13 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 21 of the proceeding and Day 12 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 ------------------------------x
2
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 13, 2004
10 9:15 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
13
13 District Judge
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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
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated. All
4 right.
5 First, I reviewed the documents and my notes of the
6 direct. I have also considered the colloquy relating to the
7 documents as to which there was an issue and conclude that the
8 documents do not relate to the subject matter of direct. I
9 have sealed a copy of the documents so that they are available
10 for review, and I am returning a set to the government. I
11 don't know if I was provided with the only set or not.
12 So at this point the testimony of the witness is
13 concluded. However, an issue was raised as to whether any call
14 on the trial DVD was in fact one of the calls retrieved by the
15 consultant. The witness did not believe so. The government
16 represented that it covered the issue with the witness. The
17 government should check again with respect to the calls on the
18 documents that I have now sealed, whether any of the calls on
19 the trial DVD are listed as a call reflected in these
20 documents.
21 All right.
22 MR. TIGAR: We would move in the alternative, your
23 Honor, for production of the documents that your Honor has
24 reviewed for Jencks purposes. We could issue a subpoena for
25 them under Rule 17(c). They are evidentiary in character being
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1 business records of the government, which is our belief, at
2 least the chain of custody and other information. They are
3 relevant to the issues now being tried and there does not
4 appear to be any reason within my recollection of the Ouzry
5 standards why they would not be reproducible to us on that
6 ground.
7 THE COURT: All right, Ms. Baker.
8 MR. BAKER: Your Honor, as you just directed, the
9 government will review or ask the witness to review the
10 documents again to see whether the tapes that he took to
11 Minnesota resulted in any of the recordings on the trial DVD.
12 If they do not, I do not see the relevance of the documentation
13 to any issue on trial.
14 THE COURT: I agree with that. You are welcome to
15 issue a subpoena if you wish and argue it out over the
16 subpoena. But based upon everything that I have seen, and my
17 further direction to the government, I don't see the relevance
18 of that with respect to the calls on the trial DVD.
19 MR. TIGAR: Your Honor, we will at the appropriate
20 time issue a subpoena.
21 At some point we are going to argue the applicable
22 Second Circuit law here, or I hope we will. Our request is
23 based on what I understand to be the Tropeano standard about
24 the admissibility issue writ large and not the specific one.
25 But I can't --
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1 THE COURT: Well, here we are now and I actually
2 called you in early to deal with exactly that.
3 Government Exhibit 1000L is in evidence, right?
4 MR. BAKER: Yes, your Honor.
5 THE COURT: All right.
6 The government has now offered Government Exhibits
7 1000 and 1015, and the parties wanted to be heard on that. So
8 the government has offered them and the defendants, I take it,
9 object. So I will listen to arguments.
10 MR. TIGAR: Your Honor, I am sorry, but should the
11 proponent argue first or the opponent?
12 THE COURT: Well, the government --
13 MR. TIGAR: They have the burden.
14 THE COURT: All right, I will listen to the
15 government.
16 MR. BAKER: Your Honor, the government elicited what
17 it believes to be sufficient foundation testimony from Michael
18 Elliott and Scott Kerns and on that basis offers the exhibits.
19 It seems to me that if Mr. Tigar has an objection he should be
20 required, as far as common sense and orderly proceeding, to
21 explain the nature of his objection.
22 THE COURT: Let me ask you one question.
23 MR. BAKER: Sure.
24 THE COURT: I have listened to the testimony. I have
25 considered the testimony. I have considered what was said in
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1 the motion in limine.
2 One of the proffers is that there are telephone
3 records, am I correct?
4 MR. BAKER: Yes.
5 THE COURT: Do the telephone records correspond to
6 each of the calls on the trial DVD?
7 MR. BAKER: Your Honor, we are currently in the
8 process of having a chart prepared that reflects an analysis of
9 the telephone records. I am doubtful that the telephone
10 records will corroborate each call on the trial DVD because,
11 for example, certain calls are placed by calling card and so
12 Mr. Sattar dials a local number for a calling card company but
13 then when he is actually reaching one of the IG leaders in
14 Egypt or wherever it is, the further call goes on through the
15 calling card company and the government has not yet obtained
16 the calling card company records but is seeking to do so.
17 Moreover, many of the calls are incoming calls and, as
18 I am sure your Honor is aware, on hard line, regular
19 telephones. Mr. Sattar's telephone records, which are the
20 primary ones that we have, do not reflect incoming calls. On
21 the other hand, they do reflect that there are not any outgoing
22 calls at the time that the system is intercepting incoming
23 calls but with the following exception: That is, there are
24 occasions when Mr. Sattar receives an incoming call from one IG
25 lead or associate and the telephone records would not reflect
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1 an incoming call but, then, very shortly thereafter, as the
2 recording would indicate, he would turn it into a conference
3 call by placing an outgoing call, either directly or through a
4 calling card, to a third party and the outgoing call is on the
5 telephone records at least as far as calling out to the local
6 number for the calling card company.
7 So the government believes that its analysis, which is
8 still being finished and put into some comprehensible format,
9 will show overall that the recordings coming in as made by the
10 system are accurate based on a significantly statistically very
11 large percentage of the calls, although I cannot say now to
12 your Honor that it's every call that is on the trial DVDs.
13 THE COURT: Okay.
14 Mr. Tigar.
15 MR. TIGAR: Because, your Honor, yesterday you said
16 something tentatively about Second Circuit law and the McKeever
17 case, I want to start with the law, and I will start with the
18 case that Ms. Baker sent you last night, United States v.
19 Knohl. On Mr. Knohl there was one tape recording, three
20 parties to a conversation -- Brodsky, Fuller, Knohl. Two of
21 the three parties were witnesses for the government and said,
22 oh, yeah, that is ours.
23 The only difficulty was that the original tape had
24 been lost by the private person who made it, a person with no
25 duty towards the litigation system to maintain it, but before
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1 that happened the FBI, putting one tape recorder next to
2 another in a familiar old procedure, managed to copy the tape.
3 The discussion of the original writings rule is
4 probably irrelevant because analogue tapes are probably not
5 documents and, in any case, it's superseded by the rule. To
6 the extent the court says that the original writings rule
7 simply ceases to exist at some point, of course that is
8 overruled by the rules.
9 What is interesting about the tape is that no fair
10 question was raised about the reliability of the copying
11 process and the court specifically noted "no contradictory
12 evidence was offered by the defense except what was brought out
13 on cross examination." That is at page 440. We have by
14 contrast sought, now pending 7 or 8 items, and I will get to
15 those, which our experts need in order to evaluate significant
16 gaps in the way in which these digital files, which are
17 original writings, were handled.
18 Now, of course, our problem is complicated by the fact
19 that we all know, because of our daily lives, how computers
20 work. However, the fact that we might all know that does not
21 excuse the government from presenting evidence.
22 As the Ninth Circuit held in United States v. Lewis,
23 833 F.2d 1380, a district judge's personal knowledge of an
24 event is no substitute for the presentation of evidence. That
25 was a case in which Judge Schwartzer found that taking certain
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1 drugs influenced your ability to respond to FBI inquiry.
2 And so now we turn to Judge Kearse's opinion for the
3 Second Circuit in Tropeano. In Tropeano there was no fair
4 question as to the authenticity really of the tapes because the
5 brokers who were -- have I got the right case here?
6 Because I believe Tropeano is the case in which the
7 other parties were actually available to testify. A more
8 recent decision of the Second Circuit, however, that is
9 critical here is United States v. Hamilton, which deals with
10 the admissibility of tape recordings. And that is an opinion
11 by Judge Kearse at 334 F.3d 170 and the part we are looking at
12 begins at 186.
13 Judge Kearse does say that the McKeever test is no
14 longer to be strictly followed. But the only part of it she
15 says you are not to follow is the no-inducement part, which is
16 of course irrelevant to an admissibility decision. In large
17 measure she reaffirms the McKeever test, including the most
18 important part, and this is the only part we really need --
19 clear and convincing evidence.
20 There is no other admissibility decision in the
21 Federal Rules that I know of that requires proof of clear and
22 convincing evidence. And, in any case, in Tropeano and in
23 Hamilton, as in Capanelli, the universe of recordings was
24 relatively small. There was no fair question about copying.
25 In Campanelli there was a digital recording device,
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1 apparently similar to the standard telephone answering machine
2 digital chip. From time to time the FBI would copy information
3 off this digital recording device. Thus, there was no question
4 raised that the copies were copies of digital files that had
5 once existed.
6 THE COURT: Why should the volume of recordings
7 increase the question with respect to the authenticity and
8 reliability -- well, authenticity and accuracy of the
9 recordings? These are telephone records. The cases indicate,
10 among other things, that when the jury considers issues of
11 reliability, the jury looks at what was said in the course of
12 conversations. They see if there is discontinuity. They look
13 at whether there are gaps. They make determinations with
14 respect to such things as whether there is evidence of
15 skullduggery or tampering.
16 Here there is a reasonably large volume of recordings
17 that, if admissible, the jury would hear. The arguments with
18 respect -- and unlike some tape recordings, they receive some
19 support from the telephone records themselves that there were
20 telephone calls going on at this time.
21 The argument, on the contrary, is that for some period
22 of time there are people either impersonating Arabic speakers
23 or interposing or otherwise interfering with the conversations
24 to the degree that they are no longer authentic or accurate.
25 Why does the volume of the conversations count against
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1 the initial determinations of authenticity and accuracy?
2 MR. TIGAR: The importance of volume, your Honor, is
3 only this: That the government had all of these
4 electromagnetic tapes and converted them to MO systems or to MO
5 media. That was a massive copying project. It involved file
6 conversions. We already have experience with one file
7 conversion that the government did in connection with
8 discovery. They goofed it up.
9 And as far as our contention, we are not saying that
10 somebody impersonated an Arabic speaker. I don't know where
11 that concept would come from, your Honor. The question is the
12 integrity of these files. And what I want to show now, having
13 cited the cases, is the factual scenario we have here which is
14 unlike any factual scenario in any case cited by the government
15 or by any party to this proceeding.
16 Each diskette you have, each DVD, your Honor, has
17 multiple files on it. Those are VOC files. Each file is
18 divided into two parts and the evidentiary question must also
19 be divided into two parts. The first is the SRI or
20 signal-related information. You can open any given file on
21 that DVD, a copy of which has been provided to your Honor, with
22 a notepad file. In notepad, a Microsoft Word file, you will
23 read the signal-related information.
24 I took one this morning and looked at it and of course
25 Government Exhibit I think it's 1000N does contain the header
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1 information on the file, a file, that one that I was asking the
2 witness about. If you scroll down to the end of that file you
3 will get the footer information.
4 Looking at the first file on the only diskette, the
5 only DVD that I have this morning with me, which is, if you
6 will give me a moment, 1300, the one not yet offered but it's
7 for illustrative purposes, I looked at the SRI, your Honor, and
8 the SRI there says that the creation time on that file is
9 19860822, 1986. Yet the call time is a 20000321, et cetera,
10 call time.
11 The government has not established that the header and
12 footer information was made and kept in the ordinary course of
13 the FBI's business and that the entries thereon were made at or
14 about the time of the event by a person with personal
15 knowledge. Indeed, the evidence is to the contrary, that the
16 SRI information was transmuted over time by people without
17 personal knowledge as file formats were changed. But now let
18 us go to the contents of the calls themselves.
19 By the way, each and every one of these calls that is
20 offered on a given DVD has this SRI header and footer
21 information, and the answer might be different as to each one.
22 But there has been no foundation. I tried to introduce a
23 document yesterday, no foundation said the government, and the
24 court sustained objection.
25 But let's look at the calls.
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1 The process began in 1995. It began with the
2 telephone company or cellular provider giving its facilities.
3 I guess there was no cellular provider back in 1995. That
4 happened later. There has been zero evidence, by the way, your
5 Honor, about the technical ability of cellular providers to
6 give information. There has been some evidence about telephone
7 company bridging devices which is a pretty simple system. It
8 has been in operation since the 1930s when the Congress for bad
9 wiretapping in the Communications Act of 1934.
10 Then the calls were acquired beginning in 1995. They
11 were put on a Lockheed Martin hard drive. Every single one of
12 those telephone call files has been destroyed. They don't
13 exist. There are no originals with respect to any Lockheed
14 Martin file. The Lockheed Martin system then compressed the
15 files in a 4 to 1 format. We have sought, and a pending order
16 for it for now 13 days, one of the second generation files or
17 more on the electromagnetic tapes, just one or two or three,
18 that we could subject to testing to find out what the
19 compression system was, if we could, and whether it lost data.
