my head and, once again, when this
24 witness is on the stand we intend to interrogate about what was
25 done with these files because that is essential to reliability.
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1 So, your Honor, it's like any other case, if the
2 government presented a expert on ink, on a document relating to
3 a securities transaction, they would have the full information
4 about the lab where the ink was tested and who tested it and
5 how they tested it and were they reliable. And recent events
6 showed the government cares very, very deeply about the
7 reliability of ink evidence on documents relating to security
8 transactions. All we are looking for is the right to explore
9 admissibility.
10 So what I have tried to do is give an foretaste of
11 what we believe to be the authentication issues here and how we
12 intend to begin our cross examination.
13 As to the motion in limine, I haven't heard the direct
14 yet.
15 Thank you, your Honor.
16 THE COURT: Ms. Baker.
17 MS. BAKER: Your Honor, let me begin by saying that in
18 a number of respects Mr. Tigar's descriptions of the two
19 automatic recording systems that were used here and how they
20 work, when they archive the files, whether or not there were
21 any changes in file format in the archiving process, his
22 assertion that those computer systems must necessarily be
23 integrated with other FBI systems, there were many inaccuracies
24 there and if the court wishes me to address any of them or in
25 any way to make a more detailed proffer of what we expect our
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1 witnesses to testify to regarding how the systems work and
2 their reliability, I am happy to do that.
3 Overall our argument to the court is that the evidence
4 that we have proffered as to how we intend to authenticate the
5 recordings that we will actually be offering into evidence in
6 the courtroom, that proffer makes clear that we will meet the
7 burden that we need to meet for the court to make the threshold
8 finding that a jury could find that the files are what we claim
9 they are.
10 And that, we respectfully submit, is the court's job
11 as gatekeeper, not to make the ultimate determination, but to
12 decide whether there is a sufficient basis for a rational jury
13 to make that determination under the applicable standard, which
14 is clear and convincing, but which the Federal Rules of
15 Evidence and the case law makes clear that is a burden that can
16 be satisfied in a number of ways.
17 So we respectfully submit that there is not any reason
18 with regard to the issue of authenticity to do anything other
19 than have the government's witnesses testify, and Mr. Tigar
20 will cross examine. At the appropriate point in time the
21 defense can present any contrary witnesses. There are many
22 areas that Mr. Tigar has raised as to which he will be able to
23 cross examine the government's witnesses and we don't dispute
24 that. If he wants to cross examine about whether there were
25 any changes between the format in which a recording was
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1 originally on the hard drive of a system versus the format in
2 which it was on the archiving medium used by the system, the
3 steps in that process, when that happened, et cetera, all of
4 that we acknowledge is appropriate cross examination.
5 But to get back to where I thought we were starting
6 today, which is the government's motion in limine, in the
7 government's view the relevant set of processes and procedures
8 and the relevant ground for cross examination or for defense
9 expert testimony is the steps in the chain where at the one end
10 of the chain you have the telephone call actually happening in
11 1996 or '98 or '99, or whenever it was, and being recorded at
12 that time to the hard drive of the automatic recording system
13 that was being used at the time, and then the intermediate
14 steps in the chain that get you to the DVD that the government
15 will be offering into evidence here at this trial and on that
16 DVD will be VOC files of the recordings.
17 As we tried to make clear in our motion in limine,
18 there was a separate process or a process that diverged at a
19 particular point in that chain and that other process, the
20 divergent process, resulted in a set of CDs or DVDs of a much,
21 much larger number of files in different formats at different
22 points in time that were produced to the defendants in pretrial
23 discovery. And the purpose of the government's motion was
24 simply to say that that divergent chain, once it breaks off
25 from the direct chain that goes from the original recording of
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1 the call when it happened live to the trial DVDs, that that
2 divergent chain that led to the discovery CDs and DVDs is
3 irrelevant and would be confusing and waste the jury's time,
4 and that is the area that the government seeks to preclude both
5 cross examination of the government witnesses and the calling
6 of defense witnesses.
7 And if the court wants me to address that any more
8 specifically I am happy to do it.
9 MR. TIGAR: May I respond just limited to what Ms.
10 Baker said, your Honor?
11 THE COURT: Sure.
12 MR. TIGAR: Limiting ourselves, your Honor, to the VOC
13 files, the VOC files that we received from the government after
14 our initial round of discussion, litigation, of those files
15 2,142 were corrupt and unreadable. How those files were
16 created I do not know but that is a percentage out of a total
17 of 88,000 that is significant. 3,317 of the files had
18 incorrect file names when compared to their header information.
