8 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 19 of the proceeding and Day 10 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 8, 2004
8 9:38 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 CHRISTOPHER MORVILLO
16 ANTHONY BARKOW
17 ANDREW DEMBER
17 Assistant United States Attorneys
18
18 KENNETH A. PAUL
19 BARRY M. FALLICK
19 Attorneys for Defendant Sattar
20
20 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
21 Attorneys for Defendant Stewart
22
22 DAVID STERN
23 DAVID A. RUHNKE
23 Attorneys for Defendant Yousry
24
25
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1 (In open court; jury not present)
2 MR. TIGAR: Your Honor, we have been reviewing the
3 draft transcript of this SAM reading, the one that they're
4 going to play the tape of, the people reading the SAM to Sheikh
5 Omar Abdel Rahman in April, 2000. The government is going to
6 play the tape today.
7 Later, they're going to bring the translator. And
8 we've now reviewed the transcript with the translator
9 translating and so on, and our application is that under
10 Rule 106, that the Court admit all of the SAM reading
11 videotapes from Rochester in addition to the one, the April,
12 2000, one that's now in evidence. I don't think there can be
13 an authenticity question. And we don't intend to publish them
14 now.
15 MR. DEMBER: Your Honor, if I may. There's only one
16 videotaped rendition of the reading of the SAMs to Omar Abdel
17 Rahman that's in evidence. That's Exhibit 370. We have not
18 offered any other tape, videotape renditions of the SAMs to
19 Abdel Rahman into evidence. They were read to him. Some were
20 videotaped, some were not videotaped. On a particular day,
21 each one was read, about four months apart. I can't conceive
22 of how Rule 106 would apply to the reading of SAMs on April 19,
23 2000, which is the date of the videotape, how Rule 106 applies
24 to that reading and to a reading of the SAMs which may have
25 been videotaped four months before that, or eight months before
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1 that. Clearly Rule 106 does not apply.
2 To the extent that Mr. Tigar wants to offer those
3 other videotapes into evidence, there was testimony that some
4 of the readings of the SAMs were videotaped and some were not,
5 but to the extent he wants to offer those into evidence at some
6 point during this trial, he can offer them during his own case,
7 or he's mentioned for the first time to me this morning that he
8 may want to offer them and maybe we can come to an agreement on
9 that. But I'm not prepared at this point to decide if we will
10 do that or not. And that has nothing to do with and should
11 have nothing to do with our playing Exhibit 370 this morning.
12 Certainly Rule 106 simply does not apply to separate readings
13 of the SAMs over the years that Abdel Rahman was in Rochester
14 when they're read approximately four months apart.
15 MR. TIGAR: Your Honor, the SAMs are renewed. There
16 are initial SAMs and then, as Mr. Fitzgerald testified, there
17 are a series of renewals through the process. And that's the
18 relationship, the integra of the relationship, and the
19 indictment alleges that.
20 THE COURT: At this point, I'm -- regarding the
21 reading of any other SAM, there's only one in evidence, and
22 there's no showing that Rule 106, that -- first of all, there
23 is only one reading that's in evidence which is government
24 Exhibit 370. There was no request at that time when that
25 exhibit was in evidence that any other exhibit was necessary
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1 for purposes of completeness under Rule 106. And there is no
2 showing at this point that the exhibit that's in evidence and
3 is to be played to the jury should be supplemented with any of
4 the other recordings.
5 The parties are welcome to continue to explore whether
6 any of the other SAMs should be admitted into evidence and
7 should be read at a later time to the jury, but there's nothing
8 under Rule 106 that would prevent Government Exhibit 370 from
9 being read at this time.
10 MR. BARKOW: Your Honor, I just wanted to make the
11 Court aware of three quick points before the jury came in. Two
12 relate to our presentation of the Sattar search evidence.
13 The first is, I'd like, before I start to do that, as
14 we have some other evidence, re: the relevant portion of the
15 stipulation, just to situate the jurors as to what this
16 evidence is. That's Exhibit 185, and I would read one
17 paragraph from that to basically establish that we're talking
18 about that evidence, and it would be Paragraph 4 which talks
19 about how the evidence was transported from the Sattar
20 apartment to the FBI building. So I just wanted to make the
21 Court aware of that rather than asking in front of the jury.
22 And secondly, one of the exhibits that we intend to
23 publish today is from the Abdel Rahman trial, and it has a few
24 lines by Ms. Stewart, and pursuant to the Court's ruling, we
25 were intending to have another person from office, Ms. Levin,
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1 who is sitting in the audience, come up and read those parts,
2 and I wanted to raise that with the Court beforehand as well.
3 And finally, on a different issue, the letter that we
4 sent to the Court last night, it came to our attention this
5 morning that inadvertently there was a page between the letter
6 and the cover sheet for Attachment A that has nothing to do
7 with this case, and even though we've now learned it's labeled
8 "sensitive", it is not a problem, and to the extent it was even
9 sent to the defendants -- but it has nothing to do with the
10 letter. It was a mistake.
11 THE COURT: I saw it was sent to the defendants
12 because it was faxed to me and I would assume that the same fax
13 went to all of the people on the distribution list.
14 MR. BARKOW: I assume so, and it's in our copies that
15 were distributed within our office. It just was a mistake: It
16 was picked off the same copy machine.
17 THE COURT: I don't know what it is. It was plainly a
18 summary of public information.
19 MR. DEMBER: Your Honor, just one matter: Since we're
20 going to play Exhibit 370 first, may I simply introduce it as
21 an exhibit which was -- came into evidence through the
22 testimony of Kara Christenson and that she testified it was a
23 videotape of the reading of a renewal of the SAMs to Omar Abdel
24 Rahman on April 19th, 2000? That's from her testimony. Just
25 so the jury can put it into perspective.
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1 THE COURT: I have no problem with that. Any problem
2 with that?
3 MR. TIGAR: I'm sorry, your Honor. I was conferring
4 about another matter. I didn't hear counsel. If he wants
5 to -- we have no objection to him playing it.
6 THE COURT: He wanted to introduce it with the
7 explanation that it had been introduced during the testimony of
8 Ms. Christenson who said that it was a videotape of the reading
9 of SAMs to Omar Abdel Rahman on such-and-such a date.
10 MR. TIGAR: Thank you, your Honor. Yes. We have no
11 objection to that. I'm sorry.
12 THE COURT: All right. Mr. Dember?
13 MR. DEMBER: Thank you, your Honor.
14 MR. RUHNKE: Just one final request: I assume your
15 Honor will read the appropriate limiting instruction about some
16 of this evidence. I'm not sure all of it -- as I'm sitting
17 here, I'm not sure it's all defendants, some defendants...
18 MR. BARKOW: As we discussed yesterday, the first
19 three items are those that are offered against Mr. Sattar and
20 Ms. Stewart.
21 THE COURT: Hold on. The first thing that's going to
22 be read is Government Exhibit 370, as to which there's no
23 limiting instruction. The next is the stipulation, as to which
24 there's no limiting instruction; and the exhibit from the Abdel
25 Rahman trial, as to which there's no limiting instruction.
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1 Right?
2 MR. BARKOW: No, your Honor, the first thing is the
3 tape that will be played. Then we're going to turn to Sattar's
4 search evidence. I was going to read the stipulation. And
5 then there are three exhibits from the Sattar search.
6 THE COURT: What about the exhibit from the --
7 MR. BARKOW: That's what I was referring to when I
8 said -- from the Omar Rahman trial. It's a Sattar search
9 exhibit from that trial. And so it's a transcript of that
10 trial. And so that is within the Sattar search realm. And
11 after the videotape, everything else that we have is from the
12 Sattar search, and the first three are offered against
13 Mr. Sattar and Ms. Stewart; and the remainder that I would get
14 to are offered only against Mr. Sattar.
15 THE COURT: 2036, 2009, 2009A.
16 MR. BARKOW: Correct.
17 THE COURT: As to which I'll advise the jury, as I
18 said yesterday, that these exhibits are offered only against
19 Mr. Sattar and Ms. Stewart, and not against Mr. Yousry.
20 They're offered with respect to knowledge and intent and state
21 of mind of Mr. Sattar and Ms. Stewart. To the extent that any
22 of them contain newspaper articles, I'll give the instruction
23 on newspaper articles.
24 MR. RUHNKE: And would your Honor say they are not to
25 be considered by the jury against Mr. Yousry for any purpose?
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1 THE COURT: I thought that the instruction I had said
2 that I would give and everyone agreed on yesterday was the one
3 that I just gave.