20 I don't mean impersonating Arabic speakers, your
21 Honor, I mean lost data. I mean guarantees of reliability. I
22 mean the difference between cat, sat, at, that, and bat. I
23 mean the beginnings and ends of calls. I mean the things that
24 make up a conversation because nobody could remember. And here
25 the relevance of the massiveness of the surveillance is also
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1 important, your Honor. I can't remember all the calls I had 8
2 years ago.
3 The very problem with wiretap evidence, your Honor, is
4 its ubiquity. That is why the Supreme Court in Berger against
5 New York held New York's law unconstitutional. That is why
6 some of us thought that maybe even Title III wouldn't pass
7 muster because it was a general warrant. But, anyway, now we
8 have item 2, the electromagnetic tapes. They are in an unknown
9 format. Those are stored. According to Mr. Kerns nobody
10 checks them, nobody looks at them to make sure that they are
11 being stored in a reliable way.
12 Now, this time period is very important. What goes
13 missing? This is the global authenticity decision. September
14 29 to October 2, '95, everything is gone and yet that was the
15 very time when Mr. Sattar, the paralegal, and Ms. Stewart, the
16 lawyer, would be talking about the legal measures taken to deal
17 with the jury verdict that had just come in, and it's gone --
18 gone.
19 Nobody looks.
20 Now, I am going to skip ahead now. The original
21 writings rules, Rule 1004, tells us what the government has to
22 do -- what the proponent has to do. It says that if the
23 original is not obtainable -- it's a secondary evidence rule --
24 then all originals are lost or have been destroyed unless the
25 proponent lost or destroyed them in bad faith. Right? That is
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1 the rule.
2 What is bad faith? Well, we don't have to go far.
3 Judge Scheindlin has dealt with bad faith, spoliation.
4 Remember, we are not seeking a sanction here. We are dealing
5 with admissibility. And in Zubalake, Judge Scheindlin
6 identified the duty to retain documents as attaching when
7 litigation is anticipated. I mean, that is a common standard
8 and we can cite to your Honor Art Matthew's article about SEC
9 inquiries. That is something with which everybody in this
10 courtroom is familiar.
11 When does the duty attach? Well, the duty attached
12 when they started because they were already litigating. They
13 were already litigating with Sheikh Abdel Rahman, with
14 Mr. Sattar present as paralegal, with Ms. Stewart as counsel.
15 They were already doing it.
16 Litigation became apparent again in a renewed form in
17 1997 when Mr. Fitzgerald either did or did not go to the
18 meeting. The meeting that was called by Ms. Hawk that was
19 testified about was a meeting at the FBI and Ramsey Clark had
20 already filed a lawsuit about the sheikh's prison conditions.
21 There were perceptions of danger from the Sheikh's continued
22 incarceration in the United States and Mr. Fitzgerald's
23 reaction was what? Let's subpoena Ramsey Clark's phone
24 records. That is litigation, your Honor. You can't get phone
25 records without litigation.
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1 So that the prospect of this investigation, all of the
2 money put into servers and documents and FBI agents running
3 around, all of that is going on. Yet, is he here today? No,
4 he is not. Agent DiNapoli -- Mr. Napoli was here. Mr. Napoli
5 is an agent on this case. He was an agent on the sheikh's
6 case, the continuity. Mr. Fitzgerald was the prosecutor there
7 and a witness here.
8 So the faith argument is important and the duty had
9 arisen by the time those electromagnetic tapes were put in a
10 drawer, or wherever they were put, after the original files had
11 been destroyed. Then the government at some point takes those
12 EMTs and writes them to an UNIX platform with an unknown
13 program. Once again, your Honor, in line with the Knohl case
14 where we are not satisfied just to do cross examination, I have
15 asked for the program; that is, I want to know if there is data
16 lost that is involved in the transmutation from the compressed
17 file to a VOC format. We know there has been data lost in
18 other transmutations.
19 And, your Honor, if this were a piece of paper, if I
20 showed up and said, your Honor, I printed out this piece of
21 paper. It's from a file that goes back to '96 in my computer.
22 It's actually been through a compression of an unknown kind. I
23 did destroy the original file. I don't know whether my
24 compression loses today data or not. I don't know where the
25 file has exactly been and, by the way, I changed over from UNIX
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1 to Windows at some point but, your Honor, I have somebody
2 without personal knowledge who says it's okay.
3 I don't think that piece of paper is coming in, your
4 Honor. But this is not the end of that story. They reflated
5 these files into VOC files.
6 Now, I will tell your Honor that there are several
7 different VOC formats. When we received the discovery VOC
8 material there were two such formats in operation. There is a
9 version of VOC on the headers of some of these things. So
10 there may have been other changes. But we do know they were
11 uploaded, changed, and put on MOs. And then your Honor heard
12 the testimony. The MOs were on a hard drive. They were loaded
13 onto servers, back from the servers and back into the hard
14 drive onto DVDs. And in each stage the file was saved.
15 At some point it was changed from an UNIX platform to
16 a Windows platform but no one has testified that conversion
17 from a Windows an UNIX platform is reliable. And 1000L, which
18 is the list of all the things they want to introduce, says date
19 modified as to each file, and those dates are 2004.
20 Your Honor, I ask the court to take judicial notice
21 or, if it's thought to be improper, we can all sit around my
22 computer and I will show you some files on my directory that go
23 back to '96. And every time I open those files if I save them
24 back without changing them Windows will keep the same date and
25 time of my original file and I will know when I created it.
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1 But if I make a change of any kind, I change format, I add
2 something, I take something away, Windows will -- the program I
3 use -- will save it and give it the new date and time in the
4 internal clock of my machine. Nobody has accounted -- nobody.
5 There is complete silence on this evidence about why a file
6 that is purportedly unchanged as to its content should come to
7 court with a file modified date of 3 months ago. There is no
8 explanation for that. None.
9 Now, unlike the Knohl people, we can put a witness on
10 the stand once we get this stuff. And we can explain exactly
11 how that it is.
12 Now, I tried yesterday after agent what's his name,
13 Kerns, said if anybody changed a file they would be fired and
14 prosecuted. So we are supposed to believe that could never
15 happen.
16 Well, your Honor, this is the New York field office.
17 They use rewritable media. They don't have an audit trail.
18 Nobody testified to the existence of any simple system that
19 says now I took the file, now I am using it, now I am putting
20 it back, it hasn't been changed. The evidence, indeed, is to
21 the contrary because we keep having these file-modified dates.
22 Your Honor, that testimony about what would happen to Agent
23 Kerns, who is a very honorable person, no doubt, if he did
24 something wrong is interesting but uninformative. I tried to
25 ask him about that and objections were sustained. That is
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1 fine.
2 Does your Honor recall -- does anybody recall who was
3 head of the technical surveillance unit of the New York field
4 office from '85 to '92? It was a KGB spy, your Honor. His
5 name was Phillip Hanson and he had access to all the files and
6 he sold them to the Soviets. And then he went to Washington
7 and from '99 to 2001 he systematically accessed computer data
8 and sold it to the East Germans. That is the security system
9 in place, your Honor.
10 Unlike Tropeano, unlike Hamilton, unlike Brodsky,
11 where chains of custody and the reliability of each person who
12 handled the data is established, there simply is no burglar
13 alarm in place in the computer system at the FBI.
14 Now, I have dealt here with the Lockheed Martin system
15 but the Raytheon system had its own data failures. We have
16 seen those. We have heard about those. The MOs for that are
17 rewritable. So what do we have, your Honor? The originals are
18 gone. The government refuses to produce any evidence
19 whatever -- zero -- that would permit me to make a substantive
20 showing of file alteration despite the fact that I have
21 repeatedly represented in good faith that I have got experts
22 out there and that I can use this stuff and I need this stuff
23 for the authenticity hearing. And now they want to say, well,
24 I don't have time to produce what the court ordered us to. I
25 just have time to move to put these in evidence right now.
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1 Well, I don't think that is fair. Ultimately, your
2 Honor, I don't think that is fair. And for that reason I
3 suggest that the issue is premature, that the facts do not
4 establish authenticity and that if your Honor believes that a
5 prima facie case has been made, that because of the unique
6 character of the clear and convincing evidence determination I
7 am entitled, as a matter of Rule 104 and due process, to go
8 forward and present the evidence that I would like to present
9 on this issue after the ordered production has taken place.
10 Now, I understand that we are under some time
11 pressures here. Everything I have said this morning, excluding
12 only a few references to the testimony of witnesses, I said on
13 September 25, 2003. And, therefore, it seems, respectfully, to
14 me, and I understand why your Honor ruled as you did about a
15 pretrial hearing, but, you know, one thing about due process is
16 that takes more time than other kinds of processes.
17 And that is our position.
18 THE COURT: All right. Ms. Baker.
19 MR. BAKER: Your Honor asked Mr. Tigar early in his
20 argument why the large volume of files or recordings at issue
21 here should count against admissibility and I would like to
22 start by arguing that actually the large number of files here
23 counts in favor of admissibility.
24 The implicit theme of all of Mr. Tigar's argument is
25 that there was some sort of bad faith, deliberate destruction
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1 of or tampering with evidence here on the part of the FBI,
2 because if that is not what he is implying, if instead what was
3 happening was the FBI was making good faith efforts to maintain
4 the material properly, to maintain it in forms that were
5 essentially duplicates for purposes of the Federal Rules of
6 Evidence or that are otherwise satisfactory under the best
7 evidence rule, then his various points as to spoliation and the
8 fact that certain files may not be retrievable at this point,
9 those points lack the relevance, unless he is using them to try
10 to further some sort of argument that there was bad faith or
11 otherwise less than appropriate care here.
12 And the fact that the total universe of recordings was
13 approximately 85,000 and the fact that the government
14 ultimately seeks to introduce into evidence at this trial
15 something between 150 and 250 files argues in favor of the
16 admissibility because it is simply not conceivable for any type
17 of deliberate tampering to have occurred on such a large scale
18 with such a great number of files, and I would say that
19 particularly in light of the testimony of Agent Kerns
20 yesterday, and, remember, Agent Kerns was the primary person
21 who was responsible for retrieving the relevant files for use
22 at this trial and putting them on the trial DVDs.
23 He testified that with the exception of very few
24 recordings, and in those very few instances not even
25 necessarily the entire recordings, that other than that he had
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1 not listened to the recordings.
2 And he testified that at many of the stages in the
3 process by which the recordings ended up on the DVDs, it wasn't
4 possible to listen to the recordings; that as far as he knew
5 other people involved in the various stages of the process had
6 not listened to the recordings.
7 He also testified that the FBI's New York office
8 doesn't have the technological capability to alter the audio
9 contents of the recordings. So in light of all of those facts
10 and aspects of his testimony, and in particular the fact that
11 he said that even as he sits here today he doesn't know which
12 particular recordings, if any, on the trial DVDs relate to
13 which particular defendants, if any, here on trial, the
14 scenario that there was some sort of intentional destruction,
15 spoliation, tampering, anything along those lines going on
16 here, is simply implausible and belied by all of the evidence.
17 And so the large number of files at issue here is actually a
18 fact in favor of admissibility in this case.
19 Now, to address some of Mr. Tigar's specific points,
20 first of all, Mr. Tigar was questioning or taking issue with
21 the signal-related information in each of the files.
22 Let me start by just correcting a reference that he
23 made. He was citing the printed example of the signal-related
24 information from one of the files that has been received in
25 evidence. I heard his reference as a reference to Government
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1 Exhibit 1000N, which is not correct. It's actually 1001N. And
2 Mr. Tigar indicated or, as I understood it, he was indicating
3 that he thought that that document was only the header, the
4 signal-related information at the top of the file, but then he
5 also made reference to other information at the end of the
6 file, the footer.
7 In fact, Government Exhibit 1001N is a 4-page document
8 that includes both the header and the footer signal-related
9 information from that one particular file. And just to make
10 sure that the court understands and that the record is totally
11 clear, this particular example of the signal-related
12 information is from the very first recording on the trial DVD,
13 which the DVD is marked as Government Exhibit 1000, but that
14 first particular file which is on there is itself marked
15 Government Exhibit 1001 as is set forth on the top line of the
16 list of files where the list itself is Government Exhibit
17 1000L.
18 Mr. Tigar argued that there has been no showing that
19 the signal-related information was business record information
20 and there had been no showing that it was created at the time.
21 That is simply an inaccurate representation of the record. Mr.
22 Elliott specifically testified that as to each of the systems
23 at the very time that the system made the recording it saved
24 the signal-related information which included the date and time
25 of the call and the telephone number on which the call was
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1 recorded. And he testified that that date and time information
2 in each instance came from the internal calendar and clock of
3 each system.
4 So that is information that was created at the time of
5 recording and that has remained associated with each recording
6 throughout its existence, throughout its copying from one
7 medium to another, or in the case of the Lockheed Martin system
8 from one format to another.
