7 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 18 of the proceeding and Day 9 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/
3222 477SSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 ------------------------------x 2 3 UNITED STATES OF AMERICA, 3 4 v. S1 02 Cr. 395 (JGK) 4 5 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 6 and MOHAMMED YOUSRY, 6 7 Defendants. 7 8 ------------------------------x 8 9 9 New York, N.Y. 10 July 7, 2004 10 9:30 a.m. 11 11 Before: 12 12 HON. JOHN G. KOELTL 13 13 District Judge 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3223 477SSAT1 1 APPEARANCES 1 2 DAVID N. KELLEY 2 United States Attorney for the 3 Southern District of New York 3 ROBIN BAKER 4 CHRISTOPHER MORVILLO 4 ANTHONY BARKOW 5 ANDREW DEMBER 5 Assistant United States Attorneys 6 6 KENNETH A. PAUL 7 BARRY M. FALLICK 7 Attorneys for Defendant Sattar 8 8 MICHAEL TIGAR 9 JILL R. SHELLOW-LAVINE 9 Attorneys for Defendant Stewart 10 10 DAVID STERN 11 DAVID A. RUHNKE 11 Attorneys for Defendant Yousry 12 12 13 14 15 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3224 477SSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Good morning all. Please be seated. 4 Are we ready to call in the jury? 5 MR. DEMBER: Yes, we are, your Honor. Shall I call 6 the first witness and place him on the stand? 7 THE COURT: Yes, please. 8 MR. RUHNKE: Before the jury comes in, we received Mr. 9 Barkow's letter. I got it the first thing this morning. I 10 would like an opportunity to reply to it orally or in writing. 11 THE COURT: Absolutely. 12 Which would you prefer? 13 MR. RUHNKE: Orally is fine, your Honor. 14 THE COURT: Okay. 15 MR. FALLICK: May I speak to Mr. Barkow before we 16 bring the jury in for a moment? 17 THE COURT: Absolutely. 18 All right. Mr. Ruhnke stepped out? 19 MR. STERN: He did, Judge. He had to get something. 20 He will be back in a moment. 21 THE COURT: I will wait. 22 MR. BARKOW: Your Honor, while we are waiting for Mr. 23 Ruhnke, can I confer again with Mr. Fallick? 24 THE COURT: Yes. 25 All right, are we ready for the jury? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3225 477SSAT1 1 MR. DEMBER: Yes, your Honor. 2 THE COURT: Okay. 3 Let's bring in the jury. 4 (In open court-jury present) 5 THE COURT: Please be seated all. 6 Good morning, ladies and gentlemen. 7 Good to see you all. 8 We are doing a little better on time, so I am glad 9 that we didn't have to keep you waiting too long this morning 10 and, as I say, it's good to see you. 11 All right, the government may call its next witness. 12 MR. DEMBER: Your Honor, the government calls Patrick 13 Killeen. 14 PATRICK KILLEEN, 15 called as a witness by the Government, 16 having been duly sworn, testified as follows: 17 DIRECT EXAMINATION 18 BY MR. DEMBER: 19 Q. Mr. Killeen, let me just remind to you speak in a loud, 20 clear voice and speak into the microphone in front of you so 21 that everyone can hear your testimony. 22 Mr. Killeen, by whom are you employed? 23 A. I am employed by North Hamptonshire Police. 24 Q. Where is North Hamptonshire? 25 A. It's in the midland area of England. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3226 477SSAT1 Killeen - direct 1 Q. That is in Great Britain? 2 A. In Great Britain, yes. 3 Q. What is your position with the North Hamptonshire Police 4 Department? 5 A. I am a detective constable. 6 Q. And how long have you held that position? 7 A. For 24 years. 8 Q. By the way, where is North Hamptonshire in relationship to 9 London, England? 10 A. It's about 70 miles. 11 Q. 70 miles from London? 12 A. Yes. 13 Q. And -- 14 THE COURT: Please speak into the microphone so 15 everyone can hear you. 16 THE WITNESS: I am sorry. 17 Q. And how long have you held the position of detective 18 constable? 19 A. Approximately 20 years. 20 Q. Do you have occasion to work with New Scotland Yard? 21 A. Yes, I do. I am actually attached to the special unit, 22 operations unit, in Scotland Yard. 23 Q. And what do you actually do as a member of that special 24 operations unit? 25 A. I am a forensically trained scene manager and exhibits SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3227 477SSAT1 Killeen - direct 1 officer. 2 Q. And what do you do? What do you actually do in that 3 position? 4 A. During the course of searches I carry out duties to obtain 5 and maintain exhibits. 6 Q. Is that from searches that you have conducted? 7 A. That is correct, sir. 8 Q. And how long have you held that position? 9 A. For the last 8 years. 10 Q. Now, let me direct your attention back to October 23, 2001. 11 Did you participate in the search of a premises on that day? 12 A. I did, sir. 13 Q. And what was the location of the search that you conducted? 14 A. It's 99A Bell Street in Paddington, London. 15 Q. And what part of London is that? 16 A. Well, the area is called Paddington. It's approximately 5 17 miles from the center of London. 18 Q. And what type of premises was at that location? 19 A. It's a book shop. 20 Q. And do you know what kind of book shop it was? 21 A. Yes, it's predominantly Islamic Arabic books. 22 Q. Did you go to that location on that day? 23 A. I did, sir. 24 Q. And had you ever been to that location before that day? 25 A. No, sir. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3228 477SSAT1 Killeen - direct 1 Q. Do you recall if there was a name on the bookstore itself? 2 A. From memory I believe it said something like Islamic Books, 3 but I am not certain of that. 4 Q. Now, before you went to that location or actually entered 5 that location, did you have a court-authorized search warrant 6 to actually enter those premises? 7 A. We did, sir. 8 Q. And did that search warrant call for you to seize certain 9 items? 10 A. Yes, sir. 11 Q. And in general terms, what did the search warrant allow you 12 to seize at that location? 13 A. Computers, papers, and any other material pertaining to 14 that warrant. 15 Q. Did you actually obtain the search warrant yourself? 16 A. No, sir. 17 Q. Did another one of the officers or detectives do that? 18 A. Yes, they did. 19 Q. Now, how did you gain entry on that particular day to these 20 premises? 21 A. Another search was being carried out at another address and 22 keys that were found at that other address to do with the shop 23 were delivered to me and I gained entry using those keys. 24 Q. And when you entered the premises on that day, was there 25 anyone present? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3229 477SSAT1 Killeen - direct 1 A. No, it was empty. 2 Q. And approximately what time of day did you enter 99A Bell 3 Street? 4 A. Approximately 7:15 a.m. 5 Q. Could you describe for us briefly the premises as you 6 observed them, as you entered them that day? 7 A. Yes, it's a very narrow shop on one level. To the left as 8 you enter the shop was a desk with papers strewn all about and 9 computer equipment. Immediately in front of the desk was piles 10 of books and behind the desk were rows of bookshelves. To the 11 right of the shop were other shelving units filled with books 12 and other items. 13 To the middle aisle of the shop were racks of clothing 14 and at the end of the shop was a curtain area and as you go 15 into the curtain area there was a flight of approximately 7 16 steps down to a lower area and then through that smaller area 17 through to the back of the shop which was a toilet area for the 18 staff. 19 Q. By the way, Detective Constable Killeen, other than 20 conducting a search or other than searching those premises, did 21 you have any other involvement in this case here? 22 A. There was one other premises I searched at another date but 23 not pertaining to that particular individual. 24 MR. DEMBER: Your Honor, may I approach the witness? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3230 477SSAT1 Killeen - direct 1 Q. Detective Constable Killeen, I have just placed before you 2 a document which has been marked for identification as 3 Government Exhibit 2702. Do you recognize that document? 4 A. Yes, sir. 5 Q. And how do you recognize it? 6 A. It's the copy of a rough sketch plan that I made as I 7 entered the shop. 8 Q. You prepared that sketch? 9 A. Yes, I did, sir. 10 Q. Is that sketch to scale? 11 A. No, sir. 12 Q. But does it fairly and accurately depict the way the shop 13 was laid out and appeared when you entered it on that day? 14 A. It does, sir, yes. 15 MR. DEMBER: Your Honor, the government offers into 16 evidence Government Exhibit 2702. 17 THE COURT: All right. No objection. Government 18 Exhibit 2702 received in evidence. 19 (Government's Exhibit 2702 received in evidence) 20 Q. By the way, there is a second page to the exhibit as well, 21 is that correct? 22 A. That is correct, sir. 23 Q. What is the on the second page? 24 A. It's a rough sketch of the desk area I mentioned detailing 25 the drawers and how I marked the drawers. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3231 477SSAT1 Killeen - direct 1 Q. And that is a desk that was inside the store itself? 2 A. It is, sir. 3 MR. DEMBER: Your Honor, may I display 2702 to the 4 jury? 5 THE COURT: Yes. 6 Q. Detective Constable Killeen, would you just take us through 7 the diagram starting at the entrance? I think do you have it 8 in front of you as well? 9 A. I do. 10 Q. Why don't you point where the entrance was to the store. 11 A. Just here is the shop doorway. It's a single point of 12 entry to the shop. Immediately as you go into the shop the 13 desk is just here. 14 Q. Is that the desk that appears on the second page of this 15 exhibit? 16 A. It is, sir. 17 Q. Continue please. 18 A. Immediately before the desk was piles of various books and 19 at the back of the desk were rows of book shelving, as is on 20 the opposite side of the room there. There were other rows of 21 bookshelves in the middle of the area and behind those was the 22 clothing rack. Just here is the curtain area leading down into 23 the steps, and then the toilet area at the very rear of the 24 premises. By the side of each step are storage areas where 25 packages were stored. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3232 477SSAT1 Killeen - direct 1 Q. Now, Detective Constable Killeen, did you conduct the 2 search by yourself? 3 A. No, sir. 4 Q. Who assisted you? 5 A. There was a detective inspector who because of our law 6 system we have to have a detective inspector to execute that 7 warrant. 8 Q. Is he a higher ranking officer than yourself? 9 A. Yes, sir. 10 Q. Go ahead. 11 A. Then I had two search officers who were under my control 12 and also an interpreter for any foreign-language material that 13 we found. 14 Q. And what language did the interpreter speak? 15 A. Arabic. 16 Q. Now, would you describe for us how you actually conducted 17 your search that day? 18 A. Initially I went into the shop on my own and carried out 19 what we call a safety check, which is basically just to make 20 sure that there isn't any materials in there that could harm 21 either myself or my colleagues or the general public. 22 Once that was carried out, I carried out or prepared 23 the sketch that you see in front of you and zoned off the areas 24 that were to be searched so that we carry out a methodical 25 search of the whole of the premises and don't leave anything or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3233 477SSAT1 Killeen - direct 1 miss anything. 