4 MR. RUHNKE: Perhaps that's so, your Honor.
5 THE COURT: I'm sorry?
6 MR. RUHNKE: Perhaps that is so. And I think I'd
7 asked for something a little stronger so the jury gets the idea
8 in this case on limiting instructions that this evidence is not
9 coming in as to Mr. Yousry and should not be considered for any
10 purpose as to Mr. Yousry. If that's an amendment of what your
11 Honor stated yesterday or if the government disagrees with
12 that, then so be it. But I think it's important that the jury
13 know that if this was Mr. Yousry's trial all by himself, they
14 wouldn't be hearing this evidence.
15 THE COURT: Government?
16 MR. BARKOW: Your Honor, we think that the Court's
17 proposed instruction is appropriate and adequate, and this is
18 the issue that we discussed yesterday. And we think that this
19 is -- goes to the interrelationship of Count 2 with Counts 4
20 and 5.
21 THE COURT: You know, the parties have agreed on this,
22 and --
23 MR. RUHNKE: That's fine, your Honor. I'll withdraw
24 my request.
25 THE COURT: Particularly with respect to the remaining
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1 Sattar exhibits, those were admitted solely against Mr. Sattar
2 and not against Ms. Stewart or Mr. Yousry. They're admitted
3 solely with respect to the knowledge, intent and state of mind
4 of Mr. Sattar. If any of them are newspaper clippings, they're
5 subject to the same limiting instruction with respect to
6 newspaper clippings.
7 And 2050 -- and 2050A to L and 2072 are, again,
8 admitted only against Mr. Sattar, and not against Ms. Stewart
9 and Mr. Yousry. And in addition to knowledge, intent and state
10 of mind of Mr. Sattar, with respect to Mr. Sattar, they're
11 being admitted with respect to background and context.
12 MR. BARKOW: We agree, your Honor.
13 THE COURT: Are you in agreement with that?
14 MR. FALLICK: Yes, your Honor.
15 MR. RUHNKE: Yes.
16 THE COURT: All right. And I'll give those
17 instructions in two portions. First, before you -- after you
18 read the stipulation 2085 and before you read 2036, 2009 and
19 2009A; and then I'll give the remaining instructions before you
20 start reading the remainder of the Sattar exhibits.
21 Okay. Let's bring the jury in.
22 What happened to the stipulation with respect to the
23 remaining Scotland Yard --
24 MR. MORVILLO: I'm sorry, your Honor?
25 THE COURT: What happened with respect to the
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1 stipulation with respect to the remaining Scotland Yard
2 detective?
3 MR. MORVILLO: It's been executed and we are in
4 agreement. So --
5 THE COURT: But it's not one of the things you're
6 going to use today's time for?
7 MR. MORVILLO: That's correct. It relates to the
8 issue of what's on the recordings that we'll seek to move into
9 evidence next week.
10 (Jury entering)
11 (In open court)
12 THE COURT: All rise, please.
13 Please be seated, all.
14 Good morning, ladies and gentlemen.
15 JURORS: Good morning.
16 THE COURT: It's good to see you all. All right.
17 Government?
18 MR. DEMBER: Your Honor, with your permission at this
19 time the government would request permission to play Government
20 Exhibit 370. Government Exhibit 370 is a videotape which was
21 introduced during the testimony of Kara Christenson, who
22 testified it was a videotape of a reading of a renewal of the
23 Special Administrative Measures to Omar Abdel Rahman on
24 April 19th, 2000.
25 THE COURT: All right.
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1 (At this point, Government Exhibit 370, received in
2 evidence, was played for the jury)
3 MR. BARKOW: Your Honor, may I proceed?
4 THE COURT: Yes.
5 MR. BARKOW: Your Honor, with the Court's permission
6 I'd like to read from what has already been admitted into
7 evidence, Government Exhibit 2085, Paragraph 4.
8 THE COURT: All right. This is a stipulation?
9 MR. BARKOW: That's correct. I'll show the first page
10 again.
11 (At this point, Government Exhibit 2085, received in
12 evidence, was read into the record by Mr. Barkow)
13 MR. BARKOW: Your Honor, with the Court's permission,
14 I'd like to publish to the jury what's been admitted as
15 Government Exhibit 2036. With the Court's permission, if
16 Ms. Grant could put that on the screen.
17 THE COURT: Before you do that, ladies and gentlemen,
18 there are going to be various exhibits published to you. And
19 they're subject to limiting instructions, and, as I've told you
20 before and I will tell you in my final instructions, of course,
21 you are required to follow any limiting instructions that I
22 give you with respect to any evidence. And you should follow
23 those instructions very carefully.
24 Now, the first three exhibits I will give you limiting
25 instructions on. Those are, I understand, exhibits which are
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1 Government Exhibits 2036, 2009 and 2009A. These exhibits are
2 offered only against Mr. Sattar and Ms. Stewart, and not
3 against Mr. Yousry. These exhibits are being offered only with
4 respect to the knowledge, intent and state of mind of
5 Mr. Sattar and Ms. Stewart for any relevance those exhibits, if
6 any, have to that subject.
7 And finally, as I've told you before with respect to
8 newspaper articles, to the extent that any of these exhibits
9 contain newspaper articles, there is another instruction that
10 you should carefully remember and follow. A newspaper article
11 is not offered for the truth of what's said in the newspaper
12 article but rather for its effect on any people who read the
13 newspaper article, to the extent that that is relevant in the
14 case. So, for example, the effect that the newspaper article
15 may have on an individual defendant who reads that article, it
16 is offered for any effect of the article rather than for the
17 truth of what's -- anything that's said in the article.
18 Because what's written in a newspaper article is not
19 independent evidence of the truth of the facts that are
20 reported in the newspaper article. Because a newspaper article
21 is simply a statement by a reporter out of court about
22 something that happened, and indeed, that may in turn be based
23 upon what someone else told the reporter. And you don't have
24 the reporter here to testify about that, and you don't have
25 whoever spoke to the reporter to testify about that.
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1 That's why newspaper articles are not, in and of
2 themselves, received for the truth of what's said in the
3 newspaper article. They're received, if they are received, for
4 other purposes such as why people did things, having read the
5 article, or how it affected the state of mind of the people who
6 read the newspaper article.
7 So that is an additional limiting instruction that I
8 give you with respect to any exhibits that may contain
9 newspaper articles. And, as you'll recall, I've given that,
10 the substance of that same instruction before, with respect to
11 some other exhibits that contained newspaper articles.
12 All right?
13 MR. BARKOW: May Ms. Grant put Exhibit 2036 on the
14 screen, your Honor?
15 THE COURT: Yes.
16 (At this point, Government Exhibit 2036, received in
17 evidence, was read into the record by Mr. Barkow)
18 MR. BARKOW: May I have just a moment, your Honor?
19 THE COURT: Yes.
20 (Off the record)
21 MR. BARKOW: And your Honor, I'd ask that if Ms. Grant
22 could be permitted to focus on the fax line on the top, the
23 very top of this document.
24 MR. TIGAR: Could --
25 MR. BARKOW: I can read it.
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1 MR. TIGAR: May we have every word on all papers read?
2 MR. BARKOW: I'm sorry, I'll read that. 9/15, 1998.
3 I can't read the next word -- 19:26. 212-566 -- your Honor,
4 may I get the original? I can't read this copy.
5 MR. TIGAR: May I assist counsel?
6 MR. BARKOW: Thank you. 212-566-2024. Lynne F.
7 Stewart. Page 1.
8 May I have just a moment to confer with Mr. Tigar?
9 THE COURT: Sure.
10 (Off the record)
11 MR. BARKOW: Now if Ms. Grant could turn to the next
12 page of this exhibit, 2036.
13 THE COURT: All right.
14 MR. BARKOW: And as an initial matter focus on the
15 top. 9/15, 1998. 19:06. 212-566-2024. Lynne F. Stewart.
16 Page 2. Metro, Monday, April 15, 1996.
17 Now we'll go to the article.
18 (At this point, Government Exhibit 2036, received in
19 evidence, was further read into the record by Mr. Barkow)
20 MR. BARKOW: If we could go to the next page. I think
21 there might be a computer issue, if I could use the ELMO to
22 publish this.
23 THE COURT: All right. The ELMO, ladies and
24 gentlemen, is the colloquial name for the machine that's at the
25 podium that I explained to you where you can put documents on
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1 the screen and have them published for you, whereby it shows up
2 by means of a camera, as opposed to a document that's in the
3 computer and gets called up.
4 MR. BARKOW: Continuing, your Honor.
5 (At this point, Government Exhibit 2036, received in
6 evidence, was further read into the record by Mr. Barkow)
7 (Continued on next page)
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1 MR. BARKOW: Your Honor, may I turn now to actually
2 Exhibit 2009A and ask that Ms. Grant put the first page of that
3 on the screen, and may I confer with Mr. Tigar and give him
4 back his exhibit, your Honor?
5 THE COURT: Yes.
6 And remember, ladies and gentlemen, this is one of the
7 first three exhibits that I have already given you the
8 pre-limiting instructions for.