9 Indeed, when I asked Mr. Elliott about the conversion
10 process, he specifically explained that as part of the
11 conversion process the conversion software took the Lockheed
12 Martin file in its original proprietary format in which the
13 signal-related information was the first block and the audio
14 content was the second block, and the conversion software
15 separated those two blocks, converted each of those two blocks
16 into the correspondingly appropriate format for the Raytheon
17 VOC file, and then reassembled those two components into the
18 Raytheon VOC format, and that was the conversion process.
19 So the signal-related information was created
20 contemporaneously with the recording, has been there all along,
21 and remained unchanged through the conversion process.
22 Mr. Tigar also commented at one point that there had
23 been zero information presented regarding how interception
24 works regarding cellular telephones. First of all, the
25 government intends to introduce at this trial exactly four
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1 calls that were recorded as the result of a surveillance of
2 cellular telephone. Those are calls that involve Mr. Sattar
3 and an associate of his. They do not involve Ms. Stewart and,
4 in any event, again Mr. Tigar's representation of the record
5 was simply not accurate. Mr. Elliott testified by use of two
6 graphics, and the first graphic showed the traditional
7 telephone intercept methodology which was used in the past, and
8 in some instances is still used with wire-line telephones, and
9 that graphic was marked as Government Exhibit 1307.
10 He then testified that more recently, and particularly
11 in connection with cellular telephones, that there is a
12 switch-based system that is used to bring the telephone data
13 back to the FBI's office and he referred to a second graphic,
14 which is Government Exhibit 1308.
15 Mr. Tigar's primary issues are with the Lockheed
16 Martin system. Really, he has not raised any issue of any
17 substance with regard to the Raytheon system, so let me address
18 the Raytheon system quickly, first, and then I will turn back
19 to the Lockheed Martin system.
20 As to the Raytheon system, the files are originally
21 recorded in the VOC format. That is not a compressed format.
22 The files were recorded originally to the hard drive of the
23 system, archived onto magneto optical disks, and have been in
24 VOC format all along. What I just said was established through
25 Mr. Elliott's testimony and then Agent Kerns' testimony
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1 yesterday made very clear that every step along the way getting
2 from the Raytheon magneto optical disk onto the trial DVD, that
3 it was an exact copy every step of the way.
4 Let me jump ahead to something Mr. Tigar said later,
5 which is there was no evidence that there wasn't any alteration
6 or modification when the files went from an UNIX environment to
7 a Windows environment.
8 I grant that no one gave that testimony in exactly
9 those words. However, my recollection is, and the court can
10 certainly review the transcript, that I asked Agent Kerns at
11 every step of the copying process was the copy that was made
12 from the prior stage to the next stage an exact copy and he
13 said yes. And so that addresses that issue that in that
14 transition from a UNIX computer environment to a Windows
15 computer environment the evidence was not modified.
16 But going back to the Lockheed Martin system, which is
17 the primary system with which Mr. Tigar takes issue, the
18 government expects that today we will be providing to Mr. Tigar
19 on CD or DVD the copies of the Lockheed Martin recordings that
20 the government expects to introduce into evidence at trial in
21 their original proprietary file format. However, the court
22 does not need to wait for an analysis of those files to occur
23 in order to rule on the admissibility of the recordings on the
24 DVDs that the government has now offered for the following
25 reasons: The court can assume arguendo that when the Lockheed
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1 Martin system saved and compressed the recordings from the way
2 they originally came in over the telephone line, the court can
3 assume that data was lost in that compression. To use a word
4 that Mr. Tigar has previously used in argument, that that was
5 lossy compression.
6 Mr. Elliott testified that that compression was at a 4
7 to 1 ratio. Even if it was lossy compression, prior Second
8 Circuit case law analogously makes clear that the fact that
9 certain data was lost between an "original" conversation or
10 original sound that occurred and the recording or version of
11 the sound that the government is seeking to introduce at trial,
12 that that loss does not render the recording inadmissible but,
13 rather, it is a question of weight for the jury.
14 And in support of that I would cite the Knohl case,
15 which I cited in my letter to the court last night, because in
16 that case the recording that the government sought to introduce
17 had been, to use the words of the Second Circuit, filtered to
18 remove certain noise. So, thus, certain data, certain content
19 from what was actually audible when the actual conversation
20 took place had been removed purposefully from the recording
21 that the government sought to introduce into evidence.
22 And that is true in any case in which the government
23 intentionally has an audio file enhanced because as part of an
24 enhancement process there can be filtering to remove background
25 noise and there are various cases, and I don't have others here
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1 in front of me other than Knohl, but there are various cases in
2 which enhanced audio files have been received in evidence
3 notwithstanding that there is essentially purposeful loss of
4 information in those instances.
5 In addition, there are various Second Circuit cases
6 for the proposition that even where portions of recordings are
7 inaudible, meaning something that you could have heard if you
8 were standing there listening to the original conversation or
9 if you were a participant in the original conversation, that
10 that content simply is not available on the recording for
11 whatever reason, that that inaudibility of portions of the
12 conversation does not render the recording inadmissible.
13 And as one example of that line of cases I would cite
14 United States v. Arango-Correa -- which is ARANGO-CORREA --
15 which is reported at 851 F.2d 54, and that is a Second Circuit
16 decision from 1988. And I am referring specifically to pages
17 58 to 59 of that decision where the Second Circuit says, and I
18 am quoting, "The mere fact that some portions of a tape
19 recording are inaudible does not by itself require exclusion of
20 the tape. Unless the unintelligible portions are so
21 substantial as to render the recording as a whole
22 untrustworthy, the recording is admissible and the decision
23 should be left to the sound discretion of the judge."
24 And then there is a citation to various prior
25 decisions and then the court continues, "Our decisions in this
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1 area reveal a clear preference for the admission of recordings
2 notwithstanding some ambiguity or inaudibility as long as the
3 recordings are probative."
4 So those cases show that even where there are some
5 noticeably inaudible portions, recordings can still be admitted
6 and the enhanced tape cases or filtered tape cases show that
7 even where there has been purposeful removal of certain
8 content, that the recordings are still admissible. Here you
9 have facts which are less adverse to admissibility and so the
10 admissibility should be easier, more clear in this case.
11 Because here, even assuming arguendo the worst case
12 scenario, that the 4 to 1 compression done by the Lockheed
13 Martin system was lossy compression, that that was a computer
14 software application removing, according to some algorithm,
15 some amount of content. Mr. Tigar is more expert in this than
16 I but, as I understand it, essentially silence in between
17 speech, certain portions of the very loud portions of the
18 speech, things that would not affect the overall sound of the
19 conversation were it listened to by the human ear.
20 And I would only add as one last point to all of this,
21 the court is free in making this admissibility determination to
22 listen to any of the proffered recordings. There are a few
23 that are in English. Obviously the vast majority of them are
24 in Arabic. It's very clear from the English calls, but we
25 submit even from the Arabic calls were the court to listen to
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1 the recordings, they obviously sound like complete telephone
2 recordings. There is not any way that you can tell in
3 listening to them that any computerized automated process was
4 effected on them that in any way disrupted their content.
5 So although I understand Mr. Tigar has his outstanding
6 request for the original files -- and he will get them today, I
7 believe -- again, we submit that that is an issue that goes to
8 the weight of the jury. He can explore that at whatever length
9 he chooses in his case, but it should not be a deterrent to the
10 admission of the recordings into evidence at this time.
11 He later made some points relating to the nonexistence
12 of certain files. Obviously the nonexistence of certain other
13 files doesn't bear on the direct question of whether the files
14 that the government is offering have been sufficiently
15 authenticated.
16 The court has already ruled that the FBI's inability
17 to retrieve certain files should not result in the suppression
18 of all of the evidence. That was the outcome of the litigation
19 last year. And there is just not any articulable reason why
20 that issue should bear on the admissibility of these particular
21 recordings as opposed to being just an issue that Mr. Tigar can
22 argue to the jury later for whatever weight he thinks the jury
23 should give it in their overall consideration of the evidence
24 that the government has presented against his client.
25 Finally, one of his last points was what shows on
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1 Government Exhibit 1000L as the "last modified date" of each of
2 the files of the trial DVD.
3 Agent Kerns was very explicit in his testimony
4 yesterday that each step in the copying process resulted in an
5 exact copy being made; that he did not do anything to in any
6 way modify either the signal-related information or the audio
7 content of any of the files, nor to his knowledge, and within
8 what he saw happening, had anyone else done that and that he
9 believed that there would be very very severe consequences to
10 him or to anyone else were they to do anything like that.
11 The fact that he was not able to explain to Mr.
12 Tigar's satisfaction in words that Mr. Tigar would find
13 desirable the exact origin of that particular modified date is,
14 the government respectfully submits, outweighed by the clear
15 and unequivocal nature of his other testimony that the copying
16 at each stage was exact and that there was, in fact, no
17 modification.
18 So overall the government submits that through the
19 testimony of the two witnesses the authenticity of the files
20 has been established by clear and convincing evidence and that
21 under the Second Circuit and Southern District decisions in
22 Tropeano, in Knohl, in Campanelli, that all of the other issues
23 raised by Mr. Tigar are issues that bear on the weight to be
24 accorded to the recordings by the jury and that Mr. Tigar can
25 explore those issues to whatever extent he chooses in his case.
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1 THE COURT: All right.
2 MR. TIGAR: One, in the government's letter to the
3 court of July 10, at page 5, the government said that SRI was
4 entered into the system by agents. The only thing that was
5 entered by others was the date and time based on the internal
6 clock of the computer.
7 Now, therefore, all SRI, other than that, was done by
8 human beings. Then the SRI we have now reflects a VOC file but
9 it wasn't in VOC originally so it had to have been changed.
10 But significantly, your Honor, if the government relies on the
11 computer's internal clock and says that we must all be governed
12 by the internal clocks of all the computers, then none of this
13 evidence comes in because it was all created in 2004.
14 Second, a minor point, with respect to the cellular
15 calls in 1308 -- I have 1308 and it doesn't have anything to do
16 with cellular telephones, your Honor. It has a picture of it
17 houses with regular telephones in them.
18 Now to the main point.
19 Inaudibility doesn't destroy admissibility; that is,
20 if you record somebody's conversations over a long period of
21 time their inaudible words in an otherwise good recording
22 system because people spoke low or whatever, those cases have
23 nothing to do with this. The kinds of enhancement of which Ms.
24 Baker speaks, that is that old-fashioned business of using
25 filters to cut things out.
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1 We are talking, your Honor, about the digital age.
2 And, no, your Honor, I am not saying that someone snuck into
3 the FBI at night because it's not my burden to say it. The
4 purpose of rules of evidence, your Honor, is to exclude what
5 might turn out to be reliable evidence because the proponent
6 cannot meet certain standards that are designed to guarantee
7 the integrity of the system. And the key point of integrity
8 here is that when this surveillance began in 1995 everybody
9 knew what the stakes were in terms of human liberty. And they
10 adopted and maintained and kept, even for 2 years when they
11 wanted to phase out Lockheed Martin, a system that they knew
12 destroyed original files and placed them into a format where
13 despite the government's information, if I get them today,
14 neither you, your Honor, nor I, nor anyone, could plug them in
15 and play them without software manipulation. That is the
16 problem. And they don't have any cases that say that that
17 happens, your Honor. This is a first.
18 THE COURT: All right.
19 Anything further?
20 MR. BAKER: Your Honor, just on Mr. Tigar's last
21 point, the government submits that the Capanelli case squarely
22 addresses the issue of when you have something in the format
23 now which is not the same as the original format, because in
24 the Capanelli case the originals were digital chip recordings
25 and those recordings had been run through certain software to
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1 transform them into CDs or put them on audio tapes and the
2 original digital chips were no longer in existence.
3 THE COURT: All right.
4 I am prepared to rule.
5 It is well established in the Second Circuit that when
6 the government seeks to introduce tape recordings into
7 evidence, the government must "produce clear and convincing
8 evidence of authenticity and accuracy as a foundation for the
9 admission of such recordings." United States against
10 Hamilton, 334 F.3d 170, 187 (2d Cir. 2003).
11 In adopting this general standard, the Court of
12 Appeals has "expressly and repeatedly declined to adopt" the
13 "formal, 7-factor approach in the admission of audio recordings
14 as enunciated in United States against McKeever, 169 F.Supp.