19 That is to say, whatever system was used to generate file names
20 had made a mistake and the generation of file names is an
21 important part of the track or trace of when a conversation
22 took place and how long it was and so on, especially with
23 respect to some of these systems that generated a file name
24 that had date and time information on it.
25 For instance, on Mr. Yousry's phone 810 files were
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1 corrupt, and so forth and so on. So there are problems.
2 Because in our review of the VOC files we found so many files
3 with corruption, that is, difficulty, and we found -- when we
4 tried to process the VOC files and figure out where has this
5 file been and what are the problems with it, we simply kept
6 running into blank walls. Our computer consultants were unable
7 to process the files. All they could tell us is that there
8 were different technologies used for file conversion, which has
9 to do with the underlying reliability question but also with
10 the original writings question.
11 I mean, obviously the order of proof is up to your
12 Honor. I remember in the David Trone case we put a subpoena on
13 Griffin Bell, and Judge Brown wouldn't caution and he came in
14 and testified about authenticity and that was a part of it. We
15 are not planning to do any similar thing this time but we
16 respectfully suggest that this really is a serious issue, your
17 Honor, and it's an issue that has to do with the way the
18 government chooses to investigate these cases. Had they chosen
19 Title III, we wouldn't be here.
20 THE COURT: All right.
21 MS. BAKER: Your Honor, if I might just respond to a
22 factual assertion that Mr. Tigar made in what he just said.
23 The file names that the files bore on the discovery
24 CDs and DVDs, which are the same type of file name that they
25 bear on the trial DVDs, those file names were not created by
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1 either of the original recording systems. Instead, those file
2 names were created when the files were copied simply for the
3 convenience of all of us now using the files. On the original
4 recording systems the files have generic names that would be
5 meaningless and make the files difficult to use. For example,
6 on any one magneto optical disk files which come from a whole
7 variety of different surveillances all occurring at the same
8 time are named 1, 2, 3, et cetera, sequentially through the
9 last file on that particular disk. The names that the files
10 bore on the discovery disks, and bear on the trial DVDs, are
11 names that were generated from nonaudio data contained within
12 or associated with each file. And that nonaudio data was put
13 in the file or associated with the file by the automatic
14 recording system at the time the recording was made and that
15 nonaudio data, also referred to as signal related information,
16 or SRI, that nonaudio data, which includes the telephone number
17 and the date and time of the call, is how any particular file
18 or recording can be recognized as a file or recording that
19 occurred on the particular telephone number at the particular
20 date or date and time.
21 And we acknowledge that there were some issues in the
22 production of the discovery disks, some instances in which the
23 generated names of the files for some reason ended up not
24 matching the nonaudio data contained within or associated with
25 the file. And as we have proffered to the court, we believe
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1 that those are issues that arose because of the very, very
2 large numbers of files that were being retrieved and processed
3 through various automated systems and not individually checked.
4 On the trial DVDs -- and we have provided the defendants with
5 the first one of the trial DVDs -- on the trial DVDs the files
6 again have those same generated names for convenience to make
7 them more readily usable, but each file has within it its
8 nonaudio data from which the date and time and telephone number
9 can be determined. And each of those has been checked to
10 ensure that the file name matches the nonaudio data in the
11 file.
12 And so, again, the government submits that the issues
13 that Mr. Tigar has raised about files that didn't copy properly
14 when the FBI was copying 85,000 of them at a time and so they
15 ended up corrupted, or files out of that set of 85,000 where
16 there were some discrepancies between the file name and the
17 nonaudio data within the file, those were problems particular
18 to the discovery disks which resulted from that divergent
19 chain, that separate process, and those issues are not
20 relevant, we submit, to the trial DVDs which will contain in
21 total only approximately 200 to 250 recorded calls which have
22 been put on the trial DVDs through a separate process and have
23 been checked.
24 THE COURT: Mr. Tigar.
25 MR. TIGAR: Your Honor, I would like to step over to
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1 the lectern.
2 THE COURT: Sure.
3 MR. TIGAR: Thank you.
4 I don't like to waste jury time with fruitless
5 authentication inquiries. I think it is an insult to jurors
6 and I think that it is tactically very, very bad for me to do
7 that. I have been asking the government for 2 years could we
8 sit down, your techs and our techs, and see if there is really
9 a problem about this and they didn't have to do it, and they
10 decided not to do it. Now we have a jury in the box and I am
11 hearing for the first time detailed information about nonaudio
12 related, how files are created. Some of that we had but most
13 of it not.