9 MR. BARKOW: Your Honor, I was not going to read this
10 page. I just wanted to publish this page to the jury and, if I
11 could ask Ms. Grant to turn to what is in this document page
12 1563.
13 Your Honor, may I have a moment?
14 THE COURT: Sure.
15 (Pause)
16 MR. BARKOW: "Appearances: Mary Jo White, United
17 States Attorney for the Southern District of New York by Andrew
18 McCarthy."
19 THE COURT: Shouldn't you go back to the first page to
20 identify what the exhibit is?
21 MR. TIGAR: We would suggest that, your Honor.
22 May I confer briefly with counsel?
23 THE COURT: Sure.
24 MR. BARKOW: Your Honor, I think there is an issue we
25 might need to talk about later and so I would like to move on
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1 to a different exhibit.
2 THE COURT: Okay.
3 MR. BARKOW: If I may, your Honor, this is a
4 different -- I am moving to the next group of exhibits for
5 right now.
6 THE COURT: All right.
7 Ladies and gentlemen, there are a series of exhibits
8 that I understand will be offered now. With respect to these
9 exhibits, these exhibits are being offered only against
10 Mr. Sattar and not against Ms. Stewart or Mr. Yousry. They are
11 being offered solely with respect to the knowledge, intent and
12 state of mind of Mr. Sattar, any relevance that the exhibits
13 may have to the knowledge, intent, and state of mind of
14 Mr. Sattar.
15 And, third, to the extent that -- well, two exhibits
16 or series of exhibits 2050A through L and 2072, are also
17 offered for background and context but, again, those are
18 offered only against Mr. Sattar and not against Ms. Stewart and
19 Mr. Yousry.
20 Finally, to the extent that any of these exhibits
21 contain newspaper articles, they are subject to the same
22 limiting instruction that I have given you with respect to
23 newspaper articles. Newspaper articles are not received for
24 the truth of what is said in the newspaper articles, and I have
25 explained to you why that is true. They are received, rather,
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1 for the effect on the person who reads them, for the effect on
2 the person's state of mind or for what the person does after
3 reading the newspaper articles. They are not received for the
4 truth and you may not consider them for the truth of anything
5 that is said in the newspaper articles.
6 All right.
7 MR. BARKOW: Your Honor, at this point I would like to
8 offer into evidence a signed stipulation which has been marked
9 for identification as Government Exhibit 2086T-A.
10 THE COURT: All right.
11 MR. BARKOW: And ask that I be permitted to publish it
12 on the overhead and present it to the jury.
13 THE COURT: All right, Government Exhibit 2086T-A.
14 MR. BARKOW: Yes, your Honor.
15 THE COURT: No objection. Government Exhibit 2086T-A
16 received in evidence.
17 (Government's Exhibit 2086T-A received in evidence)
18 MR. BARKOW: "The parties hereby stipulate and agree
19 that if called as witnesses trial qualified expert
20 Arabic-to-English translators employed by the Federal Bureau of
21 Investigation would testify that, in their opinions, the
22 transcripts marked as Government Exhibits 2000T, 2044T, 2045T,
23 and 2058T are true and accurate translations from Arabic into
24 English of Government Exhibits 2000, 20044, 2045 and 2058,
25 respectively. Agreed to and stipulated," and it is then signed
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1 by all of the parties.
2 THE COURT: All right.
3 MR. BARKOW: Your Honor, at this point I would offer
4 into evidence Government Exhibits 2045 and 2045T.
5 THE COURT: All right.
6 MR. BARKOW: And ask that Ms. Grant be permitted first
7 to put on the computer screen Exhibit 2045.
8 THE COURT: All right, ladies and gentlemen,
9 Government Exhibits 2045 and 2045T are received in evidence
10 subject to the limiting instructions that I have given you.
11 (Government's Exhibits 2045 and 2045T received in
12 evidence)
13 MR. BARKOW: If Ms. Grant could cycle through however
14 many pages there are of this exhibit, just one entire page at a
15 time.
16 At this point I would ask that Ms. Grant be permitted
17 to put Exhibit 2045T on the screen.
18 THE COURT: All right.
19 (At this point, Government Exhibit 2045T in evidence
20 was read to the jury by Mr. Barkow)
21 MR. BARKOW: Your Honor, at this point I would ask if
22 Ms. Grant could put before the jury what has already been
23 admitted into evidence as Government Exhibits 2050A through L
24 one at a time and leave each on the screen for a moment and I
25 will ask when to go to the next, your Honor.
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1 THE COURT: All right.
2 This is actually a convenient time for us to take our
3 mid-morning break. We will take ten minutes, ladies and
4 gentlemen.
5 Please remember my continuing instructions not to talk
6 about the case, and keep an open mind.
7 All rise please.
8 Please follow Mr. Fletcher to the jury room.
9 (Jury left the courtroom)
10 THE COURT: Please be seated for just a moment.
11 I gave a limiting instruction with respect to all of
12 the exhibits that were coming and when I saw 2050 on the screen
13 I asked myself why there was a limiting instruction because I
14 didn't think that there was a limiting instruction when these
15 photographs were originally entered into evidence.
16 2050A through L are just photos?
17 MR. BARKOW: That is correct, your Honor. I think
18 actually now that the court brings it up, I think ultimately on
19 the cross examination of Mr. Fitzgerald maybe they were all
20 admitted.
21 THE COURT: They were offered by --
22 MR. BARKOW: By Mr. Yousry.
23 THE COURT: It was originally objected to and I kept
24 them out and then they were offered on cross by Mr. Stern, I
25 think, and without objection. So 2050A through L is not
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1 subject to any limiting instruction.
2 MR. BARKOW: May we have a moment? Can I confer with
3 Mr. Stern for a moment? I don't think they are the same.
4 MR. STERN: We offered 2300A through D, I think.
5 MR. BARKOW: I don't think they were the same photos.
6 I was just corrected by Mr. Morvillo as well.
7 THE COURT: Okay. 2050A through L were admitted --
8 MR. BARKOW: Actually they were admitted after Agent
9 Schumaker testified. They were offered and admitted at that
10 point but they have never been published and so there were no
11 instructions with respect to those. I misunderstood for a
12 moment.
13 THE COURT: Okay. So no limiting instructions with
14 respect to 2050A through L, right?
15 MR. BARKOW: None have been given but they are
16 actually only offered as the court has just instructed the
17 jury, they are only offered against Mr. Sattar. I think there
18 is no need for a correction.
19 THE COURT: That is fine.
20 MR. RUHNKE: If that is the case, your Honor, we
21 should tell the jury that. I will confess I lost track of what
22 is admitted for what purpose at this point but obviously I will
23 take Mr. Barkow's word offering it only as to Mr. Sattar and
24 therefore the jury should be told that. I don't think you
25 specifically referenced these exhibits. I didn't know these
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1 exhibits were coming, I guess.
2 THE COURT: Oh, no, it's on my list and they were the
3 two that I told the jury were being offered for not only
4 knowledge, intent, state of mind of Mr. Sattar but also
5 background and context with respect to Mr. Sattar. Those were
6 Exhibits 2050A through L and 2072. So they are subject to all
7 of the limiting instructions that I gave with respect to this
8 series of exhibits and I gave the jury the instructions as to
9 what they are being received for.
10 MR. RUHNKE: Okay.
11 THE COURT: Now, at any time the defendants can
12 embrace those exhibits too and say admit them against us too or
13 not. But right now they are being offered and admitted subject
14 to those limiting instructions.
15 Now, there was one other issue with respect to 2009.
16 MR. TIGAR: Yes, your Honor. I simply told Mr. Barkow
17 that after he finished reading the part of the opening
18 statements that described the sheikh and his friends as
19 bloodthirsty killers that I was going to make an application to
20 read Ms. Stewart's opening statement that describes him
21 differently. That I thought was fair because the front page of
22 2009A indeed contains Ms. Stewart's handwriting which anybody
23 can see describing the different openings, Khuzami, Stewart,
24 Stavis, Ricco, and so on. So that the exhibit taken as a
25 whole, it seemed that the proposed publication was somewhat
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1 incomplete and that is when Mr. Barkow decided that this was a
2 matter that we needed to take up with your Honor.
3 MR. BARKOW: Your Honor, the reason that I did that
4 was this was the first time that I had heard that proposal and
5 I was in the middle of the presentation. We had proposed these
6 particular pages that we were going to publish the first time
7 we ever discussed it with the defendants and, indeed, when we
8 reached the agreement as to the admissibility of the exhibits.
9 We had selected -- and I am not saying we had reached an
10 agreement that they would not offer these other pages or seek
11 to read them, I am saying though we had made clear these were
12 the pages we were going to seek to publish.