15 426, 430 (Southern District of New York 1958), reversed on
16 other grounds, 271 F.2d 669 (2d Cir. 1959)" id. Therefore, "a
17 tape recording may be admitted in evidence when it has been
18 properly authenticated by evidence sufficient to support a
19 finding that the matter in question is what its proponent
20 claims." Id; see also Federal Rule of Evidence 901(a). The
21 district court has "broad discretion" in determining the
22 authenticity of tape recordings, as with other pieces of
23 evidence. United States against Tropeano, 252 F.3d 653, 661
24 (2d Cir. 2001).
25 The government can establish the authenticity and
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1 accuracy of tape recordings in a number of ways. See Federal
2 Rule of Evidence 901(b), (setting for the the non-exhaustive
3 list of methods for authenticating evidence). The government
4 could, for example, establish the authenticity and accuracy of
5 tape recordings by proving a chain of custody. See United
6 States against Fuentes, 563 F.2d 527, 532 (2d Cir. 1977). But
7 proving an unbroken chain of custody of proffered tapes is not
8 required, because "breaks in the chain of custody do not bear
9 upon the admissibility of evidence, only the weight of the
10 evidence." United States against Morrison, 153 F.3d 34 (2d
11 Cir. 1998). "Once a relevant tape recording has been
12 sufficiently authenticated, any question as to the veracity of
13 recorded statements and the credibility of speakers goes to the
14 evidence's weight rather than to admissibility." Hamilton, 334
15 F.3d 186 to 87. Allegations that tapes have been tampered
16 with, for example, go to weight rather than admissibility. See
17 United States v. Sovie, 122 F.3d, 122, 127 to 28 (2d Cir.
18 1997); Fuentes, 563 F.2d at 532 (noting that attempts to change
19 "the character of of a running conversation" will likely be
20 obvious "to anyone listening to the tapes." See also Morrison,
21 153 F.3d at 56 "The contents of the conversations on the
22 challenged tapes are coherent and fall logically, making it
23 improbable that any material was deleted or added." Similarly,
24 the fact that portions of tapes are inaudible or altogether
25 missing does not render the tape inadmissible. See United
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1 States against Knohl, 379 F.2d 427, 440 (2d Cir. 1967). In
2 Knohl, the Court of Appeals observed that the admissibility of
3 tape recordings was not implicated by the defendant's
4 complaints about "large scale skullduggery on the part of the
5 government's witnesses in altering the tapes," or by complaints
6 "that the copy was defective because background noises were
7 filtered out without determining whether or not at the same
8 time low-pitched voices were removed and that portions of the
9 recording were missing." Id. See also Sovie, 122 F.3d at 127;
10 United States against Carbone, 798 F.2d 21, 24 (1st Cir. 1986).
11 Likewise, issues concerning "complications that might arise
12 from modern recording and reproducing technology" go to the
13 weight and reliability of the recordings and are ultimately
14 issues for the jury. United States against Capanelli, 257
15 F.Supp. 2s 678, 681 (Southern District of New York, 2003).
16 In this case the authenticity and accuracy of the
17 recordings is established by the testimony of Agent Kerns and
18 Mr. Elliott. The government also proffers that the telephone
19 records will support the existence of at least some of the
20 calls.
21 The jury will have the opportunity to listen to the
22 conversation and make the kinds of judgments with respect to
23 reliability that the Court of Appeals has instructed are for
24 the jury. Applying the standards explained by the Court of
25 Appeals, the government has demonstrated by clear and
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1 convincing evidence that Government exhibits 1000 and 1015 are
2 duplicate originals of recordings and the recordings are
3 authentic and accurate recordings of the telephone
4 conversations of which they purport to be.
5 The objections by the defendants at this point,
6 including arguments over the chain of custody, the compression
7 process and alleged gaps go to weight rather than
8 admissibility. Similarly, the signal-related information has
9 been sufficiently authenticated to be admitted. While the
10 recordings have been sufficiently authenticated to be admitted,
11 the substance of the calls remains open to objections.
12 The government has offered the audio portion of the
13 calls only to the extent that they correspond to the trial
14 transcripts. Whether there are objections to the content of
15 the calls and whether there are Rule 106 objections are matters
16 that have not yet been raised or decided.
17 The government has made the showing required for
18 admissibility as explained. The defendants seek to offer their
19 own expert testimony with respect to the tapes. The defendants
20 of course can introduce expert testimony in the course of their
21 case if they choose to do so, but the government has made a
22 sufficient showing in the course of its own case.
23 So ordered.
24 MR. TIGAR: Your Honor, may we then have a direction
25 to the government to comply promptly with the outstanding
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1 request so that we can prepare our experts?
2 THE COURT: Oh, I ruled on all of those Monday,
3 yesterday. And the government said that it was doing that
4 promptly.
5 MR. TIGAR: All right. I understand and accept that
6 and we will keep after it.
7 Second, under the Knohl case at page 440, the court
8 suggests that where there is a question, where the evidence is
9 conflicting on the admissibility decision, that the court
10 should give a limiting instruction to caution the jury to
11 scrutinize the evidence with care. Such a limiting instruction
12 might be in the form of the standard and former perjurer
13 instruction that issues have been and will continue to be
14 raised with respect to these recordings and the court says that
15 the issue of their reliability is for the jurors and that they
16 are to be received with caution and weighed with great care.
17 THE COURT: I will --
18 MR. TIGAR: "Received with caution" is not in the
19 Knohl case, your Honor.
20 THE COURT: I will take any proposed instructions from
21 either side. I see in the cases that the instructions are
22 given during trial as well as in final instructions. So both
23 sides can submit to me before any of the tapes are played any
24 appropriate instructions for the jury. And you should do that
25 today.
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1 All right.
2 MR. BAKER: Your Honor, in light of that may I ask to
3 be excused? We expect to begin later today playing some of the
4 recordings and so I will leave my colleagues here and go look
5 into that issue.
6 THE COURT: Okay.
7 Does the defense have a proposed instruction for me or
8 just ask me to look at Knohl, which I have here?
9 MR. TIGAR: Actually, your Honor, what I said in the
10 transcript a few minutes ago was what we would think was a good
11 instruction. If it's easier for the court, can we inquire of
12 the government through the court when they are going to play
13 the first tape?
14 MR. BAKER: We believe it will be sometime later
15 today. It's not entirely clear to us how long it will take to
16 present the testimony of the two witnesses through whom most of
17 the transcripts will be admitted into evidence, but I believe
18 our plan is to present the testimony of those witnesses
19 first -- to present the testimony of those witnesses first
20 before turning to the actual presentation of any of the calls.
21 MR. TIGAR: The only reason I ask, your Honor, is if
22 there is going to be a break in between I can write something
23 out and hand it to your Honor.
24 THE COURT: I can get it from the transcript if you
25 want me to look at your transcript in the Knohl case. That is
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1 fine. I will do that.
2 MR. TIGAR: Thank you.
3 THE COURT: All right, anything else before we call in
4 the jury?
5 Do you want to take 5 minutes before we call in the
6 jury?
7 MR. BARKOW: Yes, your Honor.
8 (Recess)
9 (In open court; jury not present)
10 THE COURT: Be seated all.
11 Let's bring in the jury.
12 Is everyone ready for the jury?
13 MR. PAUL: Yes, your Honor.
14 MR. TIGAR: Yes, your Honor.
15 THE COURT: Bring in the jury.
16 MR. MORVILLO: Your Honor, the first two witnesses
17 today will be language specialists from the FBI who will be
18 testifying about transcripts that they prepared. We have for
19 the court, and handed out to defense counsel, lists to the
20 transcripts that correspond to the two language specialists.
21 We are not introducing them into evidence but for the court's
22 record keeping I would like to hand them up.
23 THE COURT: All right.
24 Subject to the limitations that I have already
25 indicated, Government Exhibits 1000 and 1015 are received in
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1 evidence.
2 (Government's Exhibits 1000 and 1015 received in
3 evidence)
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 THE COURT: Good morning, ladies and gentlemen. It's
7 good to see you all.
8 Obviously we are beginning a little later and I
9 appreciate your indulgence. I will find other ways of
10 accommodating you so you don't have to wait when you come in in
11 the morning, whether it's anticipating issues and bringing you
12 in a little later or bringing everyone else in even earlier or
13 working later or doing it on days when you are not here because
14 I really want to use your time as best I can.
15 So I appreciate your indulgence and I appreciate your
16 being here.
17 The government may call its next witness.
18 MR. BARKOW: Thank you, your Honor.
19 Your Honor, the government calls Ms. Nabila Banout.
20 THE COURT: All right, Mr. Barkow, you may examine.
21 NABILA BANOUT,
22 called as a witness by the Government,
23 having been duly sworn, testified as follows:
24 DIRECT EXAMINATION
24
25 BY MR. BARKOW:
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1 Q. Good morning, Ms. Banout.
2 Can you please when you speak make sure you pull the
3 microphone -- and you can do it now -- pull it close to you and
4 speak right into it because the acoustics in the courtroom
5 makes it hard to hear, okay?
6 A. Sure.
7 Q. Ms. Banout, where do you work?
8 A. I work for the FBI.
9 Q. What do you do for the FBI?
10 A. Translate.
11 Q. And do you have a title or position there?
12 A. I am a language specialist.
13 Q. What does it mean to be a language specialist?
14 A. It means you translate from foreign language into English
15 for non-Arabic speakers.
16 Q. And so do you work with any particular languages?
17 A. Arabic.
18 Q. And you translate that Arabic into English?
19 A. Yes.
20 Q. And what kinds of sources are you translating from Arabic
21 into English?
22 A. Audio material and documents.
23 Q. Now, how often do you do that?
24 A. All day, 8 hours.
25 Q. And how many days a week?
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47DSSAT1 Banout - direct
1 A. Five.
2 Q. How long have you been a translator or a language
3 specialist with the FBI?
4 A. 24 years.
5 Q. And have all those years been working with Arabic language
6 materials and translating them into English?
7 A. Yes.
8 Q. Do you also do some translation from English into Arabic?
9 A. Yes.
10 Q. Now, Ms. Banout, where were you born?
11 A. In Egypt.
12 Q. And how long did you live in Egypt?
13 A. 25, 26 years.
14 Q. Approximately when did you leave Egypt?
15 A. 1969.
16 Q. And to where did you go or where did you come when you left
17 Egypt?
18 A. I came to New York.
19 Q. And have you been here ever since?
20 A. Yes.
21 Q. Now, what is your native language?
22 A. Arabic.
23 Q. Are you fluent in Arabic?
24 A. Yes.
25 Q. And when did you first learn Arabic?
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47DSSAT1 Banout - direct
1 A. In school in Egypt.
2 Q. And is that the language, Arabic, that you spoke growing up
3 in Egypt?
4 A. Yes.
5 Q. Are you fluent in English?
6 A. Yes.
7 Q. And when did you first learn English?
8 A. Starting in my elementary school.
9 Q. And that is when you were a small child?
10 A. Yes.
11 Q. And have you been speaking and using English ever since?
12 A. Yes.
13 Q. What language or languages do you use now in your daily
14 life?
15 A. Both English and Arabic.
16 Q. Ms. Banout, I want to ask you some questions about your
17 educational background, okay?
18 A. Please.
19 Q. First, let's start in Egypt. You already mentioned you
20 went to grade school. After you finished grade school, did you
21 go to high school?
22 A. Yes.
23 Q. And did you have any kind of major or focus or
24 concentration in your studies in high school?
25 A. I majored in English literature.
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47DSSAT1 Banout - direct
1 Q. And in what language was your education in high school
2 conducted?
3 A. Arabic.
4 Q. And you were majoring in English literature also?
5 A. Yes.
6 Q. Did you then go on to a college or university?
7 A. Yes, I started in the Faculty of Arts, Cairo University.
8 Q. That is in Cairo, Egypt?
9 A. Yes.
10 Q. And what did you study at Cairo University in Cairo?
11 A. English literature.
12 Q. And what what language or languages was your education
13 conducted at Cairo University?
14 A. English.
15 Q. Did you receive a degree?
16 A. BA.
17 Q. That is a Bachelors of art?
18 A. Yes.
19 Q. Approximately what year did you get that degree?
20 A. If I remember right, maybe '61, '62.
21 Q. Now, have you received any additional education in the
22 United States?
23 A. Yes.
24 Q. What kind of education?
25 A. I got an MA degree majoring in sociology.
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47DSSAT1 Banout - direct
1 Q. That is a Masters of arts degree?
2 A. Yes.
3 Q. From where did you get that?
4 A. Jersey City State College.
5 Q. Approximately what year?
6 A. '71-'72.
7 Q. And besides the Masters degree in sociology, do you have
8 any other education you received in the United States?
9 A. I earned 15 extra credits in the Masters of education.
10 Q. And toward what end?
11 A. This is to get my teaching license.
12 Q. Do you have a teaching license?
13 A. Yes.
14 Q. And what does that teaching license license you to teach?
15 A. High school social studies.
16 Q. Now, prior to your work at the FBI over the last 24, 25
17 years or so, did you actually teach somewhere?