14 THE COURT: I actually thought that that was in the
15 papers that the government submitted to me in their motion in
16 limine, the memorandum that laid this out, and as to why there
17 was a distinction with respect to the file names and how the
18 file names were determined.
19 MR. TIGAR: Oh, yes.
20 THE COURT: I also thought it had come up before, but
21 I could be wrong on that.
22 MR. TIGAR: I acknowledge, your Honor, that --
23 THE COURT: Can I just stop are for a moment?
24 The issue of discovery, you know, has come up and I
25 can't determine the degree of cooperation between the parties,
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1 a point which I have made before. All I can do is urge the
2 parties to cooperate and to decide motions which are brought
3 before me. When people seek discovery that they claim hasn't
4 been made, I rule. If it hasn't been produce and it should be
5 produced, I order it to be produced. And I decide motions that
6 are made before me. I had one motion on this subject which I
7 decided which the parties have already referred to me.
8 When this first came up a long time ago, it came up
9 with the hope that the parties would be able to cooperate and
10 sit down and at various points I got from the parties some
11 description of relations between the parties and the volume of
12 discovery, of course, which has been produced is really
13 extraordinary as reflected in the prior motion. In fact, it's
14 the volume of discovery in the case that is part of what is
15 here.
16 MR. TIGAR: I am not complaining, your Honor -- I am
17 sorry, had your Honor finished?
18 THE COURT: It's just a statement.
19 MR. TIGAR: I am not seeking relief about discovery
20 and I acknowledge that the government did make its description
21 of this file stuff in its motion. I am not talking about that.
22 When a DVD, a trial DVD, is offered in this case, it will not
23 be an original writing. The original writing is some tape.
24 The original writing is a file. The file is in a format. I
25 don't even know the file suffix, nor do we have the technology
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1 necessary to see whether or not the trial DVD is a duplicate
2 original or not. If we had the original it would take time,
3 but there are only 230 of them. We could give them to our
4 technology consultant, who has already started researching the
5 various formats and problems that are out there -- that is why
6 I could speak to your Honor about it -- and compare the
7 original to what is offered in evidence. If they are the same
8 or not materially different, then maybe we don't have an issue.
9 But as it now stands, I will start my cross examination by
10 saying Agent Elliott, what is the file suffix? Where is the
11 tape? A whole lot of things that might be interesting to
12 computer jockies but the stuff of which cosmic confrontations
13 are usually made, but if I must do it, then I will. That is
14 all I was saying, your Honor. And I am not complaining about
15 it. I mean, you know, I used to do it for a living. It's
16 going on having hearings with FBI agents and cross examining
17 them. But I am a law professor now and I have a different job,
18 but I will do it.
19 THE COURT: Well, you know, as you all know, I am a
20 great advocate of trying to work things out if I thought that
21 there was a reasonable prospect that the parties could work
22 things out. If, in fact, it's a realistic prospect that there
23 wouldn't be a dispute as to the authenticity and the parties
24 argued solely with respect to reliability of the 200 to 250
25 telephone calls out of 85,000 bits that have been produced, the
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1 parties are welcome and encouraged to talk about that. No one
2 promised in opening statements that there would be a dispute
3 with respect to whether these recordings were authentic or
4 would be introduced.
5 Parties did dispute over whether they would say what
6 the parties said that they said, but if there were a realistic
7 prospect that some of the authentication issues would be
8 resolved, the parties are certainly welcome and encouraged to
9 talk about that. I don't know if that is realistic or not and
10 I haven't been obviously involved in any of the discussions
11 that all of you may or may not have had on that.
12 MR. TIGAR: Your Honor, we have a standing CJA order
13 for our computer consultant. I don't want to involve the court
14 in discussions between the parties. We will see what happens.
15 I just wanted to preview, as it were, the kinds of issues that
16 I think were going to come up.
17 THE COURT: All right.
18 MR. TIGAR: Oh, and if your Honor does read these
19 motions and you tell me don't ask this question, don't ask that
20 question, then of course I won't do it. I had thought it was a
21 little bit premature.
22 THE COURT: Well, I have read the motions and I have
23 listened to the argument and I have carefully considered it and
24 I am prepared to rule on the motion at this point.
25 I really think that both the papers and the argument
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1 are far broader than the actual motion in limine. The motion
2 in limine is a limited one. The government seeks to preclude
3 the defendants from cross examining a prospective government
4 witness, and perhaps two witnesses, about the audio files and
5 DVDs produced in the course of discovery. The materials
6 produced in the course of discovery included about 85,000 audio
7 files that were obtained from monitoring the telephones of
8 Mr. Sattar and Mr. Yousry. Of those or of the telephone
9 recordings, the government seeks to introduce about 200 to 250
10 telephone calls.