13 We had selected I think a total of 8 to 10 pages that
14 we were going to read, some of which were parts of the opening
15 statement of the government with respect to Abdel Rahman, and
16 then four pages are testimony by a witness. As I said, for the
17 first time as I was about to read them I learned that Mr. Tigar
18 wanted to read what he said to me was I think was the entirety
19 of Ms. Stewart's opening statement which I don't know how long
20 it is. But I imagine it's longer by a significant margin than
21 what we were proposing. At that point we made a decision that
22 we would be content to publish none of it to the jury and leave
23 it for closing argument and the whole exhibit is in evidence
24 and we may revisit this and we can talk about it with Mr. Tigar
25 before we pick particular parts and perhaps reach an agreement
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1 before I am standing before the jury publishing the exhibits
2 rather than finding out in the middle of it.
3 THE COURT: Have 2009 and 2009A been received in
4 evidence already?
5 MR. BARKOW: Yes, your Honor.
6 MR. TIGAR: Your Honor, if they are not going to read
7 it, then the point is moot. I would like to respond to the
8 imputation of Mr. Barkow who quite correctly says there was no
9 agreement. I have from the very first day that transcripts of
10 the Rahman trial, briefs in the Second Circuit, all of those
11 pleadings -- most of them taken from Mr. Sattar's home --
12 became an issue, told him that we were going to at the point of
13 publication -- if they offered only parts we would exercise 106
14 rights and others, and as to publication at the time they
15 sought to publish it we would also make the appropriate
16 statement. So Ms. Stewart's opening, as a matter of fact, is
17 12-1/2 pages. I heard him say 8 plus 4. If page numbers is
18 the parity measure, then we are at parity. But in any case,
19 your Honor, I don't think we have misled our adversary about
20 our intentions.
21 THE COURT: Okay.
22 Well, it's moot at the moment because it's not going
23 to be read. The parties reached an agreement with respect to
24 the admissibility of 2009 and 2009A, so it's not subject to the
25 limiting instructions. It's not going to be read to the jury
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1 now.
2 There is a related issue which I will take up with you
3 at the end of the day with respect to the closing because I
4 realize that there is an offer which is objected to with
5 respect to the closings and I will address that and listen to
6 argument on that at the end of the day.
7 Okay. 5 minutes.
8 (Recess)
9 (In open court; jury not present)
10 THE COURT: Please be seated all.
11 All right, let's bring in the jury.
12 MR. BARKOW: Can I go to the podium, your Honor, and
13 just pick up?
14 THE COURT: Sure.
15 (Continued on next page)
16
17
18
19
20
21
22
23
24
25
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1 (In open court)
2 THE COURT: Ladies and gentlemen, when we left off,
3 the government was about to publish Government Exhibits 2050A
4 to L, and that was in a series of exhibits that I gave you the
5 limiting instructions for, and those limiting instructions will
6 apply to all of the remaining exhibits that you will see today.
7 Remember, those exhibits are being offered only against
8 Mr. Sattar, and not against Ms. Stewart or Mr. Yousry. They're
9 being offered solely with respect to the knowledge, intent and
10 state of mind of Mr. Sattar.
11 And there are two exhibits or proofs of exhibits that
12 are offered additionally with respect only to Mr. Sattar, also
13 for background and context, and that is 2050A through L which
14 you're about to see; and also Government Exhibit 2072.
15 Remember also that if there are any newspaper articles
16 in this group of exhibits, apply my instructions, my limiting
17 instructions with respect to newspaper articles. They're not
18 being received for the truth of anything that's said in the
19 newspaper articles.
20 And apply the remainder of my instructions, also.
21 MR. BARKOW: May I proceed, your Honor?
22 THE COURT: Yes.
23 MR. BARKOW: Ms. Grant, could you publish first 2050A,
24 2050B, 2050C, 2050D, 2050E, 2050F, 2050G, 2050H, 2050I, 2050J,
25 2050K, and 2050L.
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1 (At this point, Government Exhibits 2050A - L,
2 received in evidence, were displayed to the jury)
3 MR. BARKOW: Your Honor, at this point I'd like to
4 publish to the jury what has already been admitted into
5 evidence as Government Exhibit 2069. And if I could, publish
6 it to the jury using the overhead.
7 THE COURT: All right. The same limiting instructions
8 for all of these exhibits, ladies and gentlemen. As I told
9 you, these are being admitted only against Mr. Sattar and not
10 against Ms. Stewart or Mr. Yousry; and they're being admitted
11 solely for the knowledge, intent and state of mind of
12 Mr. Sattar. And if there are any newspaper articles, remember
13 my continuing instructions about newspaper articles not being
14 admitted for the truth of any newspaper articles. Okay? Okay.
15 (At this point, Government Exhibit 2069, received in
16 evidence, was read into the record by Mr. Barkow)
17 MR. BARKOW: Your Honor, at this point, I would ask if
18 Ms. Grant could put before the jury what has been admitted into
19 evidence as Exhibit 2056.
20 THE COURT: All right. Same limiting instructions,
21 ladies and gentlemen.
22 (At this point, Government Exhibit 2056, received in
23 evidence, was read into the record by Mr. Barkow)
24 MR. BARKOW: Your Honor, at this point I'd ask that --
25 I'd offer into evidence Government Exhibit 2044 and 2044T.
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1 THE COURT: Government Exhibits 2044 and 2044T are
2 received in evidence, subject to the same limiting instructions
3 as referenced before.
4 (Government's Exhibits 2044, 2044T received in
5 evidence)
6 MR. BARKOW: Your Honor, may Ms. Grant put before the
7 jury Exhibit 2044?
8 THE COURT: Yes.
9 MR. BARKOW: And Ms. Grant does not need to zoom on
10 these ones. And if Ms. Grant could be allowed to scroll
11 through this exhibit.
12 (At this point, Government Exhibit 2044, received in
13 evidence, was displayed to the jury)
14 MR. BARKOW: And now, could Ms. Grant be allowed to
15 display upon the screen Exhibit 2044T?
16 THE COURT: All right.
17 (At this point, Government Exhibit 2044T, received in
18 evidence, was read into the record by Mr. Barkow)
19 MR. BARKOW: Your Honor, at this point I'd ask
20 permission to have Ms. Grant put before the jury what has
21 already been admitted into evidence as Government Exhibit 2032.
22 THE COURT: All right. Same limiting instructions.
23 (At this point, Government Exhibit 2032, received in
24 evidence, was read into the record by Mr. Barkow)
25 (Continued on next page)
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1 MR. BARKOW: Your Honor, at this point the government
2 offers into evidence a signed stipulation which is marked for
3 identification as Government Exhibit 2047S, and I would ask
4 that I be permitted to publish it to the jury on the overhead.
5 THE COURT: All right, Government Exhibit 2047S is a
6 stipulation received in evidence, and you may put it on the
7 overhead.
8 (Government's Exhibit 2047S received in evidence)
9 THE COURT: No objection.
10 MR. BARKOW: "The parties hereby stipulate and agree
11 that: Government Exhibit 2047 is a videotape. The videotape
12 was recovered from a VCR that was attached to a mounted video
13 camera in Room D of the Sattar apartment. When the FBI search
14 team entered the apartment, the video camera was already on and
15 recording events inside the apartment. The tape shows members
16 of the Sattar family turn on the video camera and then leaving
17 the Sattar apartment and, some time thereafter, shows the
18 members of the FBI search team entering the Sattar apartment."
19 "Agreed to and stipulated," and it is signed by
20 attorneys for all parties.
21 Your Honor, at this point the government offers what
22 has been marked for identification, a signed stipulation, as
23 Government Exhibit 2049S and ask that I be permitted to publish
24 it to the jury.
25 THE COURT: All right. Government Exhibit 2049S
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1 received in evidence, no objection.
2 (Government's Exhibit 2049S received in evidence)
3 MR. BARKOW: "The parties hereby stipulate and agree
4 that Government Exhibit 2049 is a videotape of an HBO movie
5 dramatizing the events surrounding the 1993 bombing of the
6 World Trade Center. Agreed to and stipulated," and signed by
7 attorneys for each party.
8 Your Honor, at this point the government offers into
9 evidence what has been marked for identification as Government
10 Exhibits 2000 and 2000T.
11 I think 2000 has been admitted into evidence, your
12 Honor, and we offer 2000T.
13 THE COURT: All right. Government Exhibit 2000T is
14 received in evidence subject to the same limiting instructions,
15 ladies and gentlemen, that I have given you with respect to
16 this series of exhibits.
17 (Government's Exhibit 2000T received in evidence)
18 MR. BARKOW: May I have just a moment, your Honor? I
19 just have to check my computer.
20 Your Honor, may Ms. Grant put before the jury Exhibit
21 2000?