18 A. I taught in the Jersey City school system.
19 Q. What did you teach?
20 A. English as a second language.
21 Q. Did you also teach prior to that?
22 A. No. In Egypt, yes, not here.
23 Q. What did you teach in Egypt?
24 A. I taught English also.
25 Q. And what level?
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47DSSAT1 Banout - direct
1 A. High school level.
2 Q. And have you received any special training or education or
3 classes in the field of translation?
4 A. That was part of my BA degree. I studied translation from
5 Arabic into English and English into Arabic for four semesters
6 before I graduated.
7 Q. And that was at Cairo University?
8 A. Yes.
9 Q. Now, at the FBI, what is your experience or seniority
10 level?
11 A. Well, I have been doing this job for 24 years translating a
12 variety of material in slang language and in the official
13 language, and this is all I can say about my experience.
14 Q. And is there any kind of title or description of your
15 experience level within the FBI with respect to the type of
16 translator you are?
17 A. As a language specialist I just master the ability of
18 translating English into Arabic and Arabic into English.
19 Q. And have you received promotions while at the FBI?
20 A. Yes.
21 Q. And how many times approximately?
22 A. I started at a grade level 9 and now I am grade level 13.
23 Q. And when you received these promotions, do you have to
24 take, and pass, any tests?
25 A. Yes.
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47DSSAT1 Banout - direct
1 Q. And what is the general subject matter of those tests?
2 A. We are tested at different levels that qualify you to earn
3 the promotion to the other higher level.
4 Q. And are these tests testing your translation skills?
5 A. Yes.
6 MR. BARKOW: Your Honor, at this point the government
7 offers Ms. Banout as an expert in the translation of Arabic
8 into English.
9 THE COURT: All right. I will allow the witness to
10 testify.
11 MR. BARKOW: May I proceed, your Honor?
12 THE COURT: Yes.
13 Q. Ms. Banout, are there different Arabic dialects?
14 A. Yes.
15 Q. And can you explain in general terms what a dialect is?
16 A. A dialect can be simply explained as a manner of speech,
17 the way people talk, and it depends, like each region has its
18 own dialect.
19 Q. And using English as an example, can you explain what a
20 dialect is?
21 A. It's the way a New Yorker would speak versus a speaker in
22 Texas.
23 Q. So just to be clear, the person in New York and the person
24 in Texas would both be speaking English?
25 A. They will both be speaking English but each one with a
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47DSSAT1 Banout - direct
1 different way of speech.
2 Q. An accent essentially?
3 A. This is what we call accent, yes.
4 Q. And you are saying that is the same as a dialect?
5 A. Yes.
6 Q. Okay.
7 Now, in Egyptian Arabic, how many different dialects
8 or accents are there?
9 A. Well, in Egypt alone there is a dialect spoken in the
10 coastal area, like in Alexandria and the coast. There is a
11 different way of speech for the Delta and Cairo, and Upper
12 Egypt, the south, they speak a different dialect.
13 Q. Just to be clear, you just referred to the south as Upper
14 Egypt.
15 A. Exactly.
16 Q. That is correct?
17 A. Correct.
18 Q. And so the north, even though it's above, it's called Lower
19 Egypt?
20 A. It's called Lower Egypt because the Nile runs down.
21 Q. Now, which of these dialects do you understand when spoken?
22 A. I understand them very well.
23 Q. All of them or just some of them?
24 A. All of them.
25 Q. Now, Ms. Banout, have you done translation work in
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47DSSAT1 Banout - direct
1 connection with this case?
2 A. Yes.
3 Q. And when did that start approximately? What year?
4 A. About '97.
5 Q. And what kind of work in general terms were you doing in
6 connection with this case starting in 1997 or so?
7 A. Translating audio material and documents.
8 Q. And that was from Arabic into English?
9 A. Yes.
10 Q. And about how much of your time each day and each week did
11 you spend doing that for this case?
12 A. At the beginning it was 50 percent of my time but the last
13 couple of years I have been doing this 100 percent of my time.
14 Q. And could you describe generally at the earlier stages what
15 your work entailed, what you did in a regular day?
16 A. I listened to calls and then I entered them on the computer
17 in English. I listen in Arabic and I type in English.
18 Q. And when you typed them in English at these earlier stages,
19 were you translating them verbatim -- that is, word for word --
20 or summarizing?
21 A. Summarizing in most of the cases. But some of them were
22 requiring verbatim translation, which I did.
23 Q. And these calls, how close in time to the time the call was
24 made were you listening to them?
25 A. The following day.
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47DSSAT1 Banout - direct
1 Q. And what kind of equipment were you using generally to
2 listen to them?
3 A. The computer.
4 Q. And the calls were stored or you accessed the calls through
5 your computer?
6 A. Yes.
7 Q. Approximately how many calls a day would you listen to?
8 A. I would say an average 15, 20 for one line.
9 Q. I am sorry?
10 A. For each line. It would be approximately 15 to 20 calls a
11 day.
12 Q. And who was the primary participant in these calls?
13 A. The owner of the line.
14 Q. Who was that?
15 A. Ahmed Abdel Sattar.
16 Q. Now, did you also create transcripts specifically for use
17 at this trial?
18 A. Yes.
19 Q. And that is different work than what you have just been
20 describing, right?
21 A. The transcripts are different, like the origin of a
22 transcript would be a document that I received.
23 Q. Now, over what time were you doing this work preparing
24 transcripts for trial? Over what time period have you been
25 doing that?
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47DSSAT1 Banout - direct
1 A. The entire time.
2 Q. About when did you start doing it?
3 A. When I started translating for the case.
4 Q. And when you were specifically working on the transcripts
5 for trial about how much of your time from day-to-day was
6 devoted to doing that?
7 A. 100 percent.
8 Q. How many days a week?
9 A. Five days a week.
10 Q. And what was the source of the sound or the audio that you
11 were using to make the transcripts for trial?
12 A. The phone calls.
13 Q. And where were those phone calls stored?
14 A. On the computer.
15 Q. When you were making them specifically for the trial, what
16 were you using? Were you using any kind of device?
17 A. We had them on DVDs after that.
18 Q. And so these DVDs that you were using, that is what you
19 used to make the trial transcripts?
20 A. Yes.
21 Q. And is that a separate place or the same place as the calls
22 you were working on from day-to-day way back in '97?
23 A. No, separate.
24 MR. BARKOW: May I approach, your Honor?
25 THE COURT: Yes.
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47DSSAT1 Banout - direct
1 Q. Ms. Banout, actually before I go further I just want to ask
2 you one question for clarification.
3 Either I or you or both of us used the word verbatim
4 in connection to translations.
5 A. Yes.
6 Q. What does that mean?
7 A. A verbatim transcript is a thorough, word-for-word account
8 of each single word heard. That is verbatim.
9 Q. Now, Ms. Banout, I have just placed before you a pile of
10 paper. Could you please take a look through that, those
11 exhibits, and look up when you are done.
12 A. Yes.
13 MR. BARKOW: For the record, while the witness is
14 looking through the pile I would like to state for
15 identification purposes what exhibits I have put before the
16 witness. That is, I have placed before the witness Government
17 Exhibits marked for identification and provided to counsel
18 1001T, 1002T, 1009T, 1010T, 1011T, 1012T, 1016T, 1017T, 1022T,
19 1023T, 1025T, 1027T, 1028T, 1029T, 1030T, 1032T, 1033T, 1035T,
20 1044T, 1046T, 1047T, 1049T, 1051T, 1054T, 1060T, 1061T, 1062T,
21 1067T, 1092T, 1093T, 1099T, 1102T, 1104T, 1120T, 1121T, 1122T,
22 1123T, 1124T, 1125T, 1126T, 1127T, 1128T, 1129T, 1130T, 1131T,
23 1132T, 1133T, 1134T, 1135T, 1148T, 1153T, 1155T, 1162T, 1163T,
24 1165T, 1166T, 1167T, 1169T, 1179T, 1180T, 1181T, 1183T, 1184T,
25 1188T, 1189T, 1192T, 1194T, 1199T, 1200T, 1205T, 1212T, 1214T,
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47DSSAT1 Banout - direct
1 1217T, 1226T, 1228T, and, finally, 1229T.
2 A. Thank you for your patience, yes.
3 I did them all.
4 Q. Okay.
5 Ms. Banout, you have now looked through each of the
6 pages that I have placed before you?
7 A. Yes.
8 Q. Do you recognize those exhibits that I have placed before
9 you?
10 A. Yes.
11 Q. What are they?
12 A. They are transcripts of the calls that I translated.
13 Q. How are you able to recognize those documents as the
14 transcripts of the calls that you created?
15 A. I initialed and signed each single page.
16 Q. Now, Ms. Banout, when you made these transcripts which
17 contain your translations, where were the calls stored that you
18 were listening to?
19 A. On the DVD.
20 Q. And from whom did you obtain this DVD? Who gave it to you?
21 A. Agent Kerns, Scott Kerns.
22 Q. And you used the DVD then to listen to the calls and make
23 these transcripts?
24 A. I translated them off the computer but I reviewed them on
25 the DVD.
SOUTHERN DISTRICT REPORTERS, P.C.
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47DSSAT1 Banout - direct
1 Q. But the calls were stored on the DVD?
2 A. Yes.
3 Q. And did the files on the DVD have file names?
4 A. Yes.
5 Q. And what kind of information was contained in the file
6 name?
7 A. The file name has the date, the time, and the line number
8 where this call occurred.
9 Q. When you say "the line number," what do you mean?
10 A. Line, for instance, like area code such and such.
11 Q. The telephone number?
12 A. The telephone number, yes.
13 Q. And did these calls contain Arabic conversations?
14 A. Yes.
15 Q. Did they also contain some English conversation?
16 A. Yes.
17 Q. Now, when you were done listening to the calls on the DVD,
18 what did you do with the DVD?
19 A. I gave it back to Scott Kerns. I signed it and gave it
20 back to him.
21 Q. You signed what?
22 A. The DVD.
23 Q. And when you did that was Scott Kerns present?
24 A. Yes. I signed it and I dated it in his presence.
25 Q. Now, this transcript, these set of government exhibits I
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47DSSAT1 Banout - direct
1 have placed before you, do they also each contain a number
2 containing similar information to the numbers in the file names
3 on the DVD?
4 A. Yes.
5 Q. And do these numbers on the transcripts before you, do they
6 correspond with the file names on the DVD?
7 A. Yes.
8 Q. That is, are these transcripts translations of the
9 corresponding calls on the DVD?
10 A. Yes.
11 Q. And are all the transcripts sitting before you that you
12 have just reviewed true and accurate translations from Arabic
13 into English of the corresponding calls on the DVD that you
14 listen to and returned to Scott Kerns?
15 A. Yes.
16 Q. Is the translation work on those transcripts done truly,
17 accurately, and correctly?
18 A. To the best of my ability, yes.
19 Q. And when -- you can leave them sitting there.
20 When you were doing this work, what was your primary
21 focus? Was it translating Arabic into English or transcribing
22 English?
23 A. Translating Arabic into English.
24 Q. Did you also transcribe English when it was in the same
25 call as one that had Arabic talking as well?
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47DSSAT1 Banout - direct
1 A. Yes.
2 Q. And was that done to the best of your ability?
3 A. Yes.
4 Q. Now, Ms. Banout, I want to ask you some questions about the
5 format of these transcripts and I would like, if I could, to
6 place before the witness and counsel what I have marked for
7 identification as Government Exhibit 407.
8 Ms. Banout, I am showing you what I have marked for
9 identification as Government Exhibit 407. Would this document
10 help you explain the headers and the format of the transcripts
11 that you generated?
12 A. Yes.
13 MR. BARKOW: Your Honor, at this point the government
14 offers Government Exhibit 407 as a demonstrative.
15 MR. RUHNKE: No objection.
16 MS. SHELLOW-LAVINE: No objection.
17 THE COURT: All right, Government Exhibit 407 received
18 in evidence as a demonstrative aid to the witness' testimony.
19 (Government's Exhibit 407 received in evidence)
20 MR. BARKOW: May we publish it to the jury, your
21 Honor?
22 THE COURT: Yes.
23 Q. Ms. Banout, in front of you on your screen and on the big
24 screen you have Government Exhibit 407. I am going to ask you
25 what some of this information is.
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47DSSAT1 Banout - direct
1 The first call, the format that you see in government
2 407, is that the same format that is at the top of each one of
3 the transcripts that you have in front of you?
4 A. Yes, it is.
5 Q. Okay.
6 Now, do you see on the very top where it has the
7 number on this document 98121216.13, what is that?