11 The government represents that each of those calls
12 have been copied from the original media on which they were
13 originally recorded onto a trial DVD, and all of them are in
14 the .VOC format. Because of the volume of the discovery prior
15 to trial, the audio files were produced pursuant to an
16 automated process and included calls produced in an MP3 format
17 and a .WAV format. The representation is that none of the
18 calls on the trial DVDs are now in the MP3 format or the .WAV
19 format, and these calls have not passed through that format.
20 Despite the wide-ranging issues raised in the papers,
21 the government's motion in limine is a limited one and a simple
22 one -- to exclude the defendants from cross examining the
23 defendants about the voluminous audio files produced in
24 discovery, particularly in the MP3 and .WAV format, because the
25 production is irrelevant to the calls sought to be introduced
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1 at trial. It doesn't go to the authenticity or reliability of
2 those particular recordings, and to the extent that the
3 examination could have any relevance, any relevance is
4 outweighed by the danger of confusion and waste of time.
5 At this point, the court agrees. There is nothing to
6 prevent the defendants from thoroughly cross examining the
7 witnesses about the calls that are sought to be introduced,
8 about the authenticity of the recordings, and about the
9 reliability of the recordings and all of the processes and
10 equipment that were used to transcribe and produce those calls.
11 All of this will go to authentication of the calls sought to be
12 introduced at trial and may also be relevant to the issue of
13 reliability.
14 Even if the government sufficiently authenticates the
15 calls in accordance with the numerous methods of
16 authentication, such as those referred to by the government in
17 its memo and approved by the Court of Appeals, see United
18 States against Tropeano, 252 F.3d 653 (2d Cir. 2001), United
19 States against Campanelli, 257 F.Supp. 2d 678 (Southern
20 District of New York 2003), the issue of reliability will be
21 for the jury. The defendants, of course, are correct that they
22 will be able to offer expert testimony to attempt to undercut
23 the reliability of any of the recordings sought to be
24 introduced by the government.
25 It is also true that the direct of the witnesses may
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1 present a basis for exploring the MP3 format or the .WAV format
2 but as of this time the defendants have failed to make any
3 proffer as to the relevance of the production of the calls in
4 discovery and the formats other than the VOC, the .VOC format.
5 So the defendants say they don't know what will be opened up on
6 the direct examination, which is true, so at this point the
7 motion in limine is granted without prejudice to any proffers
8 that might be made after the direct of the witnesses.
9 MR. TIGAR: The court has ruled. I accept it, of
10 course.
11 Mr. Elliott, who is going to testify, is an FBI agent.
12 If it turns out on direct that he had anything to do with
13 giving us all these corrupted files, then of course that goes
14 to bias and prejudice. The fact that he could do a sloppy job
15 in a case where people stand to do all these many years in
16 prison, why would he do that, your Honor? Why wouldn't he be
17 as careful with our rights as he is with the rights of the
18 person that pays his money, pays his check? I want to make
19 sure, and I obviously don't lightly make a bias attack, your
20 Honor, because that is one of those things where if I fall on
21 my face it really looks bad.
22 THE COURT: And the representation is that the
23 production of the 85,000 bits were done in an automated way,
24 so --
25 MR. TIGAR: That is his version, your Honor. Am I
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1 required to accept it? Oh, I just made a mistake, the dog ate
2 my home work. The acquisition of the storage and the retention
3 of these files long before the indictment was returned was also
4 done in automated way. That is all I am asking, your Honor,
5 because I don't want to violate the court's order. I see a
6 bias issue here. And that is an area that your Honor's ruling
7 did not seem to address.
8 THE COURT: Well, you can raise it after the direct.
9 MS. BAKER: Your Honor, I would ask, and certainly we
10 can revisit this after the witness' direct, it is my
11 understanding that Mr. Elliott would testify that he did not
12 have any personal involvement in the retrieval and copying of
13 the files for disclosure in this case. But later in the trial
14 the government probably will call a witness who was involved.