22 THE COURT: Yes.
23 MR. BARKOW: And Ms. Grant can scroll through however
24 many pages there are of 2000.
25 Now, your Honor, may Ms. Grant put before the jury
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1 Government Exhibit 2000T?
2 THE COURT: Yes.
3 (At this point, Government Exhibit 2000T in evidence
4 was read to the jury by Mr. Barkow)
5 MR. BARKOW: Your Honor, at this point I would ask if
6 Ms. Grant can put before the jury what is admitted into
7 evidence already as Government Exhibit 2053.
8 THE COURT: All right.
9 Ladies and gentlemen, subject to the same rulings and
10 instructions.
11 (At this point, Government Exhibit 2053 in evidence
12 was read to the jury by Mr. Barkow)
13 MR. BARKOW: Your Honor, at this point, the government
14 offers into evidence Exhibit 2058T.
15 THE COURT: Government Exhibit 2058T received in
16 evidence subject to the same limiting instructions, ladies and
17 gentlemen.
18 (Government's Exhibit 2058T received in evidence)
19 MR. BARKOW: At this point, your Honor, may Ms. Grant
20 place before the jury Exhibit 2058?
21 THE COURT: Yes. Is 2058 in evidence?
22 MR. BARKOW: 2058 has already been admitted.
23 THE COURT: All right.
24 (Government's Exhibit 2058T received in evidence)
25 MR. BARKOW: There is no need to zoom in on this
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1 exhibit.
2 Now may Ms. Grant place before the jury Government
3 Exhibit 2058T?
4 THE COURT: Yes.
5 (At this point Government Exhibit 2058T in evidence
6 was read to the jury by Mr. Barkow)
7 MR. BARKOW: May I have just a moment, your Honor?
8 THE COURT: Yes.
9 MR. BARKOW: Your Honor, I think the next exhibit
10 would take longer than the time remaining before the usual
11 lunch hour.
12 THE COURT: All right.
13 Ladies and gentlemen, we will break for the day and,
14 as I told you, we won't sit this afternoon. We won't sit on
15 Friday, so we will continue on Monday morning at 9:30.
16 Please remember my continuing instructions, ladies and
17 gentlemen. Please don't look at or listen to anything to do
18 with the case. Always remember to keep an open mind. Please
19 don't talk about the case or anything to do with it. As I
20 said, always keep an open mind until you have heard all of the
21 evidence, I have instructed you on the law, and you have gone
22 to the jury room to begin your deliberations. Fairness and
23 justice requires that you do that.
24 Have a very good weekend. I look forward to seeing
25 you on Monday.
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1 All rise please.
2 Please follow Mr. Fletcher.
3 (Jury left the courtroom)
4 THE COURT: Please be seated all.
5 As a preliminary matter, Mr. Fletcher informs me that
6 the jurors would like to upgrade the quality of their food, so
7 we are looking into that.
8 Second, they would like to go out for lunch, so Mr.
9 Fletcher will explore with the marshals the possibility of for
10 a week having the jurors taken out for lunch. We bring the
11 jurors breakfast -- danish, juice, coffee -- in the morning and
12 they get coffee in the afternoon. One juror wants to bring in
13 a microwave which is subject to the marshals' agreement and we
14 will allow that. If I think of it, I could bring cookies for
15 the jury in the afternoon, not from the parties but just from
16 the court.
17 I take it there is no problem with that.
18 MR. MORVILLO: The government has no objection.
19 MR. RUHNKE: No objection to the cookies, your Honor.
20 THE COURT: All right.
21 Now, I wanted to talk to you about the remaining
22 exhibits because I have looked at the remaining exhibits.
23 First of all, I got Mr. Barkow's letter last night, a
24 little before 9, about 2040, 2057 and 2070 and, as I understand
25 the letter, it really relates more to 2070 and 2057. It
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1 addresses all three but the main impact of the letter is, as I
2 read it, that they would be admissible for the state of mind of
3 Ms. Stewart and Mr. Yousry because the same or very similar
4 materials were in fact found in the searches of Ms. Stewart and
5 Mr. Yousry and I will certainly listen to the parties on that.
6 Does the government want to be heard first?
7 MR. BARKOW: No, your Honor.
8 THE COURT: Defendants?
9 MR. RUHNKE: Your Honor, I just got the letter this
10 morning and if I am reading it accurately -- I don't want to
11 take the time to read through it again right now -- what was
12 found in Mr. Yousry's search -- I think maybe this is
13 accurate -- was a page of a letter from CNN to Ms. Stewart
14 broaching topics, one of which is a will. That is how I read
15 the government's letter.
16 I don't see how the finding of the letter from CNN to
17 Ms. Stewart, which I think anybody could interpret as saying it
18 was given to Mr. Yousry as interpreter because these are topics
19 that may come up during the phone call, gives him knowledge of
20 the contents of the will.
21 MR. BARKOW: Your Honor, just so Mr. Ruhnke is aware,
22 since he didn't have a chance to see this maybe before court
23 today, Exhibits B and C to the letter were both actually found
24 in Mr. Yousry's residence. Mr. Ruhnke may not have had a
25 chance to look through the whole letter with the attachments
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1 yet.
2 MR. RUHNKE: But C is the interview.
3 MR. BARKOW: Correct. C is the interview.
4 MR. RUHNKE: But there is not a suggestion I think
5 that Mr. Yousry has a copy of the sheikh's will.
6 MR. BARKOW: That is correct, your Honor. The import
7 of the letter is that Ms. Stewart had documents in the search
8 that in substance state the content of the will and the
9 sink-their-ships fatwah. That is attached as A to the letter.
10 And the sink-their-ships fatwah is set forth in the first page
11 of attachment A and the second page seems to be a variation of
12 the will, or at least kind of the core of the will asking for
13 violent retaliation if Abdel Rahman is to die in custody. The
14 other two items, B and C, were found in -- B was found in both
15 the Stewart search and the Yousry search, and C was found only
16 in the Yousry search. And it is a transcript of a CNN report
17 that makes reference to the will and makes reference to the
18 fact that the will urges followers to seek revenge against
19 whoever kills Abdel Rahman. But there is not an allegation
20 that the actual text of the will or the sink-their-ships fatwah
21 was found in the Yousry search.
22 MR. RUHNKE: The point is that --
23 MR. BARKOW: And we are not taking the position that
24 2070 or 2057 should be admitted against either Stewart or
25 Yousry. We are just making the point that items that contain
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1 the same or similar content were found in those searches.
2 MR. RUHNKE: If the government is not offering it then
3 against my client, then I will sit down. I misunderstood the
4 import.
5 MR. BARKOW: Just to be clear, the things that we
6 ultimately might offer are the attachments which were found in
7 the search, but we are not arguing now that --
8 MR. RUHNKE: There are a lot of things that might
9 happen.
10 THE COURT: Hold on. You know, that is fine. That is
11 fine. But just for a bit of history, if memory serves me
12 right, and it's always helpful to go back to the transcript
13 rather than my own memory, but I had thought that 2057 and 2070
14 were not being offered against Ms. Stewart and Mr. Yousry but
15 only against Mr. Sattar, and then there was the government
16 letter which went through the explanation of 2070 -- of 2040,
17 2057 and 2070 and it said, I thought, it was being offered
18 against all defendants.
19 And I raised with the government, gee, I thought that
20 was a change of position and I thought Mr. Barkow said, "What
21 change of position?" And you corrected me and I went back to
22 your prior document and it said all defendants.
23 MR. BARKOW: I overstated. What I just said
24 overstated. I am not saying anything different, your Honor,
25 than what I said yesterday. We are offering 2070 and 2057T to
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1 prove Count 2 and this is the same point that I was making
2 yesterday; that because that is a predicate it is necessary to
3 be admitted against all the defendants. All I was saying just
4 now a second ago is that the fact that the items were found in
5 the Stewart and Yousry searches diminish the prejudice to
6 Stewart and Yousry of that admission to prove Count 2 and
7 therefore to prove a predicate for Counts 4 and 5. I didn't
8 mean to say -- I think I overstated. I didn't mean it to say
9 anything different or change the position of what I said
10 yesterday. So I should not have said what I said a moment ago.
11 MR. RUHNKE: I am a little lost. Are the documents
12 being offered against my client or not? If they aren't, I will
13 sit down.
14 MR. BARKOW: Yes, your Honor, they are being offered
15 to prove Count 2 and since Count 2 is a predicate to Counts 4
16 and 5 they are being offered against all defendants.
17 I have a bit of a headache from doing the reading and
18 I was a little discombobulated at the beginning.
19 MR. RUHNKE: Your Honor, let's just parse it out then.
20 If they are offered to prove Count 2, then they aren't offered
21 against my client because he is not named as a defendant in
22 Count 2. Count 2 is not a "predicate" to Counts 4 and 5.
23 Count 2 is just simply something the government must prove as
24 the first step or a necessary step of many to proving Counts 4
25 and 5. That does not translate -- and this is the argument we
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1 had yesterday -- that does not translate into saying the
2 evidence is admissible against those defendants named in Counts
3 4 and 5.