8 A. This is the number given to each document showing '98 is
9 the year. 12 is the month. 12 is the date, the day. 16 like
10 is the hour. .13 is the minutes.
11 Q. Is that the number that I previously have been asking you
12 about whether it corresponds with the file names on the DVD?
13 A. Yes, it is.
14 Q. Now, do you see the very top line here where it says
15 monitor number?
16 A. That is my number.
17 Q. Which number is your number?
18 A. 4.
19 Q. Okay. And so what is the purpose of that number appearing
20 on this demonstrative and other transcripts?
21 A. That is the number of the person who did the translation.
22 My number is number 4.
23 Q. So if number 4 appears on a transcript it's yours?
24 A. Yes.
25 Q. And the next line, line ID, what does that line show?
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47DSSAT1 Banout - direct
1 A. That is the telephone line of which this incoming call will
2 be given.
3 Q. And what about "session start" and "session end"?
4 A. The session start has the date 12/12/1998 as it shows on
5 top, the year '98, month 12 and day 12, same as on top. The
6 hour is 16 and the minutes are 13, again as on top. So this is
7 the date and time of the call.
8 Q. Now, Ms. Banout, with respect to the information there, the
9 monitor number, the line ID, and the session starting and
10 ending time, how does that information end up on a transcript
11 that you are working on?
12 A. I am sorry, I didn't hear you.
13 Q. I am sorry.
14 How does that information, monitor number, line ID,
15 session start and session end if there is information for that,
16 how does that end up on a transcript that you are working on?
17 A. It's electronically given like when I open, like click on
18 translation, this page shows as is on my screen. I only enter
19 the participants and the bottom information.
20 Q. Okay.
21 So the next line "call direction" and "contact ID" and
22 "audio file name," that information is generated automatically
23 as well?
24 A. Yes.
25 Q. And do you know what "call direction," what that is
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47DSSAT1 Banout - direct
1 indicating?
2 A. Usually a call is either incoming or outgoing. "Unknown"
3 is when the system cannot determine whether it's coming in or
4 out.
5 Q. What about "contact ID?"
6 A. The contact ID would be the person owning the phone line.
7 It's left blank because like you enter it, because you don't
8 know if it is, say, in this case it's Mr. Sattar, you don't
9 know if it is him who is going to use it or somebody else, one
10 of the children or something.
11 Q. And what about audio file name? The next line.
12 A. It's the year, the month, the date, and the phone line, all
13 the phone line information repetitive in a different way.
14 Q. And is that the information from the DVD file name?
15 A. Yes.
16 Q. Now this particular exhibit, Government Exhibit 407, has a
17 line for participants. There is nobody entered there. Can you
18 explain what in general is listed in the participant section on
19 the transcripts that you prepared?
20 A. Yes, I can. You first listen to the call and you put the
21 names of the two people speaking. If it is Mr. Sattar calling
22 somebody else you put Mr. Sattar's name and then you put down
23 the name of the other person who he is talking to.
24 Q. And if there are 3 or 4 participants, would you put those
25 people as well?
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47DSSAT1 Banout - direct
1 A. Yes.
2 Q. Now, sometimes in "participants" in these transcripts it
3 lists UM or UF.
4 A. Yes.
5 Q. What does that mean?
6 A. We use these abbreviations to say U is unknown or
7 unidentified male, UM. UF, unidentified female.
8 Q. And then UC appears sometimes as well. What does that
9 mean?
10 A. Unidentified child.
11 Q. And then the next section, "abbreviations" -- and before I
12 move on to that, who actually enters on your transcripts the
13 participants?
14 A. I do.
15 Q. Okay. And on the next section, "abbreviations", who
16 actually enters the information in the abbreviations section?
17 A. I do too.
18 Q. Okay.
19 There is a few in front of you. I guess I will ask
20 you about those. The first one, UI in parenthesis, what does
21 that mean?
22 A. When you can't hear a word it's unintelligible, so we put
23 UI to indicate that.
24 Q. I am sorry.
25 A. No problem.
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47DSSAT1 Banout - direct
1 Q. And the next one, PH in parenthesis, phonetic spelling,
2 what does that mean?
3 A. It means for a name as you hear it phonetic, the way you
4 heard it.
5 Q. What do you mean?
6 A. Like you hear the name, for instance, Ali, you put PH in
7 brackets meaning like this is the way I heard it. The spelling
8 is not given to me. So I put it phonetic.
9 Q. So if you don't know how to spell something, like a name,
10 you will sound it out basically?
11 A. Exactly.
12 Q. Okay.
13 And then you have dot dot dot for incomplete thought.
14 Can you explain what that signifies?
15 A. Yes, as people speak sometimes they don't complete the
16 sentence or they say a few words and then they jump to another
17 something. So as they start the sentence and don't finish it,
18 I cannot put a period because it's incomplete, so I put these
19 three dots to show that the thought here is not complete.
20 Q. Okay.
21 And then on this transcript 407 there is what looks
22 like an underline?
23 A. It is.
24 Q. Spoken in English?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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47DSSAT1 Banout - direct
1 Q. Can you explain what this indicates on these transcripts
2 and on Government Exhibit 407?
3 A. Yes.
4 The underlining is to show that this is spoken in
5 English, not Arabic. I don't want the reader to think that I
6 translated that. I want to show that it is said in English.
7 (Continued on next page)
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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47DLSAT2 Banout - direct
1 BY MR. BARKOW:
2 Q. Okay, so on a call where, say, 95 percent of the
3 conversation is in Arabic, and 5 percent is in English, the
4 things that you translated from Arabic into English, will that
5 be underlined or no?
6 A. No.
7 Q. Okay. But the 5 percent that was in English to begin with
8 and that you transcribed, would that be underlined?
9 A. Exactly.
10 Q. Okay. Now, let me give you a flip-side example. Let's say
11 there was a call -- there were a few of these in the pile in
12 front of you -- where 95 percent of the conversation is in
13 English and 5 percent is in Arabic. Does it sometimes list
14 then that the underlined portion is that which is spoken in
15 Arabic?
16 A. Yes. But at the same time will say on top -- instead of
17 spoken in English, it would say spoken in Arabic.
18 Q. Okay. Meaning in this abbreviation section you're saying?
19 A. Exactly.
20 Q. Now, I want to ask you about a few other types of notations
21 that appear in these transcripts as a general matter.
22 Sometimes in these transcripts you've indicated items in
23 brackets?
24 A. Yes.
25 Q. Would you explain why you use brackets and put information
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47DLSAT2 Banout - direct
1 in in brackets in certain places?
2 A. Yes, I sure can. What I put in brackets is things that
3 that are not spoken and yet you hear them, like laughing, for
4 instance.
5 Q. And when you did that, did you put the bracketed
6 [laughing] in the place where the laughing actually occurred in
7 the conversation?
8 A. Yes.
9 Q. And other times there's information in brackets that is
10 something like "intermission" or "technical problem" or
11 something like that.
12 A. Yes.
13 Q. Could you explain what that is briefly?
14 A. Yes, I can. The intermission is when you get -- you hear
15 sometimes clicks or some distorted static noise. I put that as
16 technical problems to show that something technical is
17 happening here.
18 Q. And when you noted that kind of information, intermission
19 or technical problem, was the problem confined to that spot on
20 the transcript?
21 A. Yes.
22 Q. And so if that information is not noted, that is, it
23 doesn't say intermission or technical problem, were you able to
24 hear clearly?
25 A. Yes.
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1 Q. Okay. Now, sometimes you have s-i-c or "sic" in brackets.
2 What does that mean?
3 A. I put s-i-c to mean that this is the mistake of the
4 speaker. We all do mistakes as we talk. We don't speak
5 straight all the time. If I make a mistake while I speak and
6 the listeners do not make sense of what I'm saying, but this is
7 what I've said anyway, I put sic, s-i-c, in brackets, to show
8 that this is the way it was said and I translate it as such.
9 Q. So just to be clear, if you were listening and translating
10 a conversation, and someone misspoke or used poor grammar or
11 used a word incorrectly, would you translate it and transcribe
12 it as they said it?
13 A. Yes.
14 Q. Is that the kind of situation you would use sic?
15 A. Yes.
16 Q. Now, sometimes in these transcripts you have things in
17 italics. Could you explain why you have that?
18 A. Yes. I use italics when it is not my translation. Say,
19 for instance, it's a quotation, usually from the Koran, a
20 quotation from another book called Hadith. It's not my
21 translation.
22 Q. What --
23 A. I'm sorry, let me explain here. The quotation of the
24 Koran, we take it as-is from the person. But Hadith, we don't
25 have a standard translation for Hadith, and it's our
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1 translation yet because it is still a Hadith that is quoted. I
2 put it in italics.
3 Q. What is the Koran?
4 A. It's the holy book for the Muslim religion.
5 Q. What is the Hadith?
6 A. The Sayings of the Prophet.
7 Q. So when you put things in italics to signify the Koran or
8 the Hadith, how were you able to determine that they actually
9 were from the Koran or the Hadith?
10 A. It's easy to determine because the language of the Koran is
11 very different from everyday language. You can tell right away
12 that this is a verse from the Koran quoted here.
13 Q. And did you do anything to check and confirm whether it was
14 from the Koran or not?
15 A. Yes. I have a book that tells me where to pick each single
16 verse from the Koran, and I take it from the Koran as-is, as a
17 quotation.
18 Q. So when you believed, as an initial matter, that something
19 was from the Koran, did you look it up?
20 A. Yes.
21 Q. When you then have it italicized, does that mean you
22 actually checked it?
23 A. I check it and I have it italicized.
24 MR. BARKOW: May I have just a moment, your Honor?
25 THE COURT: Yes.
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1 (Off the record)
2 BY MR. BARKOW:
3 Q. Miss Banout, before I go onto another subject -- I want to
4 place, your Honor, before the witness Government Exhibit 407
5 briefly.
6 THE COURT: All right.
7 Q. Ms. Banout, you had mentioned that this transcript header
8 on Government Exhibit 407 was generated automatically. Is
9 that, to your knowledge -- do you know whether it's a standard
10 way the system operates whether any translator is working on
11 and generating transcripts for this case, that this header
12 would appear automatically?
13 A. Yes.
14 Q. Is it the same header?
15 A. Except for monitor number. When I enter my password into
16 the computer, it says monitor name and it shows my name, but
17 this is for the case, would change names into numbers. So I
18 delete my name and put the number.
19 Q. And so if other translators were making transcripts for the
20 case, it would list their monitor number?
21 A. Yes.
22 Q. And the same header with the same information?
23 A. Yes.
24 Q. And, if you know, was it also standard procedure in the
25 generation of transcripts for this case to italicize quotations
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1 and passages from the Koran?
2 A. Yes.
3 Q. Now, I'd like to place before you and counsel only what I
4 have marked for identification and provided to counsel as
5 Government Exhibit 405 -- actually, may I approach, your Honor?
6 THE COURT: Yes.
7 Q. Ms. Banout, I've placed before you what I've provided to
8 counsel and marked for identification as Government
9 Exhibit 405. Can you take a look at that, tell me whether you
10 recognize it?
11 A. Yes.
12 Q. What is it?
13 A. It's a glossary of terminology that I used, words in
14 Arabic, throughout the English translation.
15 Q. Who made this glossary of terminology?
16 A. I did.
17 Q. And how did you go about making it?
18 A. I referred to a variety of dictionaries and reference
19 books.
20 Q. For what kinds of words?
21 A. For words we use in Arabic as-is, like the word "jihad",
22 like the word "fatwa", like the word "ijtihad", and so on.
23 Q. And the sources and books that you consulted to make this
24 exhibit, this glossary, what kinds of books generally were
25 those?
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1 A. Dictionaries and reference materials.
2 Q. And how many books did you consult to make this exhibit?
3 A. It's either seven or eight.
4 Q. And when you put this glossary together, the words and the
5 content in the glossary, are those your words or were you
6 taking it straight from the sources you were checking?
7 A. No, straight from the sources.
8 MR. BARKOW: Your Honor, the government offers
9 Government Exhibit 405.
10 THE COURT: All right. No objection? Government
11 Exhibit 405 received in evidence.
12 (Government's Exhibit 405 received in evidence)
13 MR. BARKOW: May I place before the jury Government
14 Exhibit 405?
15 THE COURT: Yes.
16 BY MR. BARKOW:
17 Q. Ms. Banout, now, showing you Government Exhibit 405, I just
18 want you to explain briefly the format here. Can you explain
19 first the information on the top? And it's slightly -- it's
20 kind of faded on this, but is it gray on your copy of it?
21 A. Yes.
22 Q. In this top row, will you explain what kind of information
23 is listed there?