2 Once that has been prepared, I then called forward the 3 other two searchers who assisted me in the search of the 4 premises along with the interpreter who, as I say, interpreted 5 any foreign-language material we had. 6 Q. Did you actually seize any items from the search? 7 A. I did, sir, yes. 8 Q. Detective Constable, would you press the right side of the 9 screen there and it will erase those arrows. 10 Thank you. 11 MR. DEMBER: Your Honor, may I approach the witness 12 again? 13 THE COURT: Yes. 14 Q. Detective Constable, I have just handed you up four 15 documents which have been marked for identification as 16 Government Exhibits 2703, 2704, 2705 and 2706. 17 Let's start with the first document which is marked 18 2703. 19 First of all, do you recognize that first document? 20 A. I do, sir. 21 Q. How do you recognize it? 22 A. This is the document that on the front of each of these 23 exhibits we have an exhibit reference or front sheet, as we 24 call it, which details the details of the exhibit and also 25 where it was found. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3234 477SSAT1 Killeen - direct 1 Q. And who prepared that document? 2 A. I did, sir. 3 Q. And do you recognize that document that you prepared? 4 A. Yes, sir. 5 Q. And do you recognize the document behind the cover sheet? 6 A. Yes, sir. It's a photocopy of the actual original exhibit 7 that we took. 8 Q. And was that a document that was seized during your search 9 of this bookstore? 10 A. It is, sir, yes. 11 MR. DEMBER: Your Honor, the government offers into 12 evidence Exhibit 2703. 13 THE COURT: All right, no objection. Government 14 Exhibit 2703 received in evidence. 15 (Government's Exhibit 2703 received in evidence) 16 MR. DEMBER: May I display it to the jury, your Honor? 17 THE COURT: Yes. 18 Q. Detective Constable, I am going to place the front page -- 19 that is the cover page that you prepared, is that correct? 20 A. Yes, that is correct, sir. 21 Q. And it indicates where you found this particular document? 22 A. Yes, sir. 23 Q. Where did you find this particular document? 24 A. It was in drawer B of zone B of the desk. 25 Q. That is the desk in the front portion of the store? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3235 477SSAT1 Killeen - direct 1 A. That is, sir. 2 Q. I am going to turn to the second page of the exhibit. Can 3 you tell us, by the way, what the second and third pages of 4 this exhibit are actually? 5 A. It's a reminder to pay your bill for a particular 6 telephone. 7 Q. That is something from a telephone company? 8 A. Yes, it's British Telecom, the largest telephone company in 9 Britain. 10 Q. And from this page that is currently on the screen, can you 11 tell who it's addressed to? 12 A. Yes, it's addressed to a Mr. Y al-Sirri. 13 Q. Is that an address? 14 A. Yes, 102 Edinburgh House, Maidavale, London. 15 Q. That is not the address you were searching, is that 16 correct? 17 A. No, sir. 18 Q. And does it indicate on this front page a telephone number 19 that pertains to the particular customer? 20 A. Yes, sir, just here is the reminder and the telephone 21 number is recorded as 020, which is the area code, 76246868. 22 Q. And if I move down the page, what is that amount of money 23 there? 24 A. 221 pounds 92. That is the amount that is outstanding. 25 THE COURT: What currency is that in? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3236 477SSAT1 Killeen - direct 1 THE WITNESS: Pounds. 2 Q. That is British currency? 3 A. It is. 4 Q. Let me turn to the next exhibit. Why don't you put that 5 one aside. 6 Let me ask you to look at what has been marked for 7 identification as Exhibit 2704. Do you have that in front of 8 you? 9 A. I do, sir. 10 Q. Again, do you recognize this particular exhibit? 11 A. Yes, sir. 12 Q. And how do you recognize it? 13 A. I produced the front sheet and also the photocopy of the 14 pages. 15 Q. Is this another document that you seized from the 16 bookstore? 17 A. It is, sir, yes. 18 Q. And -- 19 MR. DEMBER: Your Honor, the government offers into 20 evidence Exhibit 2704. 21 THE COURT: All right, no objection. Government 22 Exhibit 2704 received in evidence. 23 (Government's Exhibit Exhibit 2704 received in 24 evidence) 25 MR. DEMBER: May I display it to the jury, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3237 477SSAT1 Killeen - direct 1 THE COURT: Yes. 2 Q. Detective Constable Killeen, I am showing you again the 3 first page of this exhibit, is that correct? 4 A. That is correct, sir. 5 Q. And that is a document you yourself prepared? 6 A. It is, sir, yes. 7 Q. Where was this particular document or the document behind 8 the cover sheet actually seized from? 9 A. It was actually -- there was a large amount of papers 10 strewn behind the desk in zone 1 at the shop and it was found 11 amongst those papers. 12 Q. That is the desk towards the front of the store? 13 A. Yes, that is correct, sir. 14 Q. Let me turn the page to the second page of this exhibit. 15 Can you tell the jury what kind of a document is this exhibit? 16 A. It's an information sheet to the subscriber of the 17 telephone telling them that on that particular date that they 18 were going to finish providing that service. 19 Q. And that is a document from a phone company? 20 A. It is, sir. 21 Q. What is the company actually? 22 A. It's World Online. It's an Internet service provider. 23 Q. And on this second page of the exhibit, does there appear 24 to be the name of a subscriber and address? 25 A. Yes, sir, it's Mr. Yasser al-Sirri, 102 Edinburgh House, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3238 477SSAT1 Killeen - direct 1 155 Maidavale, London. 2 Q. By the way, is there a date on the first page of this 3 document? 4 A. Yes, it's dated Tuesday, the 5th of June, 2001. 5 Q. Constable Killeen, would you turn to the fifth page of the 6 actual correspondence itself. I am going to put it up on the 7 screen here and you can look at the screen if you like. 8 Is there on that page a telephone number listed? 9 A. Yes, sir. 10 Q. For the subscriber? 11 A. Yes, sir, towards the top of the page it's marked a phone 12 number and the number recorded is 020732889 -- I am sorry, 988. 13 Q. And I am going to turn to the last page of the exhibit. 14 Again, on this particular document does there appear the name 15 of Mr. Al-Sirri? 16 A. Yes, sir, towards the top of the page. 17 Q. Is that the same address you read to us before? 18 A. Yes, sir. 19 Q. Thank you. 20 Let me ask you to turn to what has been marked as 21 Government Exhibit for identification as 2705. Do you have 22 that in front of you? 23 A. I do, sir, yes. 24 Q. Do you recognize this exhibit? 25 A. Yes, sir. It is the exhibit I took. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3239 477SSAT1 Killeen - direct 1 Q. Is this also a document that you seized from 99A Bell 2 Street? 3 A. It is, sir, yes, sir. 4 Q. And does the first page of this exhibit appear to be a 5 cover page that you prepared? 6 A. It is, sir, yes. 7 MR. DEMBER: The government offers Exhibit 2705 in 8 evidence. 9 THE COURT: All right, no objection, Government 10 Exhibit 2705 received in evidence. 11 (Government's Exhibit 2705 received in evidence) 12 MR. DEMBER: May I display it to the jury, your Honor? 13 THE COURT: Yes. 14 Q. Detective constable, first of all, as I am putting it up 15 here on the screen, can you tell us what the underlying 16 document of this exhibit is? 17 A. Yes, it's a telephone bill from the company One.Tel to 18 Mr. Yasser al-Sirri. 19 Q. And, again, this is your cover sheet, correct? 20 A. I am sorry? 21 Q. This is the cover sheet you prepared? 22 A. Yes, it is, sir. 23 Q. Can you tell us where you found this particular document 24 during your search? 25 A. Again, it was behind the desk area at the front of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3240 477SSAT1 Killeen - direct 1 shop. 2 Q. I am going to turn to what is the next page of this 3 exhibit. Towards the top of the page does it indicate an 4 address for the subscriber? 5 A. Yes, sir, it does. It's not very clear because of the 6 print. 7 Q. Can you read it for us? 8 A. Yes, it's 114A Cromwell Road, London, SW7, 4TP. 9 Q. Is there a telephone number for the subscriber listed on 10 the document? 11 A. Yes, the telephone number is 0273319777. 12 Q. And is there a fax number also listed? 13 A. Yes, it's 02073319972. 14 Q. And also on that top portion of this particular page does 15 it indicate the name of the subscriber? 16 A. Yes, the account name is Mr. Yasser al-Sirri. 17 Q. As you turn through the various pages of this exhibit, does 18 it indicate where calls were made to from this particular phone 19 number? 20 A. It does, sir, yes. 21 Q. And just tell us what are some of the places that calls 22 were made to? 23 A. Egypt, Yemen, USA, Spain, Austria, Greece. 24 Q. Let me ask you to turn to -- including the cover page -- 25 the the third page of the exhibit and let me display it for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3241 477SSAT1 Killeen - direct 1 jury. 2 Do you have that in front of you? 3 A. Yes, sir. 4 Q. I am going to point to three calls that apparently were 5 made to the United States of America. Do you see where I am 6 pointing with my pen? 7 A. Yes, sir. 8 Q. Are those all to the same number? 9 A. They are, yes. 10 Q. Can you read the telephone number called that I am pointing 11 to? 12 A. Yes, it's 0017184423513. 13 Q. And do you see that number anywhere else besides those 14 three calls that are marked there? 15 A. Yes, further down the page there was another two calls made 16 and, again, further again another one call made, and again 17 right towards the end of the page. 18 Q. Let me direct you for a second. Let's go back to those 19 three calls in a row that we first identified. 20 A. Yes, sir. 21 Q. Can you tell from the exhibit the date those calls were 22 made to that number? 23 A. Yes, in the second column the date and the time are 24 recorded and also the duration of the calls. 25 Q. What are those dates? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3242 477SSAT1 Killeen - direct 1 A. Those dates are all on the 10th of January, 2001. And the 2 calls are recorded at 18:13 hours, 20:38 hours and 23:18 hours. 3 They are all obviously British time. 4 Q. In England when you write the date, typically in the United 5 States you write the month first or the number for the month 6 first, the date, and then the year. Is that the way it's done 7 in England? 8 A. No, we always record the date, then month, and then year. 9 THE COURT: You said the date -- 10 THE WITNESS: The date of the month, sir. 11 Q. Detective Constable Killeen, let me just ask you to turn to 12 the very last page of this exhibit and I will put it before 13 you. 14 Again, do you see the name Yasser al-Sirri at that 15 Edinburgh House address? 16 A. Yes, sir. 17 Q. By the way, on the top right-hand portion of each of the 18 pages that are the bill from the company, there is an 19 indication page, for example, as I am pointing, page 1 to 6, is 20 that correct? 