4 I would ask for an instruction at the time that these
5 are offered, assuming they are offered, assuming the 403
6 objections are not sustained, which we obviously have not
7 abandoned, but I think we have clarified that the government
8 says it offers it on Count 2 and since my client is not named
9 in Count 2 I take it they are not offered against my client.
10 But the 403 objections remain.
11 MR. BARKOW: Your Honor, I don't want to belabor it.
12 What I said yesterday is still our position as to the
13 instruction. We think it would be appropriate to state it
14 affirmatively rather than negatively; that it is being offered
15 to prove Count 2 rather than saying it should not be considered
16 at all with respect to Stewart or Yousry because of the notion
17 that we are advancing that since Count 2 is a predicate to
18 proving Counts 4 and 5 that Mr. Ruhnke's proposed instruction
19 overstates the appropriate boundaries for the use of this
20 evidence.
21 So the point of my letter last night was more to point
22 out that the danger of unfair prejudice under a kind of a
23 spillover type theory is diminished because particularly with
24 respect to Ms. Stewart the content of that statement is going
25 to be offered with respect to her because she had a copy of it.
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1 MR. TIGAR: Your Honor, before I make a comment, I
2 earlier said that the handwriting on Exhibit 2009A was Ms.
3 Stewart's. I have since looked -- it's not. I didn't want
4 that counsel admission to come back and haunt me at some later
5 point.
6 Now, with respect to this point, I have read the
7 government's letter carefully. This morning we heard Madeleine
8 Albright, the CFRs, translations of a trial in Egypt where five
9 people were sentenced to death in absentia based on confessions
10 extracted by the Egyptian security forces. We have been a
11 long, long ways, your Honor, and we have yet to hear a
12 telephone call involving these defendants of the some 250
13 promised or a prison meeting or anything else.
14 Before any of this comes in -- and the sheikh's will
15 is a piece of evidence that has a lot of power -- I suggest
16 that the court exercise its discretion as follows: That the
17 court hear the evidence of the Stewart office search, hear
18 where this excerpt was found, what was found next to it, give
19 us the opportunity to exercise rights under Rule 106, to make
20 objections under Rule 403, to seek the exclusion of it on
21 whatever grounds we may, to put it in context. And at that
22 time, then you will have the evidence about the Sattar search
23 and the Stewart search. And then perhaps wait some more for
24 the Yousry search, whenever that is coming.
25 So that whatever is decided to be done about this
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1 document can be done based on a full record, because I am sure
2 that the government's position with respect to its potential
3 use may very well change yet again before we get to the
4 position that the government describes as ultimately. So it
5 seems to us, quite respectfully, that it would be improvident
6 to address the jury with respect to this document now while the
7 ball is still in play.
8 And my next observation follows from that. We have
9 objected to using the contents of the lawyer's file and the
10 contents of a trial lawyer against the lawyer and all I can say
11 is, well, your Honor has ruled on that and I am not trying to
12 reargue it.
13 (Continued on next page)
14
15
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24
25
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1 THE COURT: Well, I rule on individual issues when
2 they come up, and -- based upon the arguments before me, and
3 individual pieces of evidence when they come up. Some -- and
4 my rulings are what they are. There may be some evidence that
5 comes from a lawyer's file that's not objected to. There's
6 some -- and I can't foresee all objections.
7 MR. TIGAR: Your Honor, I don't think I was saying
8 anything different, and I certainly was not intending
9 disrespect. I was simply saying that there will be some
10 arguments about that when this comes up and that that may be
11 the right time to resolve this issue. There does not seem to
12 be any urgency about it. There particularly isn't any urgency
13 about it because it is his will, so we obviously maintain our
14 objection on that ground.
15 This may be the only time in my whole life when I can
16 cite the Rule in Shelley's case. You know, a will is a
17 document that's supposed to have a future operation -- but
18 because of what the Court said, I will not now discuss the
19 issues that I might seek about the search. I just think that
20 it's premature.
21 MR. BARKOW: Your Honor, I'll just make a quick point.
22 I think the Court knows this: We're not offering the
23 attachments to my letter at this point. We were just putting
24 those before the Court so the Court was aware of them. We are
25 only offering at this point 2070, 2057 and 2040.
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1 THE COURT: What is the government's position with
2 respect to deferring a ruling on 2040, 2057 and 2070?
3 MR. BARKOW: Your Honor, we don't think that there's a
4 need to do that with respect to those exhibits.
5 THE COURT: Let me come back to that. And I'll
6 consider the exhibits and the letter.
7 I was actually -- I had gotten through discussing with
8 all of you the exhibits up to 2077, 2079. 2077 is a speech by
9 Omar Abdel Rahman which is offered against all defendants, and
10 Stewart and Yousry object on the grounds of cumulative,
11 relevance, authenticity.
12 2079 is another speech by Omar Abdel Rahman offered
13 against all defendants. Same objections by Stewart and Yousry:
14 Cumulative, relevance, authenticity.
15 Government?
16 MR. BARKOW: Your Honor, 2077 and 2079 I think could
17 be analyzed under the same method as 2040, 2070, and perhaps
18 2057. So I don't have anything new to say about those exhibits
19 other than just to point to what I had said in my letter of
20 last night, which is that, different than the exhibits in the
21 200 series that have already been presented, and that in
22 addition to being offered with respect to all defendants, were
23 particularly pointed out to have been heard by Ms. Stewart in
24 the Abdel Rahman trial, these exhibits were found in
25 Mr. Sattar's house, and so therefore, since we can't prove that
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1 Mr. Sattar heard or was present for the reading of the speeches
2 in the Abdel Rahman trial, these are important because they
3 were found in his house, and they go to his state of mind.
4 And then finally, I guess, within those tapes, 2077,
5 2079, 2040 and 2070 -- so we think the method of analysis is
6 similar for those. But we do think that the probative force of
7 2070 and 2057 in particular is particularly high. And then the
8 others can be looked at as a group, we think.
9 THE COURT: But that doesn't tell me a reason why they
10 shouldn't be limited to the -- being received against
11 Mr. Sattar rather than against the other defendants as to whom
12 there is an argument of cumulativeness. You say that the real
13 probative value -- I'm putting aside 2070, 2057.
14 MR. BARKOW: May I have just a moment, your Honor?
15 (Off the record)
16 MR. BARKOW: Your Honor, with respect to that
17 question, all I can say is that these are -- 2077 and 2079 are
18 tapes, and therefore we could prove -- and we proffer that we
19 could -- that it was Abdel Rahman's voice. And we put them on
20 equal footing as the other tapes and transcripts in the 200
21 series that were admitted.
22 THE COURT: The 200 series was admitted without a
23 limiting instruction. It was admitted also with the additional
24 instruction by the stipulation that Ms. Stewart was there, so
25 it's relevant to her state of mind. But -- and the fact that
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1 they were on tape, of course, doesn't make a difference in
2 terms of any impact on the jury because it's in the transcript.
3 MR. BARKOW: Really, your Honor, I want to say that
4 they could be viewed in a cumulative analysis -- and I'm
5 carving out 2057 and 2070, as the Court did -- 2077, 2079 and
6 2040 could be viewed I think appropriately by the Court in a
7 cumulative analysis. Looking at the other tapes in the 200
8 series that were already presented, we don't view them as
9 cumulative because we think that this is an essential issue to
10 the case, but I can't distinguish them from each other so much,
11 and so --
12 THE COURT: They appear to be similar.
13 MR. BARKOW: They're similar. I can't distinguish
14 them. We don't necessarily need even to publish or to present
15 to the jury all of those. We would like -- and again, I'm
16 carving out 2057 and 2070, but they are similar, the content of
17 them is similar to those that have been presented. Except with
18 respect to Mr. Sattar.
19 THE COURT: No, I understand that. I understand.
20 MR. TIGAR: Your Honor, it is the similarity that
21 causes us to urge that they not be introduced in evidence to
22 burden the jurors further.
23 Taking a look at 2079 as an example of this, it starts
24 out with religious speech. There is no direct advocacy here of
25 imminent violence. There is a call for God to bless people who
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1 are fighting in different parts of the world; there is
2 criticism of the human rights practices of the Egyptian
3 government, in the same words that we've heard before. There
4 is a discussion of what's happening to -- that Egyptian human
5 rights stuff is on the second page; that's about tortures and
6 so on. The second and third full paragraphs.
7 Then there is a great deal here about some of this
8 stuff that's going on in Bosnia, Yugoslavia. That's part of
9 it.