24 A. It's the name of the source: Author, publisher.
25 Q. And then looking at the far left-hand column, what
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1 information is contained in the far left-hand column?
2 A. The word "source".
3 Q. The same on the next page, the same left-hand column, the
4 word that you were using?
5 A. Yes.
6 Q. And the third page, is that the same format?
7 A. Yes.
8 Q. And if I could show you for example the third page over the
9 first page, do the columns here -- here's the first page, and
10 then this is the third page I'm placing over it -- do the
11 columns match up from the first page? That is the one that
12 lists the book source for all the subsequent pages.
13 A. Yes, it does.
14 Q. Okay. Now, how and why did you select the particular words
15 that you put on this chart as words that you had kept in Arabic
16 in the transcript? Why these and not other similar words?
17 A. Well, these words in particular become part of the American
18 language. But still, to avoid any confusion in understanding
19 or thought, I put them in Arabic as-is, knowing that they are
20 part of the American daily speech. I just wanted them to be
21 clear for the reader, according to these variety of sources
22 presented.
23 Q. And are these words on this chart used, do they appear
24 frequently throughout these transcripts?
25 A. Yes.
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1 Q. Now, just to explain some of the abbreviations and the
2 information on here. I want to direct your attention to the
3 first row which says "jihad" and first ask you, do you see
4 where it says "Lit." in the second column?
5 A. Yes.
6 Q. Before the information in quotes. What does the "Lit."
7 mean?
8 A. "Lit". is used by Dictionary of Islam Being A Cyclopedia of
9 Doctrines, Rites, etc., to mean "literally". Like the word
10 literally means so-and-so. That's the identification used from
11 this particular book.
12 Q. So you just used it from that book?
13 A. Yes, I put it as-is.
14 Q. And the other, turning the second page, there's the row for
15 murabitun that I'm pointing to. Move over to the second
16 column. It says, "not given". And actually, "not given"
17 appears throughout Government Exhibit 405.
18 A. Yes.
19 Q. What does that mean?
20 A. It means in this particular book, they didn't research this
21 word. So I don't have anything to put in place. It's not
22 given.
23 Q. And finally, just to explain how this chart, Government
24 Exhibit 405, is used, using it as an example in the first row,
25 jihad, can you explain why there's different information
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1 basically in each box across the chart?
2 A. According to A Dictionary of Islamic Terms, 3rd edition of
3 1989, jihad is defined as holy war. According to the
4 dictionary of Islam, the Encyclopedia of doctrines, rights,
5 ceremonies, etc., it means literally an effort for a striving,
6 a religious war with those who are unbelievers in the mission
7 of Mohammed. It's an incumbent religious duty established in
8 the Koran, and in the traditions as a divine institution and
9 enjoined specially for the purpose of advancing Islam and
10 stopping evil from Muslims.
11 And these are the very beginning. It continues from
12 Pages 243 in the same book to 247 in explanation, and I
13 couldn't include all of these, but the book is available if
14 needed.
15 Q. And so then the next box -- and the next box?
16 A. According to Al-Mawrid English/Arabic Dictionary, 7th
17 edition of May, 2003, it's a holy war -- dictionary put in
18 brackets: (by Moslems) -- struggle, strife, fighting, battle.
19 Q. And you don't have to read it all, but the same is true
20 then for the rest of the row there? That it lists the
21 dictionary definitions or meanings from these books for that
22 word?
23 A. Yes.
24 Q. Ms. Banout, I want to ask you about some words that appear
25 in your transcripts that are used less often than the words on
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1 government Exhibit 405, but still appear in the transcripts.
2 There's a word Aisha, A-i-s-h-a. What is that word?
3 A. Aisha is a name. Is a female name.
4 Q. And is there any significance to that name? Is that name a
5 known name or just any kind of random name?
6 A. It's a common name.
7 Q. What about Ramadan? What is Ramadan?
8 A. Ramadan is the holy month of fasting.
9 Q. What about Mus'ad? What is that?
10 A. Mus'ad is the name of a mosque.
11 Q. Of a particular mosque?
12 A. Yes, and I'm trying to remember the location, but I can't.
13 Q. What is a mosque?
14 A. It's the holy place where prayer is performed.
15 Q. For Muslims?
16 A. Yes.
17 Q. What is a hajj, h-a-j-j?
18 A. It literally means pilgrimage, when they go to Mecca in
19 Saudi Arabia and they perform pilgrimage.
20 Q. What about Adan?
21 A. That's a call to prayer. It's usually chanted from a
22 minaret, on top of a mosque.
23 Q. What English notation that you have -- sometimes you'll
24 list female lawyer or male lawyer or lawyer. Could you explain
25 how you determined what to put and how to translate that?
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1 A. Yes. The word lawyer, same as the word teacher and doctor,
2 in Arabic is gendered. You can tell from the Arabic word, you
3 hear if it's a male or a female. And to avoid confusion, I
4 refer to it in brackets if it is a male or a female.
5 Q. Ms. Banout, a few other terms and words. No might or power
6 saved from Allah. That is a translation that you have
7 sometimes in these transcripts. What does that mean,
8 essentially in English?
9 A. This is a quotation from the Koran. And it's usually
10 quoted when a disaster happens, or similar like you say, Oh,
11 God -- something like that.
12 Q. It's just an expression that people used similar to, Oh, my
13 God in English?
14 A. Exactly.
15 Q. What is an emir?
16 A. Emir is the head of either a group or a small state, like
17 we hear of the United Arab Emirates. Emir is the head of the
18 Emirate.
19 Q. What about amir, a-m-i-r?
20 A. Amir is the Arabic word for the English emir.
21 Q. What about "um", u-m or u-m-m?
22 THE COURT: I'm sorry, I didn't hear the last answer,
23 a-m-i-r?
24 A. Amir, your Honor, is the Arabic word for emir, which is
25 emir, e-m-i-r, in English.
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1 Q. Ms. Banout, what about um, u-m or u-m-m?
2 A. That's the female of abu. Abu whoever -- Abu Ali is the
3 father of Ali. Um Ali is the mother of Ali.
4 Q. You said abu. How do you spell that?
5 A. A-b-u.
6 Q. So that's used in connection with someone's name?
7 A. Yes.
8 Q. Will you explain the use of "um" and "abu" a little bit?
9 A. Yes, um and abu are used as an alias name for the same
10 person. Some countries use it as kind of dignity in a family,
11 like it's more respectful to say -- instead of saying, Nabila,
12 for instance, they say, "Um", and then they put the name of my
13 son.
14 Q. But both would be referring to you?
15 A. Oh, yes.
16 Q. What about pasha? P-a-s-h-a?
17 A. That came to the Arabic language in Egypt from Turkey.
18 It's a dignified title. A title of respect.
19 Q. And I just have a few more. Mawlana. What does that mean?
20 A. Literally, it means like "our guardian". But it's used as
21 a title.
22 Q. Okay. Sometimes you translate an expression, "We will
23 smash the table lamp." That's how you have it in English. Can
24 you explain that translation?
25 A. In its context, the context I had, it means, will mess
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1 everything, will turn everything upside down.
2 Q. It's a figure of speech that means that, basically?
3 A. Not very common.
4 Q. I'm sorry, not very common or common?
5 A. Not very common, no.
6 Q. What about "I smashed the light"?
7 A. I turned it upside down.
8 Q. That's what that means?
9 A. Yes.
10 Q. What about the expression, "The necklace beads are
11 scattered"?
12 A. Necklace beads are scattered means like disunity happens.
13 The necklace is all put together with one string. Now when the
14 beads are scattered is when each goes apart. So no more unity.
15 Q. And these last three that I just asked you about, about the
16 necklace beads, I smashed the light, and, We will smash the
17 table lamp, are those just methods of speaking in Egypt or
18 what's the source of those expressions?
19 A. Well, it's difficult to say the source, because language,
20 like each day, comes with new words. People make new words.
21 You hear it in movies, you hear it repeated several times, and
22 then it becomes part of their daily speech. So it develops as
23 culture goes.
24 Q. There are a few more words in your transcripts.
25 A. Uh-huh.
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1 Q. Liman, Abu Za'bal, and Iistiqbal. What are those words?
2 A. These are three names of three different prisons in Egypt.
3 Q. And what about these words: Al-Quds, Al-Hayat, and Asharq
4 Al-Awsat? What are those?
5 A. These are newspapers issued in Arabic.
6 Q. What does the word sa'idi mean?
7 A. It means upper Egyptian.
8 Q. Is that someone who's from upper Egypt?
9 A. Yes.
10 Q. And now, what about these words: Al-Mansura, Al-Kush,
11 Suhaj, Aswan, Al-Menya, Maragha, Saqolta, Manfaloot, Tama,
12 Qena, Luxor, and Assuit? What are those words?
13 A. All of these are names of cities in Egypt.
14 Q. Al-Giza, what is that?
15 A. Again, it's a city. It's a government at the same time.
16 Southern Cairo.
17 Q. Southern Cairo?
18 A. South of Cairo, yes.
19 Q. What about Al-Azhar?
20 A. That's a university in Egypt, it's the Islamic university.
21 Q. And finally, the Sixth of October. What is the Sixth of
22 October? What does that mean?
23 A. It's the name of a city and it's also a date of -- where
24 Sadat conquered Israel.
25 Q. And that was President Sadat of Egypt?
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1 A. Yes.
2 Q. Now, Ms. Banout, one other subject I want to cover with
3 you. How did one determine how to spell a name, an Arabic
4 name, in English, and how did you make that determination in
5 making the transcripts?
6 A. Unless the spelling is given, and I use it as is. Unless
7 it's given, we use a system called transliteration, and this
8 transliteration means like each single letter has its
9 equivalent, and we use it to be consistent in spelling the
10 names.
11 Q. When you say a name would be given, what do you mean by
12 that?
13 A. Like when someone has his name spelled consistently in all
14 his documents and everywhere, he doesn't change it, we use
15 that, because this is the way this person spells his name.
16 Q. And then you talked about transliteration, can you explain
17 what that is?
18 A. If I don't have a standard spelling on the name, we use the
19 transliteration system.
20 Q. And -- which is what?
21 A. Which is each single letter has another equivalent one in
22 English. And I use that, so we stay consistent as much as we
23 can.
24 Q. Let me ask you just to explain this using -- a few
25 examples. The name Ahmed. Can you explain the Arabic word for
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1 that name and the possible spelling or spellings in English of
2 that name?
3 A. Yes. If I translate Ahmed, it's A-h-m-a-d. In case of
4 Mr. Sattar, he consistently spells it A-h-m-e-d, not with an
5 "a". "E-d". So we keep it this way.
6 Q. And both spellings, do they refer to the same Arabic name?
7 A. Yes.
8 Q. And what is that Arabic name?
9 A. Ahmed.
10 Q. And how many letters in Arabic is that name?
11 A. Four.
12 Q. What about the name Muhammad? Could you explain how
13 Muhammad can and is spelled -- can be and is spelled in the
14 transcripts and how it corresponds to an Arabic name?
15 A. Yes. If I translate -- if I transliterate the name
16 Muhammad it will be M-u-h-a-m-m-a-d. That's how to
17 transliterate it. But because different people say it so many
18 different ways, each one -- someone can have a spelling of his
19 name M-o-h-a-m-e-d. Someone puts it with a double "m".
20 Someone does not use any "u". Says "m-o". All of which is
21 correct.
22 The reason for that, Mr. Barkow, is that the vowel
23 system in Arabic is very complicated. We don't have vowels the
24 same way they have them in English. We use vowel marks on
25 consonants, and it depends on the way you pronounce the name is
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1 how it comes to the ear of your listener and how he writes it.
2 Q. And for all these names of Muhammad, all those different
3 English spellings, how many Arabic spellings are there of that
4 name?
5 A. One.
6 Q. And how do you say that name in Arabic?
7 A. Muhammad.
8 Q. And how many letters are in that Arabic name?
9 A. Surprisingly, just four.
10 Q. And one final name I want to ask you to explain different
11 spellings for, Abdel Rahman. Can you explain the different
12 ways that one could translate or transliterate or spell Abdel
13 Rahman in English?
14 A. Yes. The name Abdel Rahman consists of two words. Some
15 names consist of two words, but it's a name of one person. One
16 name. So Abdel is a word. Abdel Rahman is another word. Some
17 people write it Abd Al-Rahman. Some people think it's easier
18 for the American ear to put the a-l and make it Abdul or Abdel.
19 That will spell it A-b-d-u-l or A-b-d-e-l. And then Rahman is
20 a separate word.
21 So different people spell it different ways. But it's
22 the same person.
23 Q. And are all those different spellings which refer to the
24 same person, are they all correct?
25 A. Yes.
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1 MR. BARKOW: May I have just a moment, your Honor?