15 So this issue is bound to present itself at some point.
16 I would ask the court to exercise its discretion to
17 control the cross examination by requiring Mr. Tigar, so as not
18 to eviscerate the ruling that your Honor has just made, to
19 require Mr. Tigar to ask -- and I would submit it's not
20 appropriate at all of Mr. Elliott but even of a later
21 witness -- were you involved in, however he wants to phrase it,
22 in the process, and, if so, was an effort made to do it
23 carefully or to retrieve all the files, or something along
24 those lines. Because if your Honor allows Mr. Tigar to try to
25 establish the point of bias, which we submit he will never
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1 establish with any witness, if he is permitted to try it by
2 getting up and asking the question isn't it true that in
3 pretrial discovery you produced 3000 corrupt .VOC files, that
4 defeats the purpose of the ruling that the court has just made
5 and would then require on redirect the entire explanation of
6 the discovery process and how it came about that files
7 allegedly, and we don't know what analysis Mr. Tigar had done
8 that leads him to conclude that it was any particular number of
9 files and so on, but once that door is opened on that type of a
10 cross examination question for which we submit there really
11 isn't a good-faith basis, then it brings the whole issue back
12 in to have to be explained on redirect to establish that in
13 fact the witness does not have any bias and whatever happened
14 in pretrial discovery happened inadvertently.
15 MR. TIGAR: Well, I certainly share the concern, your
16 Honor, that sustaining objections to one of my questions and
17 instructing the jury might not be adequate to cure the
18 prejudice. I think that is clear because those limiting
19 instructions don't always work.
20 Your Honor, I am not going to disobey the court's
21 order. I think that is enough. I hope that is enough to say
22 and I am certainly also not going to ask a dumb question.
23 Well, that is not true. I withdraw that assurance, but I will
24 try not to.
25 (Continued on next page)
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1 THE COURT: I know the consideration. I really know
2 the considerations on both sides with respect to any discussion
3 and some have been fruitful in the case, and if they can then
4 have expedited things, and some, I suspect, have not been. And
5 people have their own strategic positions when they go into
6 discussions.
7 You can at least have a discussion as to whether these
8 issues really need to be explored. It is plain, you know, that
9 some of this is going to be explored in terms of reliability.
10 The opening statements make that clear.
11 But with respect to authenticity of the records and
12 the scientific chain, it is not clear to me that anyone has an
13 interest in putting all of that before the jury, but you're
14 welcome to do that. You can judge each other's positions with
15 respect to that.
16 MR. TIGAR: May I make an application which then we
17 could discuss so that I could frame the issue?
18 Believing, as I do, that the originals from which the
19 trial DVDs are created are original writings within the rule
20 and that what is being offered if admissible at all is a
21 duplicate original, I move pursuant to Federal Rule of Criminal
22 Procedure 16(a)(1)(E)(2) for production of the original files
23 from which the DVD files that are sought to be introduced were
24 created. And I ask that this production be ordered forthwith
25 so that we can conduct the necessary comparison hopefully in
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1 time to avert the authenticity issue objection on Tuesday.
2 THE COURT: Government.
3 MS. BAKER: Your Honor, as I explained in the motion
4 in limine, the originals -- just to make sure that the record
5 is absolutely clear, because I don't want any allegation later
6 that everything wasn't perfectly clear -- when a call comes in,
7 it is recorded on the hard drive of the automatic recording
8 system. It is then automatically, within a very brief period
9 of time, hours or less, duplicated in exactly the same format
10 from the hard drive to the archiving medium used by the system,
11 which in the older system, the Lockheed Martin system, was
12 electro magnetic tape; in the later system, Ratheyon system,
13 was magneto optical disk.
14 The recording on the hard drive is overwritten within
15 a matter of hours to days by the system continuously being used
16 and intercepting new calls. So the duplicate original, which
17 exists to this day, is on the archiving medium which is either
18 the electromagnetic tape or the magneto optical disk.
19 With that clear, as I said in the motion in limine,
20 the original electromagnetic tapes and magneto optical disks
21 are classified and contain recordings not just from the
22 surveillances of the telephones at issue in this case, but from
23 surveillances of other telephones, other FISA surveillances
24 that were being conducted during the same period of time, and
25 for that reason the government is unable to produce the
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1 originals.
2 MR. TIGAR: I amend my motion. For purposes of the
3 motion only, I concede that the original acquisition now
4 erased, that it was a duplicate original of that on the archive
5 tape, that the government has described, that which now exists
6 is a duplicate original within the meaning of Federal Rule of
7 Evidence 1003.
8 I acknowledge the government's statement that there
9 are classified and for all that matters irrelevant materials on
10 those tapes because they contain a great deal of information.
11 I revise my motion and it is simply that someone copy so as to
12 create another generation of duplicate original from those
13 duplicate originals in the original file format for purposes of
14 analysis so that I can inquire under the Rule 1000 series.