10 The first page is another one of those history
11 lessons, in almost the same words as the history lessons that
12 we've already heard, that is, the rise to power of the Muslims.
13 It's a shorthand version of the Muslim traders eastward sweep
14 during the latter part of the Eastern Roman Empire and all the
15 rest of it, so it's duplicative. It's not very probative of
16 anything that's alleged in this indictment, because it doesn't
17 contain any of the really sensational stuff that the government
18 has previously relied on.
19 And I think the same observation can be made about
20 each one of the exhibits in this series. I mean, I don't mean
21 to be disrespectful of the government's position, but, you
22 know, my grandmother used to threaten me, if I was bad, I'd
23 have to go listen to more sermons. And I just wonder why we're
24 all being subjected to this repetitious material.
25 THE COURT: Well, some of the things you say cut
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1 against your position: The fact that they are not sensational,
2 they are -- the government is correct with respect to the
3 additional probative value with respect to the state of mind of
4 Mr. Sattar because he was -- there's no evidence with respect
5 to the other speeches that he was there. Or had them. And
6 Mr. Sattar's state of mind is something that also has to be
7 proven.
8 The speeches do contain, each of them -- and I've gone
9 over them -- similar comments to speeches that have gone on
10 before, relevant and probative comments, and I'll go over them
11 again, but I would be inclined to receive them with a limiting
12 instruction that they're limited to Mr. Sattar and not against
13 Ms. Stewart or Mr. Yousry. And I'll look at an appropriate
14 limiting instruction. That would be my inclination with
15 respect to 2040, 2077 and 2079.
16 MR. TIGAR: In that case, your Honor, we would renew
17 orally our motion for severance for Ms. Stewart. I understand
18 your Honor will deny it after I've been heard, is likely to,
19 but I'm going to make it.
20 THE COURT: Sure.
21 MR. TIGAR: And it is that it is precisely the
22 similarity, indeed, the identical use of concepts and language,
23 the material not subject to a limiting instruction and the
24 material that is subject to a limiting instruction, plus these
25 Noto-Spocks scales, difficulty of shapes and intent with
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1 respect to everybody, to capture in capsule form the arguments
2 I've made previously, that leads us to think that this is a
3 ground on which to renew the motion for severance.
4 THE COURT: Yes. That's denied.
5 The admission of these speeches against Mr. Sattar in
6 no way prejudices Ms. Stewart. As you put it, they are not
7 sensational. They are of a type of evidence that is already
8 admitted against Ms. Stewart, and properly so. There's nothing
9 about the admission of these additional speeches that
10 prejudices Ms. Stewart or that places the jury in a position
11 not to be able to carefully consider the evidence subject to
12 limiting instructions.
13 Which leads me then to 2065 and 2071, which are the
14 indictments against Bin Laden and the other defendants. And
15 there is an objection from Ms. Stewart and Mr. Yousry on the
16 grounds of relevance and 403. Why don't I listen to the
17 government on that?
18 MR. BARKOW: Your Honor, these exhibits are offered to
19 show Mr. Sattar's knowledge of Osama Bin Laden, which we view
20 as relevant because of Bin Laden's participation in the
21 February, '98 fatwa, and the September, 2000 Al-Jazeera
22 broadcast, and so that is why it is offered, and since that
23 evidence has been admitted, it's offered to show that
24 Mr. Sattar knew who Bin Laden was.
25 And furthermore, the indictment, one of these two
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1 indictments, was discussed on the telephone between
2 Ms. Stewart, Mr. Sattar and Yasser Al-Sirri -- may I have just
3 a moment, your Honor?
4 (Off the record)
5 MR. BARKOW: I need to amend that. Between Mr. Sattar
6 and Yasser Al-Sirri. And one of these indictments was the
7 subject of discussion between Mr. Sattar and Mr. Al-Sirri.
8 And furthermore -- and I can't go too far on this one
9 because I don't have this information exactly at my fingertips
10 right now -- there is a telephone call with Ms. Stewart, I
11 believe, where the faxing of an indictment is discussed with
12 Mr. Sattar, I believe. And the date of that telephone call I
13 don't know right now as I stand here today, but the date is
14 close in time to the filing dates of these two indictments.
15 So...
16 But this evidence is offered because it was found in
17 Mr. Sattar's home, to show his knowledge about Bin Laden.
18 And one final point -- I'm sorry -- there's actually
19 also evidence that Mr. Sattar prepared a translation of the
20 shorter of the two indictments.
21 MR. TIGAR: Your Honor, on the day the jurors came in,
22 your Honor told them for the first time that the indictment is
23 not evidence of anything; it is simply a way that someone is
24 brought to court. Now, however, it is proposed that it is
25 evidence of Mr. Sattar's knowledge that Mr. Bin Laden was a bad
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1 guy. Unless of course the instruction is to be that it's
2 just -- not for the knowledge that Mr. Bin Laden has been
3 characterized by the government -- not even by the government,
4 because, of course, under GAF, the indictment's not the
5 government's speech -- is a bad guy.
6 I respectfully suggest, your Honor, first, as to
7 Ms. Stewart, the fact that she discussed an indictment of an
8 alleged Arab terrorist is no evidence against her for any
9 purpose. And the gossamer distinction the government wants to
10 have drawn here taxes the ability of jurors. And my
11 recollection is that one of the jurors has been on a grand jury
12 before. Maybe that juror didn't wind up serving -- it doesn't
13 matter.
14 That's the problem. And it's going to be the problem
15 again with introducing lawyer argument as evidence of
16 knowledge. And for that reason, your Honor, we object to it.
17 It's also objectionable, as I say, because the Bin
18 Laden evidence is difficult enough for the defense to deal with
19 without building a fence around it.
20 THE COURT: The parties are welcome to further brief
21 this for me, but at this point there's an insufficient basis
22 for the admission of 2065 and 2071. They are charges. The
23 indictment is simply a charge. And so, having the charges is
24 knowledge that there are charges out there.
25 Now, that hasn't been linked to the mental intent,
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1 state of mind, for the charges at issue in the case, and the
2 existence of an indictment, which has both of these, which have
3 broad-ranging charges, which go beyond simply a connection to
4 the evidence in this case with a connection to Bin Laden, and
5 all of the other information with respect to Bin Laden, which
6 is alleged in the indictment, raises at this point a fair
7 objection on 403 grounds because the relevance of the charges
8 in the indictment to the specific states of mind at issue would
9 be outweighed by the danger of unfair prejudice, which is the
10 jury taking this for purposes for which an indictment should
11 not be taken. Even putting to -- which is the legal 403
12 problem that is at issue with receiving in evidence indictments
13 in another case which are simply charges.
14 Now, I said that's my position at this point. It's
15 unclear what the evidence of what the defendants themselves
16 discussed will be. From what I hear, those discussions may be
17 sufficient in and of themselves without any extraneous evidence
18 to explain what it is that's being discussed.
19 So at this point, there's an insufficient basis for
20 the admission of 2065 and 2071.
21 You're welcome, by the way, to give me any cases on
22 the admissibility of indictments in other cases as notice of
23 something or a state of mind in a different case.
24 Which leads me then to 2015A through F, the
25 government's summation and the rebuttal summation. Stewart and
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1 Yousry object on the grounds of relevance, it's attorney
2 argument, 106. In Crawford -- I don't see any Crawford issue.
3 106, I assume is an argument that if we put in yours,
4 you have to put in ours.
5 I'm prepared to listen to the parties. I have a view.
6 I take it from the government's chart that the
7 summations are -- well, rather than to -- I'm perfectly happy
8 to listen to the parties on this.
9 MR. BARKOW: Your Honor, I think the Court stopped
10 itself before it said what our position was, but I think the
11 Court does understand our position. I don't have much to say
12 about these exhibits. They're offered to show the knowledge of
13 a listener of what was said. I don't have much more to say
14 about the point, and we're willing to hear the Court's view on
15 this.
16 THE COURT: All right. Defendants want to be heard?
17 MR. TIGAR: Would it be helpful to know your Honor's
18 preliminary views so that -- do you think it would save time?
19 THE COURT: I think it would. I think it would. At
20 this point, I would exclude 2015A through F. They are the
21 government's summary of the evidence, so they are two steps of
22 hearsay. The government's saying what the evidence in the case
23 showed in order to explain --
24 MR. BARKOW: Your Honor, we'll withdraw the offer of
25 those exhibits at this point.
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1 THE COURT: Okay.
2 MR. BARKOW: To save the Court time.
3 THE COURT: Okay. That leaves only my -- the limiting
4 instructions that I would intend to give on the three exhibits,
5 2040, 2077 and 2079. And then the question for the government,
6 which is on 2057 and 2070. Is there a reason to deal with
7 those at this point or not?