21 A. That is correct, sir. 22 Q. As you look through the exhibit, is there apparently a page 23 missing? 24 A. Yes, I believe page 2 is missing. 25 Q. Did you seize page 2 of 6 of this particular phone bill? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3243 477SSAT1 Killeen - direct 1 A. No, sir. It was missing when I found the other pages. 2 Q. So this exhibit contains all of the pages from this 3 particular seizure? 4 A. That is correct, sir. 5 Q. Finally, let me ask you to turn to the document which has 6 been marked for identification as Government Exhibit 2706. 7 Again, do you recognize that exhibit? 8 A. I do, sir, yes. 9 Q. Is this another document that you seized during your search 10 of 99A Bell Street? 11 A. It is, sir, yes. 12 MR. DEMBER: Your Honor, the government offers Exhibit 13 2706 into evidence. 14 THE COURT: All right. No objection, Government 15 Exhibit 2706 received in evidence. 16 (Government's Exhibit 2706 received in evidence) 17 Q. Detective Constable, what is the exhibit itself? 18 A. It's a paying-in slip for a bank, Barclays Bank, which is 19 one of the major banks in Britain. 20 Q. When you say it's a paying-in slip, is that something that 21 we call a deposit slip here? 22 A. That is correct. 23 Q. When you deposit cash or a check into an account? 24 A. That is correct. 25 Q. Where did you find this particular item? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3244 477SSAT1 Killeen - direct 1 A. It was in the middle drawer. I noted it as drawer B in the 2 desk at the front of the shop. 3 Q. Let me turn to the second page of this exhibit. 4 Does there appear to be a name on this deposit slip? 5 A. Yes. 6 Q. An individual? 7 A. Yes, just here. 8 Q. What is that name? 9 A. Mr. Y al-Sirri. 10 MR. DEMBER: Your Honor, may I approach the witness 11 again? 12 THE COURT: Yes. 13 Q. Detective Constable, I have just handed you up a book that 14 has been marked for identification only as Government Exhibit 15 2700. Without removing it from that envelope, would you look 16 at the interior and look at the book itself? 17 A. Yes, sir. 18 Q. Do you recognize that book? 19 A. Yes, sir, I do, sir. 20 Q. And did you see any copies of that particular book during 21 the course of your search at 99A Bell Street? 22 A. Yes, sir, there was a large number of that type of book or 23 that book in the shop. 24 Q. And where did you see the copies of the book that you just 25 saw in the envelope? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3245 477SSAT1 Killeen - direct 1 A. There was a large number of them on display immediately in 2 front of the desk at the front of the shop. 3 Q. Let me just, if I may, put back onto the screen the diagram 4 which is Exhibit 2702. Why don't you point out where you 5 searched some of these books? 6 A. These large number of books immediately in front of the 7 desk area at the front of the shop. 8 Q. Did you see any of those books anywhere else? 9 A. Yes, there was a large quantity of packages in white 10 plastic here and here. 11 Q. Did you open up any of those packages? 12 A. I did, sir, yes. 13 Q. What did you see when you opened those packages? 14 A. I saw copies of that book. 15 Q. Did you open up all the packages? 16 A. No, just the one sample package. 17 Q. Did all the packages look similar? 18 A. They were all marked exactly the same, yes, sir. 19 Q. By the way, Detective Constable, how long did it take you 20 to actually conduct the search of this book shop? 21 A. It was searched over the course of 3 days. 22 Q. And were you present inside these premises for 3 entire 23 days? 24 A. No, sir. At the end of each day searching I locked the 25 doors, made it secure, and then they were held under guard of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3246 477SSAT1 Killeen - direct 1 police officer throughout the night until I took over 2 possession of the premises again in the morning. 3 Q. And did the search warrant authorize you to be there for 4 the number of days that you were there? 5 A. Yes, it did, sir. 6 MR. DEMBER: May I have a moment, your Honor? 7 THE COURT: Yes. 8 Q. Detective Constable Killeen, can you estimate for us 9 approximately how many copies of that book, which is marked for 10 identification as 2700, you saw in the shop during your search? 11 A. Yes, sir. Towards the end of the search I calculated 12 roughly the number of books by totaling the number of packages 13 I saw at the end of the shop, because each pack contained 12 14 books, and also estimated the number directly in front of the 15 desk. 16 Q. And what was your estimated total? 17 A. 1936. 18 Q. 1936? 19 A. Yes, sir. 20 MR. DEMBER: Thank you. 21 I have no further questions at this time, your Honor. 22 THE COURT: All right. 23 MR. RUHNKE: No cross, your Honor. 24 THE COURT: No further questions. 25 The witness is excused. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3247 477SSAT1 1 You may step down. 2 (Witness excused) 3 THE COURT: All right. 4 MR. DEMBER: Your Honor, we would now request to be 5 permitted to read from the remaining exhibits that were 6 introduced through the stipulation, which was Government 7 Exhibit 213. 8 Before we do that, your Honor, may I read the 9 pertinent sections from the stipulation to remind the jury what 10 those exhibits are? 11 THE COURT: Yes. 12 MR. DEMBER: Thank you. 13 The parties hereby stipulate and agree that the audio 14 and videotapes marked as Government Exhibits 202, 203, 207, 210 15 and 211 are tapes containing either sermons and speeches 16 delivered by Omar Abdel Rahman or intercepted telephone 17 conversations between Abdel Rahman and other persons. Each of 18 these tapes was received in evidence at Abdel Rahman's trial in 19 1995 and Lynne Stewart was present at the time each was 20 received in evidence. 21 Government Exhibits 202 and 203 were seized pursuant 22 to a court-authorized search warrant at the residence of Nabil 23 el-Masry. 24 Government Exhibit 211 was obtained from an individual 25 who testified at Abdel Rahman's 1995 trial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3248 477SSAT1 1 Government Exhibits 207 through 210 were intercepted 2 telephone conversations between Abdel Rahman and other persons 3 obtained pursuant to a court-authorized wiretap. 4 The transcripts marked as Government Exhibits 202T, 5 203T, 207T, 210T and 211T are true and accurate translations 6 from Arabic into English of the tapes marked as Government 7 Exhibits 202, 203, 207, 210 and 211 respectively. 8 Government Exhibits 202T, 203T, 207T, 210T and 211T 9 were prepared by qualified expert Arabic-to-English translators 10 employed by the Federal Bureau of Investigation. Each of these 11 transcripts was received in evidence at Abdel Rahman's trial in 12 1995 and Lynne Stewart was present at the time each was 13 received in evidence. 14 All voice attributions on Government Exhibits 202T, 15 203T, 207T, 210T, and 211T -- that is, all identifications on 16 the transcripts of who is speaking at any particular time -- 17 truly and accurately identify the speakers on the corresponding 18 tapes. 19 After Government Exhibits 202T, 203T, 207T, 210T and 20 211T were admitted into evidence during the Abdel Rahman's 21 trial, they were read aloud to the jury in that case. 22 Defendant Lynne Stewart was present during the reading of each 23 of these transcripts. 24 Your Honor, at this time Mr. Barkow is going to read, 25 with your permission of course, Government Exhibit 202T. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3249 477SSAT1 1 THE COURT: All right. 2 MS. BAKER: Your Honor, may we also display Government 3 Exhibit 202T on the screen for the jury? 4 THE COURT: Yes. 5 MR. BARKOW: May I proceed, your Honor? 6 THE COURT: Yes. 7 Before you do that, ladies and gentlemen, I just 8 remind you that when you obviously hear -- and I have explained 9 this to you before -- that something is displayed on the 10 screen, what is being referred to are the screens in front of 11 you and the big screen, and when a witness is on the stand the 12 witness has the same screen as do the parties and counsel. 13 We also have these additional screens which you have 14 sometimes seen me using, which is the transcript which we are 15 keeping, which the court reporter keeps, which is different 16 from what appears on these screens. The transcript is not 17 shown to the jury. It doesn't appear on your screens except as 18 I have told you when I gave you the instructions that said you 19 can take notes if you wish and gave you the instructions about 20 notes. We are keeping a transcript and if in the course of 21 deliberations you wish to review the transcript you would have 22 to write to ask to review the transcript. 23 Okay. You may proceed. 24 MR. BARKOW: Thank you, your Honor. 25 (At this point, Government Exhibit 202T in evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3250 477SSAT1 1 was read to the jury by Mr. Barkow) 2 (Continued on next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3251 477LSAT2 1 (In open court) 2 (At this point, Government Exhibit 202T was read 3 into the record by Mr. Barkow) 4 MR. MORVILLO: With the Court's permission, we're 5 going to a long speech by Rahman. 6 THE COURT: We'll take our mid morning break, about 10 7 minutes. Ladies and gentlemen, please remember my continuing 8 instructions not to talk about the case; keep an open mind. 9 All rise, please. 10 Will you follow Mr. Fletcher, please? 11 (Jury exits the courtroom) 12 THE COURT: All right, I'll see you shortly. 13 (Morning recess) 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3252 477LSAT2 1 (In open court; jury not present) 2 THE COURT: Could I talk to the lawyers? 3 (At the sidebar) 4 THE COURT: Two things: First, Mr. Fletcher advises 5 me that Juror 17 is having a health problem with her teeth. 6 She had dental work and there may be other health issues, and 7 so I really have to talk to the juror about that. And I would 8 be inclined to do it after the lunch hour in the same way that 9 I've done it before, and any of the parties or lawyers are 10 welcome to be there. I'm told it's the juror who sits in seat 11 Number 17. 12 The second issue is, there's someone in the audience 13 with a t-shirt and has a sign on the rear of her jeans that 14 says, "Say no to war". I look at the t-shirt, and if I were 15 the jury, I can't read anything on the t-shirt, I have no idea 16 what the t-shirt says. The individual is setting several rows 17 back on the right-hand side as I face the gallery. Unless the 18 parties feel that I should do something, my inclination is not 19 to do anything. I can't see that it's something that would 20 affect the jury in any way. And I frankly can't read anything 21 that's on the t-shirt from where I sit. 22 But to the parties have any other feelings? 23 MR. PAUL: I don't think that it's necessary to do 24 anything, Judge. 25 THE COURT: Okay, fine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3253 477LSAT2 1 MR. TIGAR: Thank you. 2 (In open court; jury not present) 3 THE COURT: All right. The jury will now enter the 4 courtroom. Please be seated. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3254 477LSAT2 1 (In open court; jury present) 2 THE COURT: Please be seated, all. 3 MR. MORVILLO: At this time, the government would 4 request to read Government Exhibit 211T. 5 THE COURT: All right. 6 MR. MORVILLO: Government Exhibit 211T, which was 7 Government Exhibit 801-D in the underlying case. 8 (At this point, Government Exhibit 211T was read 9 into the record by Mr. Morvillo) 10 THE COURT: All right. Ladies and gentlemen, it's 11 just about time for lunch, so we'll break for lunch until 2:00 12 o'clock. Please remember my continuing instruction: Not to 13 talk about the case; keep an open mind. 14 All rise, please. Please follow Mr. Fletcher to the 15 jury room. 16 (Jury exits the courtroom) 17 THE COURT: Please be back at quarter of 2:00. Have a 18 good lunch. 19 (Luncheon recess) 20 (Continued on next page, which commences sealed 21 excerpt, Pages 3255 - 3260) 22 o 0 o 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3261 477LSAT2 1 (In the robing room) 2 (Counsel present: Ms. Shellow-Lavine and Ms. Baker) 3 THE COURT: You had mentioned, Ms. Baker, something 4 about scheduling? 5 MS. BAKER: I need to make an application to the 6 Court, and I do this reluctantly, and having tried everything 7 we could to avoid it because I'm mindful of the time of the 8 jurors and of the Court and of all counsel and the defendants 9 themselves, but unfortunately, due to the confluence of a 10 number of logistical factors, the primary one of which is what 11 I told the Court yesterday or the day before about the one 12 essential government witness being on his honeymoon until this 13 weekend. 14 The government needs to request an adjournment of a 15 day or part of a day for tomorrow. We simply cannot get 16 together enough witnesses and evidence to present to the jury 17 that could fill more than the morning tomorrow, and probably 18 not even the entire morning. We are prepared to present when 19 we can tomorrow morning, if your Honor wished to bring the jury 20 in for that portion of a day. But, as I say, we don't have 21 more than the morning and perhaps less. So I need to make the 22 application that we adjourn until Monday. 23 I make it now -- I'm happy to repeat it in the 24 courtroom if your Honor wishes -- but I make it now simply to 25 say, in light of the concerns just raised by this juror, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3262 477LSAT2 1 perhaps if you were to afford the juror access to a telephone 2 now, she might be able to reach her doctor or her dentist and 3 see if she could be seen by either or both of them tomorrow and 4 then both concerns could be addressed perhaps at the same time. 5 THE COURT: I don't understand. I thought that what 6 remains of the evidence from the stipulation, together with the 7 undisputed evidence from the Sattar search, which was about -- 8 and the documents that I already ruled on, would have taken you 9 well into tomorrow. 10 MS. BAKER: We anticipated that they would when we did 11 our calculations yesterday. Basically, every time we leave the 12 courtroom we reassess and recalculate. And having seen the 13 amount of time taken this morning by the reading of the two 14 speeches And assessing the remaining documents in the 200 15 exhibit series from the Abdel Rahman trial and the Sattar 16 search exhibits that have been admitted so far, and the couple 17 of witnesses who are available to us, and the anticipated 18 duration of their testimony, we have unfortunately come to the 19 conclusion that I stated a minute ago, which is that we might 20 fill tomorrow morning, but we might not. And we wouldn't be 21 able to fill beyond tomorrow morning. Which is the reason why 22 I reluctantly make this application to the Court. 23 THE COURT: Well, Ms. Shellow-Lavine can discuss this 24 with defense counsel. I could give a lecture -- I gave part of 25 it yesterday. If I had known, I certainly would have, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3263 477LSAT2 1 there are only about eight remaining documents that I haven't 2 gotten to. 3 MS. BAKER: I realize that, your Honor, which is why 4 we didn't think that pressing your Honor further to rule would 5 materially change the situation. 6 THE COURT: It's remarkable. Lectures don't do very 7 much good. 8 So my inclination would be to -- not to just give up 9 half a day, but to bring the jury in for tomorrow morning to 10 exhaust whatever there is, and not for tomorrow afternoon, and 11 to tell the -- bring the juror back in at the break and say, In 12 all likelihood, we'll not sit tomorrow afternoon; if the juror 13 would like to check with her doctor whether she can be seen by 14 any of the doctors tomorrow afternoon, she could do that. 15 MS. SHELLOW-LAVINE: Your Honor, I was just looking at 16 my watch. In order to accommodate her, you may want to bring 17 her in now, If, in fact, that's what -- how these events are 18 going to turn out, given my guess is that if we wait until the 19 afternoon break, she may have problems scheduling. 20 THE COURT: If you could go out and talk to the other 21 defense counsel and find out if that's acceptable. 22 MS. SHELLOW-LAVINE: Why don't I do that? If you will 23 excuse me, I will be right back. 24 (Off the record) 25 MS. SHELLOW-LAVINE: I have spoken with my colleagues SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3264 477LSAT2 1 and we have no objection. We will take the afternoon and put 2 it to some other productive use. 3 THE COURT: All right. Why don't we bring in Juror 4 323. 5 (Continued on next page, which commences sealed 6 excerpt, Pages 3265 - 3266) 7 o 0 o 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3267 477LSAT2 1 (In open court; jury not present) 2 THE COURT: Can I talk to the lawyers just briefly? 3 (At the sidebar) 4 THE COURT: I came out because the juror is using the 5 phone in the robing room. So I was just going to inform you of 6 that. We still have to wait for the juror to be finished with 7 the phone. 8 MS. BAKER: Your Honor, while we're all standing here, 9 if I might ask if I could be excused for this afternoon so I 10 can address some matters outside of the courtroom? 11 MR. PAUL: Mr. Fallick has asked to be relieved from 12 appearing as well, so we can proceed in his absence. 13 THE COURT: Fine. That will be fine. 14 (Off the record) 15 THE COURT: I've said the juror has to make a phone 16 call, and the regulations are such that one marshal has to be 17 in the robing room, and I just asked the marshal to make sure 18 that was okay with the juror. 19 (Off the record) 20 THE COURT: The jurors are ready to come back. The 21 juror made the phone call, and I'll tell the jurors at the end 22 of the day we won't be sitting tomorrow afternoon. If there's 23 any better fix on the time, if you could give it to me at the 24 break. 25 MR. TIGAR: Your Honor, I understand there will be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3268 477LSAT2 1 more reading this afternoon. Will those be matters as to which 2 a limiting instruction is appropriate? 3 MR. BARKOW: Your Honor, the plan is to read some of 4 the Sattar search exhibits that are admitted, two of which, I 5 believe -- if we get there -- two of which are offered with 6 respect to Mr. Sattar and Ms. Stewart. And the rest are 7 offered only with respect to Mr. Sattar. 8 Specifically, the two that are offered with respect to 9 both Mr. Sattar and Ms. Stewart are 2036, which has been 10 admitted into evidence, and then -- actually, I guess there's 11 three: 2009, 2009A. And those are offered with respect to 12 both. 13 Then there are others that are offered only with 14 respect to Mr. Sattar. In nonnumerical order: 2045, 2050A 15 through L; 2069; 2056; 2032. 16 Two stipulations, which are 2047S and 2049S. 17 2000; 2053; 2058. 2035, and that has been replaced, 18 it's now 2035X and 2035S. There's an excerpt and a stipulation 19 with respect to that which is a replacement of the original. 20 That has not yet been offered into evidence, but the parties 21 reached an agreement with respect to that, so we're going to 22 offer it and ask to publish it. 23 2061; 2062; 2063. I think I already said 2009 and 24 2009A. 2081. 25 THE COURT: 2009 and 2009A are offered against SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3269 477LSAT2 1 Mr. Sattar and Ms. Stewart? 2 MR. BARKOW: Right. 2081, which is just against 3 Mr. Sattar. Back now to just Mr. Sattar. 2072; 2042, which 4 the Court ruled yesterday would be admissible but is not yet 5 admitted into evidence. 2044. Same situation with that: The 6 Court ruled it would be admissible; it has not yet been 7 offered. 8 And then there's the 2046A through E set of exhibits. 9 Some of those are already admitted, have been read, actually, 10 or will be read, as they are speeches Abdel Rahman, 2046A, B 11 and D, we're not planning on doing anything with those at this 12 point other than offering them into evidence. 13 2046 C and E are speeches offered only against 14 Mr. Sattar. The Court indicated yesterday they would be 15 admissible, but still have yet to actually be offered. 16 The reason I read them in that order your Honor is 17 that's the order of presentation, and I apologize, it's not in 18 numerical order, but that's the order which we anticipate 19 presenting them. And so that's why it's not numerical. 20 MR. TIGAR: Your Honor, there's also the question of a 21 limiting instruction with respect to "offered for the truth", 22 "not offered for the truth". Some of these are newspaper 23 articles, and as to those, the Court has been in the habit of 24 giving a special newspaper article/media cautionary 25 instruction. And we would request as to each exhibit the same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3270 477LSAT2 1 type of instruction that the Court has been in the habit of 2 giving with respect to something in that category. There are 3 no new categories here. 4 MR. BARKOW: That's correct, your Honor. They're not 5 all newspaper articles, as the Court is aware. All are offered 6 to show knowledge, intent, state of mind. And then two are 7 also offered as background and context. And that is, 2050A 8 through L, photographs. And also 2072, which are time sheets 9 from Mr. Sattar's work at the Abdel Rahman trial. 10 The rest are offered to show knowledge and state of 11 mind. And some of those are newspaper articles, not all of 12 them. 13 Just so the Court is aware, the newspaper articles are 14 actually grouped together, so that's one of the reasons for the 15 order of presentation, with the exception of 2044, which I have 16 listed at the end. That was in part because that hadn't been 17 admitted until yesterday. But I can move that so they're all 18 grouped together. There was a block of newspaper articles 19 together, and then different kinds of evidence. So if the 20 Court wanted to just give the instruction once, we could do all 21 the newspaper articles at the same time rather than having to 22 repeat it. 23 THE COURT: All right. The three exhibits that are 24 being offered against Mr. Sattar and Miss Stewart, are there 25 any other limiting instructions other than they are being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3271 477LSAT2 1 offered only against Mr. Sattar and Miss Stewart and not to be 2 considered against Mr. Yousry? 