15 That's my motion.
16 THE COURT: Isn't that duplicated on the trial DVD?
17 MS. BAKER: Yes and no. Here is why. Yes as to the
18 Ratheyon system, the later system, because there the original
19 on the hard drive, the duplicate original on the magneto
20 optical disk, and the duplicate original on the trial DVD, and
21 also the duplicate original that was on the discovery disk, all
22 are in that same .VOC form at used by the Ratheyon system. So
23 in the government's view all of those are duplicates in the
24 same format under the rules.
25 THE COURT: Any other copy would be the same as the
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1 copy on the trial DVD?
2 MS. BAKER: Correct. The no is as to the previous
3 system, the Lockheed Martin system, which saved to hard drive
4 and then to the electro magnetic tape in a proprietary format.
5 Because that system doesn't exist anymore, honestly, I don't
6 know as I stand here whether it is possible to even duplicate
7 those files in their original format, and the FBI doesn't use
8 them in their original format anymore, which is why they have
9 all been converted to the Ratheyon .VOC format.
10 THE COURT: First of all, it is a reasonable request,
11 so you should explore that request. It is a request that in
12 terms of discovery material which should have been made before
13 now. But by all means, check it out. And if it can be
14 produced, then produce; in the same way that it has been
15 produced from the second set, unless there is a problem and
16 then you can come back and tell me what the problem is, right?
17 MR. TIGAR: Your Honor, we did make the discovery
18 request before now. I just want it to be clear. I'm not going
19 to tax the Court's patience with it. To the extent that the
20 timing is important, Jane Tigar earlier on had a long series of
21 letters and correspondence about exactly this sort of issue, as
22 soon as the production began. So we have been diligent, your
23 Honor. We have narrowed what had been our previous request. I
24 didn't want the record to reflect an untimeliness finding.
25 MS. BAKER: Your Honor, the government is not making
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1 an allegation of untimeliness. I will say to the extent that
2 the defense intended anything it previously said as that
3 particular request, the government never understood it that
4 way. But it is fine. I am going to look into it. When we
5 leave this court this afternoon and I will advise Mr. Tigar
6 whether it is possible to provide Mr. Tigar with that request.
7 THE COURT: Okay.
8 Anything else on this?
9 I think I should review all of the Sattar material.
10 Maybe that's being too ambitious before I start ruling on
11 individual ones. Perhaps you will reach agreement. I did have
12 a question with respect to 2057, based on the government's
13 letter. I know I didn't get a defense response, but my
14 question is, before everyone gets involved in whether this is a
15 coconspirator in furtherance exception to the hearsay rule, the
16 first question would be whether if you stepped back and asked
17 yourself, is this really being admitted for the truth of what's
18 said.
19 Unlike some many coconspirator statements offered for
20 the truth of what's said, including cases referred to by the
21 government, those coconspirator statements are things like, he
22 is the boss, I can't do this unless he agrees. They are
23 plainly statements being offered for the truth that you have to
24 know such things as perception, memory, credibility. A
25 statement by Abdel Rahman, the gist of which is, sink their
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1 ships, the first question is whether that's being admitted for
2 the truth of what's being said as opposed to this is a
3 statement which is being admitted for the fact of the
4 statement.
5 The second question I have about 2057 is I fully
6 appreciate that there is -- that the government said with great
7 flourish that this was made after January 1996. As I read the
8 statement -- and I said this in court yesterday -- there is a
9 reference to a CNN header in the middle which is dated 1998.
10 And the substance of the statement, I believe, as I read it,
11 refers to such things as smells in the prison. And I had
12 thought that those issues came up a lot after 1996.
13 MR. BARKOW: Your Honor, to take the second point
14 first, what we say is that it was made after 1996, after
15 January 1996, but we can't date it precisely after that. So
16 the complaints about smells, for example, and the CNN reporting
17 that the statement was made -- there was a CNN reporting that
18 the statement was made, and that reporting occurred in 1998 --
19 suggests to us that it was made between January '96 and 1998.
20 But what we are saying is that it was made after
21 January 1996. We can't date it specifically after that point.
22 There is evidence in the case that CNN reported the
23 dissemination of the statement and that reporting was in 1998.
24 And so because of that, we think that it was made some time
25 between those two dates, but we can't date it precisely there.
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1 With respect to the Court's first point, we agree with
2 the Court's analysis that the significance of the statement is
3 more in the fact that it was made than the truth of the
4 assertion, sink their ships, for example, and so it is akin to
5 a threat in some ways and, therefore, perhaps is not -- does
6 not fit within the hearsay analysis and for the truth is not as
7 vital to us -- that sink your ships is not an assertion that we
8 are going to use for the truth. It is the fact that it was
9 made. And it was made, we believe, in furtherance of the
10 conspiracy to commit acts of violence to obtain Abdel Rahman's
11 release.