8 MR. BARKOW: Your Honor, all I would say about these
9 exhibits is I don't think there's anything -- with respect to
10 these exhibits in particular -- I don't think there's anything
11 in the calls, for example, which is the bulk of our proof,
12 that's going to shed more light on these two exhibits.
13 THE COURT: Well, the only thing is, the results of
14 the Stewart and Yousry searches, and what, if any, additional
15 light that may shed on the admissibility of those two exhibits,
16 both in terms of admissibility and purposes for which they're
17 offered; and the parties against whom they're offered, the
18 purposes for which they could be considered.
19 So that's the question. I was -- when I got the
20 government's letter, I did have a question in my mind as to
21 when -- and again, these things happen -- but when there was --
22 in terms of the order of the evidence, when there was no
23 available evidence for this afternoon, I asked myself,
24 particularly when I got the government letter, What happened to
25 the Stewart search? What happened to the Yousry search? All
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1 of which are independent of the telephone calls and the prison
2 visits. But the question, immediate question, is whether this
3 is an issue that should be decided now. Of course, documents
4 could be admitted for some purposes and could be admitted for
5 additional purposes subsequently.
6 MR. BARKOW: I guess all I would say with respect to
7 these two: The government's position is not going to change
8 with respect to these two. We're not going to seek to offer
9 them for additional reasons or purposes. 2070 and 2057T.
10 Other than to prove, as we discussed, the Count 2 conspiracy as
11 a predicate for Counts 4 and 5. We're not going to be seeking
12 to offer 2057 and 2070 for more purposes. So if the Court
13 wants to wait and see how the other evidence comes in, you
14 know, obviously that -- that's the Court's province. We don't
15 anticipate the government taking additional positions or making
16 additional arguments on other theories of admissibility with
17 respect to those two exhibits.
18 So -- but the Court will see how the Stewart and
19 Yousry search evidence unfolds. We tried to pull out some of
20 the most important exhibits for that in my letter of last
21 night. But those searches I can't speak to in too much detail
22 because I'm not handling those two searches. But they are not
23 ready yet to be presented in trial, so....
24 THE COURT: That argument surprises me a little
25 because I would have thought that if one of the purposes of the
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1 offer of the exhibits is for the state of mind of Mr. Sattar,
2 certainly one of the purposes, if the same documents were found
3 in Ms. Stewart's office, an additional purpose would be for the
4 state of mind of Ms. Stewart.
5 MR. BARKOW: Correct, your Honor. But the documents
6 aren't identical. I guess that's the difference. The
7 documents that were found in Ms. Stewart's office are in
8 substance similar, but they're not the identical documents. So
9 we wouldn't then say that Ms. Stewart knew about the tape in
10 Mr. Sattar's residence itself or knew about the contents of the
11 transcript of that tape. Because -- and likewise, with respect
12 to what's found in Ms. Stewart's search or the search of
13 Ms. Stewart's office, we wouldn't say that the document which
14 was Attachment A to my letter would have been known by
15 Mr. Sattar. But the substance of the different documents is
16 similar. But the actual documents are actually distinct.
17 So....
18 THE COURT: Okay. That helps me.
19 All right. Anything else?
20 MR. TIGAR: No, your Honor.
21 THE COURT: Why don't you -- do you want to pick up
22 with documents on Monday morning or will you be doing something
23 else on Monday morning?
24 MR. MORVILLO: The government's first witness next
25 week is going to be Scott Kerns from the FBI who is the witness
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1 who's currently on his honeymoon and is returning. We're
2 hoping to have him fully prepped and ready to go by first thing
3 Monday morning. It depends on his jet lag and a variety of
4 other factors, collecting 3500 material, turning it over
5 timely. But we anticipate that he should be in a position to
6 testify first thing Monday morning. At the latest -- we think
7 Monday afternoon. So we may start Monday morning with some
8 more documents.
9 THE COURT: The remaining documents from today plus
10 these?
11 MR. MORVILLO: Or --
12 MR. BARKOW: Yes, your Honor, or some other things
13 that we're assembling that we're in discussion with counsel
14 about.
15 THE COURT: All right.
16 MR. TIGAR: We, of course, will wait to see whether
17 Mr. Kerns gets back and is available. It was Mr. Kerns'
18 unavailability that the government has said makes it unable to
19 comply with the Court's direction that we get originals or
20 copies of what's actually on those eight millimeter tapes. So
21 we've seen nothing in any of -- in response to any request that
22 we have made.
23 We have made additional requests that -- to which the
24 government has not yet responded, because we asked them first
25 before we brought anything to the Court.
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1 THE COURT: I appreciate that.
2 MR. TIGAR: But we, as I say, remain hopeful, and the
3 only reason I raise that -- it's not to criticize the
4 government. I know Mr. Kerns isn't here. But if he's tendered
5 to us to cross-examine before we have had a fair opportunity to
6 review the materials that we think we need, then I can only
7 signal to the Court and the government that we may ask that the
8 cross be delayed, adjourned, or however --
9 MR. BARKOW: And he would be available. He's not
10 going anywhere again. He is the one who is going to be
11 hopefully putting together the items responsive to their
12 requests. And he works in New York. So he is not -- when he
13 gets back, he will be in New York and he will stay in New York.
14 THE COURT: Okay. I should also urge that you -- that
15 you have alternative plans should there be a request for some
16 sort of an adjournment after the direct or if there's a need
17 for additional documents or the like. Because we really
18 shouldn't have down time when the jury expects to sit. And I
19 had made the point that I thought between agreements and
20 stipulations and sort of the most efficient way that all of the
21 initial witnesses were going, that the case was going with, you
22 know, reasonable expedition --
23 MR. MORVILLO: Your Honor, we didn't think, based on
24 the way things were going, that we would have a problem filling
25 today. But with stipulations and less cross-examination of
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1 some witnesses and faster directs, we were able to eliminate
2 some time, which left us with this quandary.
3 I should say, though, with respect to filling other
4 time, next week, we do have some options. Because Mr. Kerns is
5 sort of the gatekeeper with respect to the reportings that
6 comprise the bulk of the evidence in this case. And what would
7 follow Mr. Kerns are the translators who compiled the
8 transcripts. And once they testify, we would be in a position
9 to have a vast majority of our transcript evidence prepared and
10 ready to read to the jury.
11 So we were anticipating that that would progress next
12 week, and that by the middle of the week, we would have
13 transcripts to read to the jury.
14 The Yousry search materials and the Stewart search
15 materials, there are massive amounts of documents in both.
16 We're trying to coordinate translations of many of the
17 materials so that it can be presented in an orderly fashion.
18 Additionally, with respect to the Stewart search materials, as
19 your Honor knows, there was a wall, and getting the original
20 documents matched up with the copies that have come over the
21 wall is logistically difficult, but we're working towards that.
22 I'm just not sure that we'll be able to throw one of those
23 search witnesses on to the stand early next week in the event
24 that there is a delay due to document requests or a request for
25 a continuation of the cross-examination of Mr. Kerns. We will
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1 certainly try to make arrangements for other witnesses to be
2 available, but there are not that many other witnesses
3 remaining for the government.
4 MR. TIGAR: I am applying what I thought were the
5 legal principals undergirding the admissibility of the
6 electronic surveillance evidence July 25th, 2003, including
7 observations with respect to file retention, file compression,
8 authenticity, originality and relevance, so I don't expect to
9 be raising any legal issues that were outside what I briefed
10 then in a later memorandum in September.
11 At some point, we will argue to the Court in very
12 compact form what we think the evidence trail has been. But I
13 want to be clear, that's -- those are positions we will take,
14 and we will seek, of course, the opportunity to develop our
15 record fully so the government is not -- I don't want them to
16 say that we misled them somehow as to what we were intending to
17 do here: Proof by clear and convincing evidence.
18 MR. MORVILLO: Your Honor, I didn't mean to --
19 THE COURT: I'm sorry?
20 MR. MORVILLO: I said, I didn't mean to imply
21 otherwise, your Honor.
22 THE COURT: All right. See you all at 9:00 on Monday
23 morning.
24 (Adjourned to Monday, July 12, 2004 @ 9:00 a.m.)
25 oOo
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1 GOVERNMENT EXHIBITS
2 Exhibit No. Received
3 2086T-A . . . . . . . . . . . . . . . . . 3321
4 2045 and 2045T . . . . . . . . . . . . . 3322
5 2044 and 2044T . . . . . . . . . . . . . . 3331
6 2047S . . . . . . . . . . . . . . . . . . 3332
7 2049S . . . . . . . . . . . . . . . . . . 3333
8 2000T . . . . . . . . . . . . . . . . . . 3333
9 2058T . . . . . . . . . . . . . . . . . . 3334
10 2058T . . . . . . . . . . . . . . . . . . 3334
11 o 0 o
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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