3 MR. TIGAR: If recollection serves, your Honor, those 4 are the faxes? 5 MR. BARKOW: One is a fax. 2036 is a fax of a 6 newspaper article from Miss Stewart to Mr. Sattar. 2009 and 7 2009A are transcripts -- portions of transcripts from the Abdel 8 Rahman trial. 9 MR. TIGAR: The fax, if memory serves, attaches a 10 newspaper article. 11 MR. BARKOW: The fax has at the top a header which 12 indicates where it was sent from, and then it is of a newspaper 13 article. 14 MR. TIGAR: The newspaper article is obviously not 15 being offered for the truth. This is just being offered to 16 show that the communication was sent. 17 MR. BARKOW: None of the exhibits that I have listed 18 are being offered today for the truth. There are the two that 19 are being offered for background and context. And all are 20 being offered to show state of mind. None of these are being 21 offered for the truth. 22 THE COURT: So 2036, 2009, 2009A are being offered 23 only against Mr. Sattar and Miss Stewart and only to be 24 considered against them and not Mr. Yousry, and they are being 25 offered solely with respect to knowledge, intent, state of mind SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3272 477LSAT2 1 of Mr. Sattar and Miss Stewart. And to the extent that there's 2 a newspaper article, we will apply the instruction on newspaper 3 articles. 4 MR. TIGAR: Yes, your Honor. 5 THE COURT: Okay? 6 MR. BARKOW: Does the Court have a preference, your 7 Honor, with respect to Exhibit 2044 which I had listed last, 8 but I mentioned I could do in a group? I don't know if the 9 Court was going to give the instruction at the outset or -- 10 THE COURT: Whenever you reach newspaper articles, 11 I'll give the substance of the instruction that Mr. Tigar 12 referenced, the instruction which I've given before, but right 13 now we're going to continue with the finishing the exhibits 14 from the Abdel Rahman trial, right? 15 MR. DEMBER: That is correct, your Honor. There's one 16 more speech with questions and answers and with a 17 question-and-answer session; and then two FISA calls. And then 18 we'll be done with the exhibits that were introduced under 213. 19 MR. RUHNKE: Your Honor, when it does come time to 20 offer the exhibits that Mr. Barkow was talking about, I would 21 like a statement -- like it stated by the Court something more 22 than not being against Mr. Yousry, a statement that it should 23 not be considered as evidence against Mr. Yousry for any 24 reason. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3273 477LSAT2 1 MR. RUHNKE: Thank you. 2 MR. BARKOW: Your Honor, that, in a sense, touches a 3 little bit on the issue raised by my letter of last night with 4 respect to Count 2 being a predicate for, for example, Counts 4 5 and 5. If evidence is offered against Sattar to show his 6 knowledge and state of mind, it obviously can be considered for 7 Count 2, and since we need to prove Count 2 as a predicate for 8 Counts 4 and 5, it's our view that the requested instruction 9 overstates somewhat the proper use of the evidence, and 10 instead, could be explained in more detail as I've just said 11 it. 12 Essentially, that it can be considered with respect to 13 Mr. Sattar, and to the extent that Count 2 is a predicate -- 14 and this can be explained, however -- but to the extent that 15 Count 2 is a predicate for Counts 4 and 5, it might be usable 16 against other defendants. 17 And it doesn't necessarily have to be stated that way, 18 but I think Mr. Ruhnke's proposal overstates somewhat the 19 limited use of the evidence because, in a way, consideration of 20 the evidence with respect to Mr. Sattar and his state of mind 21 does bear on consideration of Counts 4 and 5 with Count 2 as a 22 predicate. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3274 477SSAT3 1 MR. RUHNKE: Your Honor, the government just told you 2 they are not offering it against Mr. Yousry and if they are not 3 offering it against Mr. Yousry, they are not offering it 4 against Mr. Yousry. This idea that because they have to prove 5 the Count 2 conspiracy doesn't mean that evidence is offered on 6 the Count 2 conspiracy is admissible against Mr. Yousry. They 7 have to establish it as if, as your Honor pointed out in your 8 order, the government quotes, even if it were a separate trial 9 they would have to prove the Count 2 conspiracy, but it doesn't 10 mean that evidence is admissible against Mr. Yousry because he 11 is not named in Count 2. So I am not sure if the government is 12 trying to have it two ways or three ways but they stand up and 13 say it's not offered against Mr. Yousry and I understand that 14 to mean simply it's not offered against Mr. Yousry. 15 THE COURT: Why isn't it an acceptable instruction at 16 least as I listened to the parties that the evidence is 17 offered -- the first three pieces of evidence are being offered 18 only against Mr. Sattar and Ms. Stewart and not against 19 Mr. Yousry? And the remaining ones offered are offered only 20 with respect to knowledge, intent and state of mind of 21 Mr. Sattar and Ms. Stewart with any newspaper article 22 instruction, and that the remaining exhibits, putting aside 23 background and context, that the remaining exhibits are being 24 offered only against Mr. Sattar and not against Ms. Stewart or 25 Mr. Yousry and only with respect to knowledge, intent and state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3275 477SSAT3 1 of mind of Mr. Sattar. 2 MR. RUHNKE: I don't know if the government has a 3 problem with it. My view is that if it's offered for 4 background and context -- 5 THE COURT: There were only two exhibits that were 6 background and context, and it's still only offered against 7 Mr. Sattar, 2050 and 2072, and those are still, at least as I 8 understand, offered only against Mr. Sattar and not against Ms. 9 Stewart and Mr. Yousry. 10 MR. RUHNKE: With that understanding I don't object to 11 the court's instruction. 12 MR. BARKOW: That is acceptable to the government as 13 well. 14 I think I may have misheard but there were three 15 exhibits offered against Mr. Sattar and Ms. Stewart and the 16 remainder are offered against Mr. Sattar only. I may have 17 misheard the court. 18 THE COURT: That is what I got. 19 MR. BARKOW: Okay. 20 THE COURT: And the two exhibits for background and 21 context are still offered only against Mr. Sattar and not 22 against Ms. Stewart or Mr. Yousry and I thought that they were 23 being offered both with respect to background and context as 24 well as knowledge, intent and state of mind. 25 MR. BARKOW: That is correct, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3276 477SSAT3 1 THE COURT: Of Mr. Sattar. 2 MR. BARKOW: That is correct, your Honor. 3 THE COURT: Okay. 4 You can bring in the jury now. 5 Whatever happened to the chart that you were doing or 6 the -- 7 MR. RUHNKE: We are still discussing that among 8 ourselves, your Honor. And I think this instruction is a 9 perfect example of why something like that is necessary. 10 (In open court; jury present) 11 THE COURT: Please be seated all. 12 Good afternoon, ladies and gentlemen. I appreciate 13 your indulgence. There were various matters that we had to 14 take care of and so, again, I appreciate your indulgence. 15 All right, Mr. Dember. 16 MR. DEMBER: Your Honor, with your permission we would 17 like to now read Exhibit 203T. It is part of a speech, and 18 then a question and answer session. 19 I will read the part of Omar Abdel Rahman and, with 20 your permission, Mr. Morvillo will read the other parts. 21 May he take the witness stand to do the reading and I 22 will stand at the podium? 23 THE COURT: Yes. 24 MR. MORVILLO: Your Honor, can we display it to the 25 jury? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3277 477SSAT3 1 THE COURT: Yes. 2 (At this point, Government Exhibit 203T in evidence 3 was read to the jury by Mr. Dember and Mr. Morvillo) 4 MR. DEMBER: Your Honor, with your permission Mr. 5 Morvillo and I will read Government Exhibit 207T. 6 May we also display it for the jury? 7 THE COURT: All right. 8 MR. DEMBER: It is a telephone call dated May 25, 1993 9 between Omar Abdel Rahman and there are two other persons. 10 MR. DEMBER: Your Honor, I will read the part of Omar 11 Abdel Rahman and Mr. Morvillo will read the other parts. 12 THE COURT: All right. 13 (At this point, Government Exhibit 207T in evidence 14 was read to the jury by Mr. Dember and Mr. Morvillo) 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3278 477LSAT4 1 (Government Exhibit 207T in evidence read by Messrs. 2 Dember and Morvillo [cont.]) 3 THE COURT: Ladies and gentlemen, we'll just take five 4 minutes. Normally we break at 4:30, but we got a late start 5 this afternoon. 6 (Afternoon recess) 7 (In open court; jury not present) 8 THE COURT: Please be seated, all. The one juror 9 expressed concern to Mr. Fletcher that we were going to be 10 breaking early tomorrow because of her, and Mr. Fletcher 11 assured her no, that it was just a scheduling issue. 12 All right, let's bring in the jury. 13 I'll tell the jury at the end of the day that we'll 14 sit tomorrow only until the lunch hour Because of scheduling 15 issues. 16 (Jury entering courtroom) 17 (In open court) 18 THE COURT: Please be seated, all. Mr. Dember? 19 MR. DEMBER: Your Honor, with your permission I'd like 20 to read the final exhibit introduced on stipulation, which was 21 Government Exhibit 213. The exhibit is Exhibit 210. It's a 22 telephone conversation on May 27th, 1993 between Omar Abdel 23 Rahman and two other individuals. I will read the part of Omar 24 Abdel Rahman and Mr. Morvillo will read the other two parts. 25 May we display the transcript for the jury, please? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3279 477LSAT4 1 THE COURT: Yes. 2 (At this point, Government Exhibit 210T was read into 3 the record by Messrs. Dember and Morvillo) 4 THE COURT: Ladies and gentlemen, that takes us to 5 about 4:27, and so we'll break for the day. Tomorrow, because 6 of scheduling, we'll only be sitting tomorrow morning until 7 lunch hour when we will break. So I won't bring you back 8 tomorrow afternoon, and we don't sit on Friday. I wanted to 9 let you know that now in case there were -- there was any 10 appointment or anything you wanted to make for tomorrow 11 afternoon and you could do that. 12 Please remember to follow my continuing instructions: 13 Please don't look at or listen to anything to do with the case. 14 If you should see something or hear something, just turn away. 15 Please remember to not talk to anyone about the case or 16 anything to do with it. Always remember to keep an open mind 17 until you've heard all of the evidence, I've instructed you on 18 the law, and you've gone to the jury room to begin your 19 deliberations. 20 Have a very good evening. I look forward to seeing 21 you tomorrow. 22 All rise, please. 23 (Jury exits the courtroom) 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3280 477LSAT4 1 (In open court; jury not present) 2 THE COURT: All right. Please be seated, all. 3 Okay. I received the government's July 6th letter, 4 and I said I would -- if the defendants wanted to address that 5 letter orally with respect to those three documents, that's 6 fine. If they want to put something in writing, that's fine, 7 too. And Mr. Ruhnke said he wanted to at least address it 8 orally. 