12 THE COURT: Aren't you mixing two things? And you can
13 think about it. You're mixing the fact that to admit a
14 statement for its truth as a coconspirator statement, not
15 hearsay, under the rule, the statement has to be made by a
16 coconspirator and in furtherance and during the conspiracy. So
17 in furtherance of the conspiracy is of which both the declarant
18 and the objecting defendant were members, in furtherance is
19 part of the test for why that statement could come in as a
20 coconspirator exception.
21 The fact that something happens in furtherance of the
22 conspiracy, or a conspiracy may have significance for different
23 subjects, the fact that we use the term "in furtherance of the
24 conspiracy" has meaning for purposes of agency under the
25 coconspirator exception, but it may have evidentiary
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1 significance for other reasons in the case. The fact that you
2 can say, look, this is in furtherance of a conspiracy may have
3 significance for certain issues in the case. It may or may not
4 qualify the statement as admissible as a coconspirator
5 statement against an individual defendant, depending upon the
6 individual conspiracy and whether that statement was in
7 furtherance of that conspiracy.
8 And if the statement is not being offered for the
9 truth, you don't go through the analysis of coconspirator in
10 furtherance issue. It may have relevance because it is
11 something in the same way as an act, which may have
12 significance to a set of facts in the case, but it doesn't help
13 the analysis simply to use in furtherance of without being
14 careful about which principle you're using it for.
15 MR. BARKOW: I don't disagree with the Court. And I
16 think I may not have been sufficiently careful in that. I was
17 speaking of statements in furtherance of the conspiracy so as
18 to establish that these statements, both 2057 and 2070, would
19 not be limited in their use to their effect on Sattar. And I
20 think the Court is more correct, that this is really more akin
21 to a verbal act and, therefore, an overt act in furtherance --
22 it is an overt act, an act in furtherance of the conspiracy
23 more so than a statement offered to prove the truth of the
24 matters asserted therein. Therefore, on that point, we agree
25 with the Court.
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1 THE COURT: I just raised this as an issue. Don't say
2 that you agree with me before I rule on issues. I raise it
3 simply because of the issues raised in your letter.
4 MR. BARKOW: I think it is appropriately viewed both
5 as an overt act, as a threat in furtherance of the conspiracy,
6 and I think that it is appropriately viewed as a statement
7 furthering it. But the primary importance of the statement is
8 in the fact that it was made. And this was an additional point
9 I wanted to raise, if I have not sufficiently so far, that it
10 was disseminated.
11 This case is, in large part, about the dissemination
12 of statements like this. And the evidence will show, both
13 because of a CNN reporting of this statement and also because
14 of a call that occurred in 2001 between Mr. Sattar and a
15 reporter, where the reporter asked Mr. Sattar about this
16 statement, the evidence will show that this statement was in
17 fact disseminated. And there is no evidence that we are aware
18 of -- and we don't anticipate evidence in the case -- that
19 anyone else had the 2070 tape and, therefore, when the
20 statement is disseminated, we think the evidence will show that
21 it was disseminated by Mr. Sattar.
22 Seeing that this is a case about a release and
23 dissemination of threatening statements in large part, we think
24 it is also relevant in large part. 2057 being found in
25 Mr. Sattar's possession to show ample reporting by CNN and a
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1 call by the reporter to show that the statement was
2 disseminated, it has relevance for various purposes as to the
3 conspiracies charged. And the primary focus of our arguments
4 is that it should not be limited in its use only against
5 Mr. Sattar.
6 Mr. Sattar had the tape, the 2070 tape. He had the
7 will, the Exhibit 2057. He had the report by CNN. And he
8 received a call from the reporter. And we think that these
9 facts tied together demonstrate that Mr. Sattar is the source
10 of dissemination. So the significance of the statement is both
11 in the fact that it was made and the fact that it was
12 disseminated. And the various factors that I have just
13 articulated show, we believe, that it was disseminated by
14 Mr. Sattar. I don't think I articulated that additional theory
15 in my previous statements to the Court.
16 THE COURT: Mr. Tigar.
17 MR. TIGAR: May I comment on that, your Honor?
18 THE COURT: Sure.
19 MR. TIGAR: It may well be that the Court could find
20 that the statement is not a statement as that term is defined
21 in Rule 801, or that it is "not offered for the truth." That
22 would not, we agree with government counsel, be the end of the
23 inquiry because a conspiracy is more than a concept about
24 hearsay. It is, in the word of Justice Jackson, a partnership
25 in criminal purposes. And, thus, with Pinkerton being the
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1 outermost expression of it, there is this agency theory that
2 attributed acts as well as declarations to the others.