9 MR. RUHNKE: Yes, your Honor. Your Honor, the 10 government's letter of July 6th talks actually about three 11 separate documents, as I understand it: The government 12 contends that they're admissible against all defendants. 13 Nevertheless, the government contends that the evidence is only 14 relevant to Count 2. And as we all obviously understand, 15 neither Mr. Yousry nor Ms. Stewart is named as a defendant in 16 Count 2. 17 The three documents -- one is a speech of Omar Abdel 18 Rahman, And perhaps the government can help me out with a date, 19 an approximate date of that speech, and the sermon. 2040 is 20 the speech, 2057 is the will, And 2070 is the sermon of 21 Dr. Rahman or Sheikh Rahman. I raise that because we just had 22 documents received into evidence last month -- for example, 23 there was a phone call that took place in 1993. You know, long 24 before any of the conspiracies charged in this indictment 25 coming into existence. And the further we get away from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3281 477LSAT4 1 dates of the actual conspiracies here, the less penultimate the 2 proof is, I contend. 3 So perhaps the government could help us out and tell 4 us what the dates are on these documents -- I don't have that 5 at my fingertips -- as a predicate to the continuing argument. 6 MR. BARKOW: Your Honor, with respect to 2070 and 7 2057, I think I've stated before in our letters the range 8 within which we think we can place 2057 and 2070, which is 9 sometime between 1996, January of 1996, and 1998 -- the month 10 of 1998 escapes me -- December, 1998, For 2057 and 2070. 11 For 2040, we are not able to date that speech. 12 MR. RUHNKE: That helps. I thank counsel for that. 13 However, the government's letter of July 6th, from our 14 perspective, continues to reflect a confusion about what 15 purposes these were being admitted for. And if they are 16 admissible as to Count 2 on some theory, they cannot be 17 admissible as to Ms. Stewart or to Mr. Yousry because they're 18 not named in Count 2. 19 I understand the argument as made by the government 20 that it is necessary to establish the Count 2 of the conspiracy 21 or for the jury to find the existence of Count 2, the 22 conspiracy of Counts 4 and 5 are to be established, but that 23 does not mean that evidence that's admissible only on the 24 Count 2 conspiracy is somehow admissible against the defendants 25 not named in Count 2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3282 477LSAT4 1 The letter also says that the evidence is offered 2 pursuant to 801(d)(2)(E) to prove the truth of the matters 3 asserted. Well, even if that is so and if they're offered on 4 the Count 2 conspiracy, that does not make them admissible as 5 to defendants not named in Count 2. 6 When the government explains by Footnote 2 as to what 7 it means when it says the exhibit is offered as to Counts 8 2/4/5, it means that the evidence is offered as direct evidence 9 of Count 2, and as background and context to Counts 4 and 5. 10 And again, I have personally some difficulty following the 11 reasoning of that because it seems to come back to the point 12 that we have to establish the Count 2 conspiracy in order to 13 make our case of 4 and 5, but that doesn't mean that the 14 evidence is admissible against the defendants not named in 15 Count 2 of the indictment. 16 So that as I view it, this evidence, if it's going to 17 be admissible, is only admissible as to Mr. Sattar, and as 18 direct evidence, as I surmise from the government's letter, of 19 the charges alleged in Count 2, for example, which goes on the 20 intent of Abdel Rahman, who although he is not a defendant in 21 Count 2, is named explicitly as an unindicted coconspirator in 22 Count 2, But still should not be admissible as to Defendants 23 Yousry and Stewart. 24 On the issue of coconspirator, hearsay, and adopting 25 prior statements or acts of coconspirators for joining a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3283 477LSAT4 1 conspiracy later on that's ongoing and existing -- which may or 2 may not be part of the government's offer here, it's hard to 3 tell -- the government has cited the Baddalamanti case, the 4 1986 Baddalamanti case, and in that case, what the Second 5 Circuit says is that when one joins a new conspiracy that's 6 been ongoing -- and it cites Judge Weinstein's and Berger's 7 Treatise on Evidence -- I'm looking at Baddalamanti, Page 828, 8 794 F.2d at Page 828. The quotation from the Weinstein and 9 Berger treatise is, and I'll just read it, from the Second 10 Circuit, quote: 11 "It is reasonable to expect that a 'new recruit can be 12 thought to have joined when an implied adoption of what had 13 gone on before to enhance the enterprise of which he is taking 14 advantage' where, as here, there is 'sound reason to believe 15 that he joined, when he was generally aware of what his new 16 partners had been doing and saying on behalf of the 17 enterprise.'" 18 So that there is in Baddalamanti the idea that in 19 order to have past statements and actions of coconspirators 20 attributable to the 'new recruit', which is I suppose the 21 argument made regarding Mr. Yousry and Ms. Stewart, there has 22 to be some further foundation that the defendant was aware of 23 what was going on And what was being said by this conspiracy 24 that he is now starting to become a member of. And at least as 25 to Mr. Yousry, whom I can only speak for, I don't see that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3284 477LSAT4 1 foundation either. 2 So in reading the government's arguments in the letter 3 of July 6th, it appears that the evidence, if it is admissible 4 at all, is not admissible as to all defendants but only as to 5 Mr. Sattar, and therefore should have an in limine instruction 6 excluding Mr. Yousry and Ms. Stewart from all three -- from any 7 liability for all three. 8 When the government says it's not offered for the 9 truth of the matter but as a verbal act, that may well be the 10 case, but that still does not mean it's admissible against 11 people who are not involved in Count 2. And I do not see it as 12 background information for Counts 4 and 5, either. So I don't 13 see even, either, as subject to that kind of limiting 14 instruction, either, as to other defendants other than those 15 involved directly in Count 2, which in terms of people being 16 here, is only Mr. Sattar. Mr. Sattar is the only one named 17 currently in Count 2. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3285 477SSAT5 1 MR. RUHNKE: So my view or argument, respectfully, is 2 that this evidence is not admissible against anyone except 3 Mr. Sattar and if there are limiting instructions that go along 4 with that, it's to Mr. Sattar's counsel to address the 5 appropriate limiting instructions. 6 MR. TIGAR: I would add the following, your Honor: 7 The Count 4 conspiracy and the Count 5 substantive offense 8 depend on two operative words -- provide and conceal. Nothing 9 in any of these three exhibits is relevant to providing or 10 concealing. The theory of Count 4 is that the defendants 11 provided Abdel Rahman to a conspiracy and that they concealed 12 the fact they were doing so. These are statements of his which 13 so far as the evidence shows were not provided by either of 14 these defendants nor were they concealed or the fact of their 15 providing concealed by either of these defendants. They are 16 simply statements. 17 Moreover, and this repeats a little bit what I said, 18 they are statements uttered at a relatively uncertain time and 19 under circumstances which so far as these defendants were 20 concerned did not raise the possibility of imminent lawless 21 action or were not uttered in a context that bespoke imminent 22 lawless action. That is to say, as I tried to argue the other 23 day, the First Amendment with respect to the clear and present 24 danger test is always contextual. And as to these defendants 25 these statements lack that context. I won't repeat the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3286 477SSAT5 1 argument which is a Spock-Noto argument. It seems to me it's 2 sufficient to say that there simply is no relevance as to the 3 crimes that are charged in Counts 4 and 5. 4 THE COURT: All right. 5 Mr. Barkow. 6 MR. BARKOW: Yes, your Honor. 7 I think that our position is set forth finally in our 8 July 6 letter and the theory is that the statements are 9 admissible to prove Count 2 and that in separate trials of 10 Mr. Yousry or Ms. Stewart they would be admissible against them 11 because we would need to prove the existence of Count 2 so as 12 to prove the existence of the conspiracy that they are alleged 13 to have provided material support to. 14 So they are admissible directly to prove Count 2 for 15 Exhibit 2040 under the co-conspirator statements rule. The 16 portions of 2040 include things that we offer for the truth, 17 for example, we are terrorists, we assassinate, we are 18 assassins in substance, those types of statements. Other 19 portions of that statement 2040 are nonhearsay acts not offered 20 for the truth; for example, threats in that statement, don't be 21 hesitant in pursuing your enemies, things like that, they feel 22 pain like you do. And then that is with respect to 2040 and at 23 this point with respect to the other two exhibits we are not 24 offering them for the truth. We are not offering them under 25 the co-conspirator statements rule, 801(d)(2)(e), but we are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3287 477SSAT5 1 offering them with respect to Mr. Yousry and Ms. Stewart 2 because we must prove the existence of Count 2 and similarly to 3 my argument earlier today with respect to some of the Sattar 4 search evidence and similar to the court's ruling with respect 5 to the 1998 fatwah -- 6 THE COURT: Well, you know, I take what people say 7 very seriously and the government said that the 1998 fatwah was 8 not being offered against Ms. Stewart or Mr. Yousry and I will 9 give that instruction to the jury because it's the instruction 10 that the government said in its papers to me. Now, I explain 11 something further in my opinion about what a separate trial of 12 Ms. Stewart would be. Yes, so be it. But when the government 13 tells me this is the limiting instruction, that is the limiting 14 instruction that I will give. That also raises for me though 15 the question why is it, by the way, that originally on the list 16 2057 and 2070 was being offered only against Mr. Sattar, not 17 against all defendants? 18 MR. BARKOW: Which list is that, your Honor? 19 THE COURT: The list that I was reading yesterday, 20 which was the list that came with the June 28 letter. It was 21 attachment A. Each exhibit that was in dispute. So the list 22 that I was working from yesterday was attachment A to the 23 government's June 28th letter and the attachment to Ms. 24 Shellow-Lavine's June 29th letter which gave Ms. Stewart's 25 response. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3288 477SSAT5 1 MR. BARKOW: Your Honor, I am looking at my Exhibit A 2 to that letter. 3 THE COURT: Yes. Am I wrong? 4 MR. BARKOW: It says -- 5 THE COURT: No, you are right. I am wrong. 6 You are right. 7 MR. BARKOW: And with respect to the fatwah -- 8 THE COURT: Hold on. 9 You are right. You are right. 10 You were going to say with respect to the fatwah. 11 MR. BARKOW: Yes, your Honor, we are not at all 12 seeking to revisit or step back about what we were saying from 13 the Bin Laden fatwah. We are only relying on the method of 14 analysis with respect to that. We had initially proposed the 15 limiting instruction because we perceived, and I think the 16 court and the parties did as well, with respect to Bin Laden 17 there might be a particularly acute danger of unfair prejudice 18 and so we think perhaps an even more powerful limiting 19 instruction is appropriate with respect to that. 20 THE COURT: Let me return -- thank you for correcting 21 me, if you intended to correct me. 22 Two comments on 801(d)(2)(e). 23 How would 801(d)(2)(e) be admissible for the truth 24 against Ms. Stewart and Mr. Yousry based upon the allegations 25 of the Count 2 conspiracy when they are not alleged to be a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3289 477SSAT5 1 member of that conspiracy? That was the point I was trying to 2 make yesterday. 3 There is a difference between the possible 4 admissibility of evidence and whether something can be admitted 5 as statements by co-conspirators under an agency theory. 6 MR. BARKOW: It would not, your Honor, because it 7 would be admissible against Mr. Sattar for the truth and then 8 as background and context under our theory therefore to prove 9 the existence of a Count 2 conspiracy, and then that is a 10 predicate to Counts 4 and 5 and therefore background and 11 context as to those. 12 THE COURT: But it couldn't be admitted then for the 13 truth of any of those statements against either Ms. Stewart or 14 Mr. Yousry. 15 MR. BARKOW: Correct. 16 THE COURT: Your chart indicates all defendants, 17 Federal Rule of Evidence 801(d)(2)(e). 18 MR. BARKOW: The court is referring to the June 28th 19 chart? 20 THE COURT: I am on the July 6 letter. 21 MR. BARKOW: Okay. 22 And what I meant to communicate by Footnote 2 when I 23 said that it was admissible as to those three charges and by 24 direct evidence of Count 2, what I meant to communicate there 25 is direct evidence admissible for the truth to prove Count 2 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3290 477SSAT5 1 and then as background and context for Counts 4 and 5 because 2 Count 2 would be proven to exist and therefore under Counts 4 3 and 5 it could be the recipient of material support. 4 THE COURT: How could it be admitted even as 5 background for the truth against defendants who are not alleged 6 to be co-conspirators? It lacks the agency. 7 MR. BARKOW: Correct. It would be offered against 8 Sattar for the truth and then as background and context because 9 the Count 2 conspiracy would have been proven to exist and so 10 therefore it would be background and context to Counts 4 and 5, 11 not for the truth. The only reason why it would matter, for 12 example, for Stewart and Yousry that we prove that Abdel Rahman 13 admitted on behalf of the conspiracy that he was a terrorist 14 and an assassin would be to show that the Count 2 conspiracy 15 existed and therefore was a conspiracy to murder and therefore 16 could receive material support. But it would not be offered 17 for the truth against them. It would be offered to show the 18 existence of the Count 2 conspiracy as a predicate. 19 THE COURT: But it's being offered for the truth of 20 the existence of the Count 2 conspiracy. 21 MR. BARKOW: Correct. 22 THE COURT: So it's being offered for the truth 23 against defendants as to whom it cannot be offered as for the 24 truth. A conspiracy can be proved in many ways by many 25 different kinds of evidence and why is it not correct that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3291 477SSAT5 1 have to analyze the individual evidence according to all of the 2 rules of evidence and that if it's not admissible for the truth 3 against defendants, then it's not admissible for the truth and 4 that just calling it something else doesn't make it admissible 5 for the truth against those defendants. 6 MR. BARKOW: I am not arguing that it's admissible for 7 the truth, your Honor, against them. 8 THE COURT: But aren't you? If you say the jury can 9 consider that for the truth of the statements to establish the 10 existence of the Count 2 conspiracy and can then take that 11 based on what statements for the truth, even though the jury is 12 not entitled to consider those for the truth against the other 13 defendants. 14 MR. BARKOW: I guess the way that I would look at it, 15 your Honor, is that in terms of a chronology of decision-making 16 for the jury, they could consider the statements for the truth 17 to determine whether the Count 2 conspiracy exists with respect 18 to Mr. Sattar because it's the only person charged with it. If 19 they decide that it doesn't exist or it didn't exist and that 20 it wasn't prepared for, then they can't convict Mr. Yousry or 21 Ms. Stewart. If they do decide that it existed or was prepared 22 for, then they have to move on to the separate question of 23 whether Ms. Stewart and Mr. Yousry provided or concealed 24 material support to that conspiracy that they found to have 25 existed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3292 477SSAT5 1 When they are making that determination, they can no 2 longer consider for the truth of the matter asserted those 3 statements, but in fact they don't need to because they have 4 already decided that there is this entity out there, this 5 conspiracy to kill and kidnap, that could be the recipient of 6 this material support. And at that point they wouldn't be 7 using the statements to determine whether or not Ms. Stewart or 8 Mr. Yousry provided or concealed, they would have already used 9 them to determine that the conspiracy to murder existed. 10 THE COURT: Well, I try very carefully to make sure 11 that I analyzed all the theories of admissibility very 12 carefully and to make sure that each individual ruling is as 13 correct as I can make it. 14 These documents hardly go to the heart of the case. 15 The 2040 is a speech not clear as to when it was given. The 16 Count 2 conspiracy is alleged in the indictment to have begun 17 in 1999, although the argument is made that in '99 it became a 18 conspiracy to violate the laws of the United States as already 19 set out. But we have a speech of unknown date. And the other 20 two speeches or the other two documents are in fact later in 21 time but not offered for the truth. 22 I do have a question with respect to the defendants on 23 the arguments that were made. 24 Mr. Ruhnke, I appreciate the careful lines that are 25 drawn about evidence, how it can be used and what the rules of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3293 477SSAT5 1 evidence are with respect to hearsay and truth, purposes for 2 which it's offered, and there is a distinction, as I have said 3 before, as to whether something could be offered for the truth 4 because of a co-conspirator nonhearsay determination and 5 whether some evidence is simply relevant to the existence of 6 the Count 2 conspiracy which, as I said even if the defendants 7 Stewart and Yousry went to trial on a severed indictment, the 8 government would be required to prove the existence of the 9 Count 2 conspiracy. So evidence of the existence of the Count 10 2 conspiracy would be part of that case, right? 11 MR. RUHNKE: Of course. 12 THE COURT: It wasn't clear to me from your argument 13 that simply because it goes to the Count 2 conspiracy that it 14 follows that the limiting instruction shouldn't be simply that 15 it's, if in fact this is right, that it goes to or can be 16 considered only with respect to some limiting instruction that 17 it goes to the Count 2 conspiracy. 18 MR. RUHNKE: I think I understand what your Honor is 19 saying and if, for example, there is a severance and the 20 government was offering evidence as to this person who is not 21 here by the name of Mr. Sattar and what he had done, and the 22 obvious question in the jury's mind would be why are we hearing 23 all of this stuff about this guy Sattar who is not on trial 24 here -- 25 THE COURT: There are the charges in the indictment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3294 477SSAT5 1 There is a Count 2 conspiracy. There is a Count 4 and a Count 2 5. 3 MR. RUHNKE: Right. But there is no reason to even 4 limit the evidence, other than to say that it's not admissible, 5 period, end of story, against Ms. Stewart and Mr. Yousry. And 6 if there comes a time when you are instructing the jury, and 7 that is almost what I thought Mr. Barkow was getting at, is to 8 say that if you don't find the existence or if you don't 9 convict anybody of the count it conspiracy, it's over as far as 10 Mr. Yousry and Ms. Stewart are concerned on Counts 4 and 5, 11 that is a jury instruction issue. Here we are talking about 12 the admissibility of evidence, what purpose evidence is 13 admitted for and as to whom it's admitted, and the main 14 proposition is that it is not admissible against Ms. Stewart 15 and Mr. Yousry at all. If when we come time to instruct the 16 jury, I assume one of the things we will talk about is the 17 relationship between the Count 2 conspiracy and Counts 4 and 5 18 and the necessity for the jury, before even they are going to 19 consider Counts 4 and 5, to have made some determination as to 20 whether Count 2 has been proven beyond a reasonable doubt or 21 not. If it hasn't been, that they are instructed simply that 22 they must acquit Mr. Yousry and Ms. Stewart on Counts 4 and 5. 23 So it's a difference between an instructional kind of 24 issue and the people as to whom evidence is actually admitted 25 at the trial. So I maintain the position that the proper SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3295 477SSAT5 1 instruction is that this evidence is not admitted and may not 2 be considered for any purpose as to whether Ms. Stewart and 3 Mr. Yousry are guilty of any of the counts in the indictment at 4 this point. When it comes time to instructing the jury. There 5 are other charges in the indictment besides 4 and 5 as well. 6 So that when we start limiting the instructions in this case it 7 has been part of our 403 argument, is that it gets pretty 8 esoteric. 9 When certain evidence is offered as to one defendant 10 but not other defendants, but offered as to some defendants in 11 some other cases as to limited purposes and some defendants as 12 to the truth and some as not for the truth, and some as to only 13 particular counts, that it's going to get pretty esoteric and 14 hence our thought that perhaps we might find a way of charting 15 this out for the jury when it goes back to finally consider 16 this evidence. But as far as this evidence that we are 17 discussing right now, these three pieces or three documents, 18 two speeches and a will, I don't conceive of any of this 19 evidence being offered realistically as to Mr. Yousry and Ms. 20 Stewart except on some theory the government has that, well, 21 it's background and context of 4 and 5. It's really not 22 background and context of 4 and 5. Either the government 23 proves Count 2 or 4 and 5 go away. So I maintain the position 24 it's not admissible for any purposes against Mr. Yousry and Ms. 25 Stewart. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3296 477SSAT5 1 MR. TIGAR: Your Honor, may I be heard briefly on that 2 issue? If you go back a few pages in the transcript, Mr. 3 Barkow was addressing the court about Counts 4 and 5 and I 4 remarked to myself then that he left out an element because Ms. 5 Stewart and Mr. Yousry are not guilty unless they knew and 6 intended. It is their knowledge and intent. And that is what 7 the parties opened on, knowledge and intent. And now what is 8 proposed to be offered are three documents of the existence of 9 which they are, so far as the evidence shows or will show, 10 utterly innocent. And, thus, if there is some relevance it is 11 considerably attenuated by virtue of the parties having defined 12 the issues as they do. And, in fact, because this is a case in 13 which the parties opened on the issue of knowledge and 14 intent -- 15 THE COURT: Well, I don't mean to interrupt you, but I 16 fully appreciate that the parties have briefed in their jury 17 instructions the issue of whether it should be knowledge and 18 intent or knowledge or intent and that you are using knowledge 19 and intent. The statute uses knowledge or intent and I plainly 20 will decide this issue in the context of the jury instructions 21 but I tried very hard in my opinion on these particular charges 22 to reflect the statute when I was referring to the statute, 23 which is knowledge or intent, and refer to the indictment as 24 knowledge and intent because as the parties knowledge, the 25 indictment has to charge in that language of knowledge and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3297 477SSAT5 1 intent. 2 And it is, as I said, a high specific intent crime 3 because it requires knowledge or intent with respect to the 4 provision of the resources to the conspiracy to kill or kidnap. 5 And I didn't want the fact that you were explaining that to go 6 as an assumption that I was agreeing with the formulation of 7 knowledge and intent. 8 MR. TIGAR: I wouldn't play that game, your Honor. 9 And I think I am the one that cited Chookshank, which is the 10 19th Century case that said that -- which has not been cited by 11 the Supreme Court since Justice Stewart did in 1962. But that 12 wasn't my point. My point was that regardless of the mental 13 element, whether it's knowledge and intent or knowledge or 14 intent, let's take the lower one in model penal code terms, the 15 quadrapartite model penal code statement about intent, let's 16 take knowledge, which is one down from purpose or intention. 17 Even on that lower one it simply doesn't work. The parties 18 have opened on this theory. That is what it's about. So my 19 point that the relevance is attenuated, and it's that 20 attenuated relevance plus the risk of unfair prejudice and 21 spillover that in our view makes the point that Mr. Ruhnke was 22 making. 23 MR. BARKOW: Your Honor, if I may just respond 24 briefly, the relevance of these statements, because they are 25 being offered as to Count 2 directly, is to show the existence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3298 477SSAT5 1 of Count 2 and Abdel Rahman is alleged to be a co-conspirator 2 in that conspiracy and, therefore, for example, his intent is 3 highly relevant to whether or not that conspiracy exists, which 4 is a completely different issue than the one Mr. Tigar is 5 raising here. And so I think that is the -- 6 THE COURT: But the issue that is really being raised 7 is the issues of knowledge, intent are very important in the 8 case and the focus on at least from the standpoint of 9 defendants Stewart and Yousry and their knowledge, their 10 intent, is both their knowledge of the existence of the other 11 conspiracy and that they are providing material resources to 12 such a conspiracy, and that, of course, this evidence doesn't 13 go specifically to that. It's alleged to go to the existence 14 of the Count 2 conspiracy in various forms and, you know, one 15 of the things that I have to think about with respect to all of 16 these documents is how the quantity of evidence with respect -- 17 already with respect to the state of mind with respect to 18 Sheikh Abdel Rahman, which there have been substantial evidence 19 with respect to his various speeches and what he explained, et 20 cetera, and how this evidence fits in with that over requests 21 for limiting instructions and how I fit that in with 403. 22 MR. BARKOW: Your Honor, maybe I will come at it from 23 this way: Our view of Mr. Ruhnke's -- 24 THE COURT: But the other thing is we are dealing 25 with -- it's always some interest to me about how evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3299 477SSAT5 1 which is before the most important evidence in the case, 2 namely, what actually went on in the period charged in the 3 indictment with respect to the conspiracies charged in the 4 indictment, and how what the level of relevance is to that 5 evidence as I balance it against the 403 interests. 6 Go ahead. 7 MR. BARKOW: Your Honor, Mr. Ruhnke's proposed 8 instruction we view as overbroad and we think that an 9 instruction along the lines of these statements can be 10 considered -- maybe a more positive rather than negative 11 statement -- these statements can be considered as to the 12 existence of the Count 2 conspiracy and as to Abdel Rahman's 13 membership in it and his intent. Stated positively that way 14 would be a correct statement of the law and would communicate 15 what the proper use of these statements are. And I don't mean 16 to be exhaustive in that proposal, but just kind of pointing 17 out the difference in the approach because we think that Mr. 18 Ruhnke's proposal is overbroad by implying that there is no 19 connection whatsoever between the statements and the existence 20 of the Count 2 conspiracy and Counts 4 and 5. And so that is 21 why we resist that proposal. 22 With respect -- and the court knows this so I won't 23 spend much time on this, but even if, for example, the 2040 24 speech is viewed as too old and therefore not admissible under 25 801(d)(2)(e), either because its relevance is attenuated or it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3300 477SSAT5 1 fails the 403 balancing or because it just doesn't satisfy the 2 801(d)(2)(e) test, it still, however, we think, would be 3 relevant to show Abdel Rahman's intent because he is the same 4 person when he was a member of the conspiracy as he was when he 5 made these statements. And so it's relevant to show his intent 6 because he is a member of that conspiracy and it certainly 7 casts light on his intentions and his conduct in this case. 8 And with respect to Mr. Tigar's argument, he brings me back to 9 what I started with, Mr. Sattar's opening statement in 10 significant part rested on attempting to draw a distinction 11 between his activities being should be placed in context and 12 weren't directed at violence but are instead -- and I am just 13 paraphrasing -- but are instead largely political. But the 14 existence of a conspiracy to murder is proven powerfully, we 15 submit, by the fact that Abdel Rahman makes such powerful 16 statements, such as the 2040 statement where he essentially 17 admits we are terrorists, we are assassins, and in the sink 18 ships fatwah, 2070. And so that is the relevance, the powerful 19 relevance, here of these statements is to prove the existence 20 of that conspiracy to kill and kidnap and also to rebut what 21 appears to be Mr. Sattar's defense, which is a different issue 22 than Ms. Stewart's and Mr. Yousry's knowledge and intent or 23 knowledge or intent of the Count 2 conspiracy. 24 And so I wanted to make those points. 25 Finally, a very small point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3301 477SSAT5 1 And I wanted to make clear we do not need to prove 2 that the Count 2 conspiracy actually existed in our view. It's 3 either that it existed or it was being prepared for and so I 4 just want to kind of pre-staging the jury instructions issue, 5 which I am certainly not the expert on, Ms. Baker is, but Mr. 6 Ruhnke was alluding to down the road jury instruction issues. 7 The statute says that in order to provide material support the 8 conspiracy to kill or kidnap has to exist or be prepared for 9 and I just wanted to point that out, your Honor. 10 THE COURT: Okay. 11 Anyone else? 12 All right. I will think about it. I don't expect I 13 will have an answer on this tomorrow. All of the other 14 exhibits are more than sufficient for tomorrow morning. 15 MR. BARKOW: We don't know exactly how long they will 16 take but they will take -- that are what we have for tomorrow 17 morning, we think it will probably take an hour and a half, a 18 little over 2 hours or so. 19 THE COURT: I thought there was also the possibility 20 of other witnesses. 21 MR. MORVILLO: There was going to be one final witness 22 from Scotland Yard tomorrow morning, your Honor, but the 23 parties have come to a stipulation with respect to that 24 testimony so it will not be necessary to have that witness. 25 THE COURT: Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3302 477SSAT5 1 MR. MORVILLO: There is also a possibility there might 2 be another witness and we are trying to arrange that now. 3 MR. TIGAR: I am sorry, your Honor, one last thought. 4 THE COURT: Sure. 5 MR. TIGAR: This is not a case in which the Count 2 6 conspiracy risks failing for want of a second conspirator. The 7 question of Abdel Rahman's membership in the Count 2 conspiracy 8 is not, under the way the parties have framed the issues, one 9 of those elements of the offense or whatever. Indeed, up to 10 now the membership issue has only been relevant with respect to 11 Bourjaily type 104 determinations to determine whether and 12 under what circumstances the 801 nonhearsay comes in. It's 13 another way of talking about the relatively peripheral 14 character of this question that the government is raising. If 15 the court is unpersuaded by that additional observation, or if 16 I am reducing the persuasive power of what I have already said, 17 then I will sit down. 18 THE COURT: Okay. All right. 19 Anything else? 20 Okay, thank you all. See you tomorrow at 9:15. 21 (Trial adjourned to July 8, 2004 at 9:15 a.m.) 22 o 0 o 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 3303 1 INDEX OF EXAMINATION 2 Examination of: Page 3 PATRICK KILLEEN 4 Direct By Mr. Dember . . . . . . . . . . . . 3225 5 o 0 o 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 2702 . . . . . . . . . . . . . . . . . . 3230 9 2703 . . . . . . . . . . . . . . . . . . 3234 10 2704 . . . . . . . . . . . . . . . . . . 3236 11 2705 . . . . . . . . . . . . . . . . . . 3239 12 2706 . . . . . . . . . . . . . . . . . . 3243 13 o 0 o 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300
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