3 However, the question then is, what conspiracy, with
4 what members, and at what time? The government goes so far as
5 to suggest in a footnote that there was some conspiracy to take
6 this man from the jail at some time.
7 Now, that's interesting because he was arrested in
8 1993. He began immediately to say that he wished he hadn't
9 been. So that should give a clue. And he is still in jail.
10 So some time between 1993 and when the Sattar search took
11 place. So if that helps in terms of timing.
12 Now, Mr. Fitzgerald said for the government that he
13 thought Ms. Stewart did an admirable job defending Sheikh Abdel
14 Rahman. He doesn't begin to disagree with her conduct, just to
15 give an example, until the SAMs get passed. It is very
16 important to our theory of defense to narrow the scope of our
17 disagreement with the United States. And if it is said in any
18 way by the introduction of evidence or otherwise that
19 Ms. Stewart is allegedly now a member of a conspiracy that
20 begins substantially before the SAMs are introduced into the
21 process, and if it is said that this then is in furtherance of
22 some such conspiracy, then Ms. Stewart is gravely prejudiced by
23 this evidence. We didn't get 404(b) notice of it. It is a
24 problem. And we can brief that further argued, but I wanted to
25 flag it as a problem.
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1 Then the other thing, your Honor, is that sink their
2 ships, blow their buildings, whatever, this is advocacy, of
3 course. And I think, your Honor, that there is a First
4 Amendment aspect to it and I know your Honor has rejected our
5 First Amendment-based arguments. You have rejected our
6 Brandenburg argument about, you know, Brandenburg v. Illinois.
7 THE COURT: I did reject the argument when it was
8 raised and it is the same sort of statement that the Court of
9 Appeals rejected as protected by the First Amendment in Rahman.
10 MR. TIGAR: Yes, your Honor, it is the same sort of
11 statement. But statements -- a statement, killed the pigs,
12 let's take a statement, or blow up a bridge, or whatever,
13 doesn't acquire First Amendment protection or lose First
14 Amendment protection by virtue of what it is, just as a
15 statement, let's overthrow the government doesn't walk around
16 carrying First Amendment protection or not. It is all
17 contextual.
18 And what's the context here? The context is that if I
19 should die in prison you should do that something. That's the
20 statement. There is no showing it was uttered under
21 circumstances likely to cause imminent lawless violence, unlike
22 the statements that were rejected by the Court of Appeals in
23 Rahman. So, therefore, despite whatever views your Honor has
24 to make my record, I would say that under Spock, which was
25 cited, just to acknowledge it, you can't determine
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1 Ms. Stewart's intent by what other people say.
2 But let me come back to this context. I learned in
3 law school the Latin phrase that means people who are alive do
4 not have heirs. My first day in tort someone said, if it were
5 not trying times, I would run you through and that was not an
6 assault. A will is something that tells people to do something
7 after somebody dies. And, therefore, contextually -- this is
8 not a statement from him, go now thou and kill somebody. This
9 is, if they kill me and I am sure they will, then you should.
10 For First Amendment purposes, your Honor, for conspiracy
11 purposes, that's different. And that is a characteristic that
12 this statement has that no other statement offered by the
13 government possesses. And it is an issue that we will explore
14 further, but we think it is there.
15 THE COURT: Well, I'll go through the Sattar
16 materials. You should, by all means, let me know both with
17 respect to timing and if you reach any agreements on any of
18 these.
19 MR. FALLICK: Your Honor, we are going to try to work
20 out with the government cocounsel an arrangement concerning the
21 newspaper articles that we discussed yesterday. Your Honor may
22 not have to go through all those now, but we are talking about
23 that.
24 MR. BARKOW: I was going to say that, your Honor, I
25 was looking for the numbers. Those are 2004 through 2007 and
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1 Mr. Fallick and I, I think, are going to talk about that early
2 next week.
3 THE COURT: You want me to hold off on reading the
4 others? I have lots to do, reading documents, but I don't want
5 to hold anyone up either. That's why I have these two
6 principles.
7 MR. BARKOW: I think, your Honor --
8 THE COURT: Think about it. You are not going to be
9 offering any disputed documents next week, yes?
10 MR. BARKOW: I don't think we need to. I don't think
11 we have that much open time next week. If we do get to a point
12 where we think we need -- we are running out of admitted
13 evidence, we will ask then.
14 THE COURT: Have a good weekend.
15 (Adjourned to Tuesday, July 6, 2004, at 9:30 a.m.)
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