2 THE COURT: Yes.
3 (Off the record)
4 MR. BARKOW: I have nothing further at this point,
5 your Honor.
6 THE COURT: All right. Mr. Stern, you may examine.
7 CROSS EXAMINATION
8 BY MR. STERN:
9 Q. Good morning, Ms. Banout.
10 A. Good morning.
11 Q. Ms. Banout, I think you said you've been a translator for a
12 number of years, correct?
13 A. Yes.
14 Q. And your job of translator, I take it, is to take documents
15 either in Arabic or English and transfer them from that
16 language into the other language, correct?
17 A. Correct.
18 Q. Have you had an opportunity to translate between people,
19 that is, to interpret where one person is speaking, you're
20 sitting there and you take what the one person says and
21 translate it to that language immediately as they're sitting
22 there?
23 A. Yes.
24 Q. And that's very different from what you do as a translator,
25 isn't it?
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1 A. I wouldn't say different. I'm doing the same job, but
2 except that I'm doing it like as it happens.
3 Q. Well, for example, if someone were to say a Koranic -- I'll
4 use the word, saying, I'm not sure if that's the right thing --
5 you can't go look that up when you're interpreting, can you?
6 A. No.
7 Q. And if someone uses a word you don't know the exact
8 equivalent, you have to just do the best you can, right?
9 A. Exactly.
10 Q. So they're not really exactly the same. When you translate
11 you can use much more care in converting things from one
12 language to another. That's fair to say, isn't it?
13 A. Yes, it is.
14 Q. Okay, now, I want to talk about the translating you do of
15 these documents, primarily for Mr. Sattar, okay?
16 When you did that, you were given documents by an
17 agent, right?
18 A. Yes.
19 Q. And those documents in this case consisted of phone calls
20 on a DVD or a tape, something like that, right?
21 A. Yes.
22 Q. And you were asked to take them and translate them?
23 A. Yes.
24 Q. And would you say to him, the agent -- in this case, I
25 suppose it was Mr. Kerns, right -- Why am I doing this?
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1 A. Mr. Kerns is the --
2 Q. I'm sorry, would you say to Mr. Kerns: Why are you asking
3 me to do this?
4 A. Why he's asking me to do the translation?
5 Q. Right, did you ask him that question?
6 A. No.
7 Q. Would you say, What are you going to do with this once I'm
8 done translating it?
9 A. Let me explain. Mr. Kerns is the one who gives us the DVD,
10 the translation is given -- like, we have it in on our
11 computer, the courts come -- calls come with a court order.
12 Q. I'm sorry, say that again.
13 A. The calls we were covering are given to us under court
14 order. I open my computer, enter my passwords and go through
15 the calls and do them. After I translate them, they go to the
16 case agents who takes care of them. That's the end of my job.
17 Q. So you never asked him: Why do you want me to do this and
18 what are you going to do with my translations, do you?
19 A. This is explained in the court order that we obtained from
20 the very beginning as a reason why we are having this.
21 Q. When you say "we obtain", did you obtain that court order?
22 A. Yes, the agents do, and we take it, yes.
23 Q. And did you read that court order?
24 A. Yes.
25 Q. And when you read that court order, did you yourself make a
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1 determination whether it was a legal or illegal court order?
2 A. It is legal.
3 Q. I'm asking did you yourself make that determination?
4 A. No.
5 Q. Do you know the law, you yourself, know the law that
6 governs what's legal or illegal about those orders?
7 A. Yes.
8 Q. You do know the law about that?
9 A. Yes.
10 Q. And so you go in front of a judge and you explain to a
11 judge why those should be granted or not granted?
12 A. Based on the reasons, the case agents has to cover a
13 certain line, the court order is given.
14 Q. I'm asking now about you personally, Ma'am. Not about the
15 agents. About you personally, and your personal understanding
16 of the law that grants people the right to get wiretaps.
17 You're not a lawyer, are you?
18 A. No.
19 Q. And you yourself don't write up applications to judges to
20 get court orders for wiretaps, do you?
21 A. No.
22 Q. And you yourself have never researched the laws about how
23 someone gets court orders to get wiretaps, have you?
24 A. No.
25 Q. And so what happens, really, is the agents come to you and
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1 they say, We have gotten a court order, right?
2 A. Yes.
3 Q. And we would like you to do this work based on the court
4 order we've got, right?
5 A. Yes.
6 Q. And you don't, yourself, do research into whether or not
7 they had good grounds to get that court order, do you?
8 A. It's available for me if I want it.
9 Q. My question is: Do you yourself do legal research into
10 whether or not they had grounds to get that court order? Do
11 you yourself do that research or --
12 A. No.
13 Q. -- do you take their word for it?
14 A. No, I don't.
15 Q. You take their word for it, don't you?
16 A. Yes.
17 Q. And there's nothing wrong where that, is there?
18 A. No.
19 Q. And when they ask you to translate one document to another
20 language, there's nothing wrong with that?
21 A. Yes.
22 Q. You assume there's nothing wrong with that?
23 A. No.
24 Q. And as far as you know, there isn't anything wrong with
25 that?
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1 A. No.
2 Q. Now, you talked some about the use of the terms "um" and
3 "abu", right?
4 A. Right.
5 Q. And you referred to those as aliases?
6 A. Yes.
7 Q. But by alias, you don't mean anything nefarious or bad?
8 A. No, it's a different way of saying what you mean.
9 Q. Not, for example, hiding someone's identity?
10 A. No.
11 Q. It's just a way people use to refer someone sometimes to
12 give them more respect, right?
13 A. Exactly?
14 Q. And you also talked about some newspapers, Al-Hayat and
15 Al-Quds, right?
16 A. Yes.
17 Q. And those papers are mainstream Arabic newspapers, aren't
18 they? Published publicly, right?
19 A. Yes.
20 Q. Not geared toward any particular group other than Arabic
21 speakers?
22 A. None that I know of.
23 Q. And you can buy one at any regular newsstand, right?
24 A. Yes.
25 Q. Both are published in London?
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1 A. I know Al-Hayat is published in London. I'm not sure where
2 Al-Quds is published. Probably in London, too, but I'm not
3 sure.
4 Q. Both publish general information about what's going on in
5 the Arabic world, right?
6 A. Yes.
7 MR. STERN: Thank you. I have nothing else.
8 THE WITNESS: Thank you.
9 MR. PAUL: I just have one or two questions.
10 THE COURT: Thank you. Mr. Paul, you may examine.
11 CROSS EXAMINATION
12 BY MR. PAUL:
13 Q. Ms. Banout, you made some reference to the use of
14 translations from the Koran.
15 A. Yes.
16 Q. Which -- there are different translations of the Koran, are
17 there not?
18 A. Yes.
19 Q. Which reference did you use? Which translation of the
20 Koran did you use in your translation of these intercepts that
21 you were listening to?
22 A. I think, if I remember right, it's -- it says -- it's a
23 green book on my desk that says, Translations of the Meanings
24 of the Koran. And I think Yusuf Abdullah, something, is the
25 one.
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1 Q. Yusuf?
2 A. Yusuf Abdullah something or something Abdullah. I'm not
3 saying the full name, but I'm trying to say it to the best of
4 my recollection. It's either the editor or the one who did the
5 translation of that book.
6 Q. And is there any particular reason you used that specific
7 translation in the use of these translations that you were
8 doing?
9 A. Well, the only reason I have for this one in particular is
10 that there was no other one available in the market back then.
11 We are talking now about year '95 -- no, even earlier.
12 Since '93. We didn't have any other translation available in
13 the market other than that one. Like, we had no choice. We
14 used it but we use it consistently because it was the only one
15 available. Now there are so many others.
16 Q. You're saying you used this particular translation of the
17 Koran because that's what your office was utilizing back
18 in '93, '94, '95; is that right?
19 A. Yes.
20 Q. But since then, as you've testified, there have been many
21 translations on the market, easily accessible to anybody who
22 wishes, is that so?
23 A. Yes, yes.
24 Q. But because you began with this specific reference, you
25 continued throughout because of the consistency of that?
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1 A. Exactly.
2 Q. There was mention, I believe, of Exhibit 405, where you
3 took the English words, and you had brackets. We saw it on the
4 projector?
5 A. The glossary? Yes.
6 Q. The columns and so forth?
7 A. Uh-huh.
8 Q. Did you do that with regard to the Koranic translations
9 that you were using? In other words, did you take a specific
10 reference that was used in an intercept that you were listening
11 to that was clearly from the Koran and list the different maps,
12 different translations from different sources of that Koranic
13 verse. Did you ever do that?
14 A. No.
15 Q. So you always remained with the one specific translation
16 that you've described?
17 A. Yes.
18 Q. Would you agree with me, Ms. Banout, that different
19 translations of the Koran would certainly use different words
20 in the definitions or the translations specifically from Arabic
21 to English with regard to the Koranic versus?
22 A. This is why I use the quotations from the Koran as-is.
23 Q. From that specific reference that you utilized?
24 A. Yes, yes.
25 Q. But if I went to a different reference, the same Koranic
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1 verse that you were translating from, the one you were using,
2 might have a different translation of that specific Koranic
3 verse, would it not?
4 A. Translations can likely differ. That's for sure.
5 Q. So, in fact, if I am translating a specific word from the
6 Koran or a specific saying from the Koran, if I went to your
7 reference that you utilized and then went to a second, third or
8 fourth reference, I might have different translations of that
9 specific Koranic verse?
10 A. Follow me, please. Are you saying that we translate the
11 verses of the Koran? No, we don't. The versus of the Koran
12 stay as-is, as whoever is the translator of that particular
13 book, whether it's the one I use or any other. The verses of
14 the Koran are not translated by us. It's taken from different
15 books. We do our translation of other speech, other than the
16 verses. The verse stays a verse, as quoted in Arabic, said in
17 English, same way as it is quoted in Arabic. We don't
18 translate verses.
19 Q. But you've told us that you made reference to a translation
20 of the Koran, have you not?
21 A. What do you mean, I made reference to.
22 Q. You used a reference book, translating Koranic versus, did
23 you not? You said you used a specific reference book?
24 A. I think there is a confusion here.
25 Q. Withdrawn.
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1 When did you use the book that you've just described?
2 For what purpose?
3 A. The translation, the Koran itself?
4 Q. Yes.
5 A. I used it to get out the Koranic verses that I quoted in
6 italics.
7 Q. And those verses would be the same through out no matter
8 which reference you would use?
9 A. I can't answer your question because different translations
10 can likely differ in a word or the way it was stated.
11 Q. That's what I was trying to find out. Thank you.
12 A. Okay.
13 THE COURT: Mr. Barkow?
14 REDIRECT EXAMINATION
15 BY MR. BARKOW:
16 Q. Ms. Banout, you were asked on cross-examination by
17 Mr. Stern about whether you took an agent's word for it
18 essentially that a court order was okay. Do you remember those
19 questions?
20 A. Yes.
21 Q. If the agent or anyone had said you to do something that
22 you knew to be illegal, what would you have done?
23 A. I wouldn't do it.
24 Q. If someone asked you to translate something where they were
25 asking someone else to go commit a crime with them, what would
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1 you have done?
2 A. I'd refrain. I'd never do that.
3 MR. BARKOW: Nothing further, your Honor.
4 THE COURT: All right. The witness is excused. The
5 witness may step down.
6 Actually, before you do that, this is going to be a
7 convenient time for us to take our mid morning break. Just
8 stay there for a moment.
9 Ladies and gentlemen, we'll take five minutes. We
10 began a little late -- 10 minutes.
11 Please, remember my continuing instructions not to
12 talk about the case; keep an open mind. All rise, please.
13 (Morning recess)
14 (Continued on next page)
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1 (In open court; jury not present)
2 MR. MORVILLO: Your Honor, I've been informed by all
3 parties that they won't stipulate to the testimony of this
4 witness. In other words, that all of her transcripts that she
5 was going to testify that she prepared are in her opinion
6 accurate translations of the audio that she listened to that
7 are contained on Government Exhibit 1000. I don't have a
8 prepared stipulation at this point -- it's sort of a
9 last-minute development. I can certainly prepare one over
10 lunch and come back and give that to the jury at that time.
11 In addition, your Honor --
12 THE COURT: Will the -- the stipulation is also that
13 the witness is an expert?
14 MR. MORVILLO: Yes. And that in her opinion, it's a
15 true and accurate translation, translations of the audio
16 recordings in Exhibit 1000.
17 THE COURT: And the attributions.
18 MR. MORVILLO: And the attributions is a separate
19 stipulation, your Honor. We already have that.
20 THE COURT: All right.
21 MR. MORVILLO: So there's no need to take up the
22 Court's and jury's time going through the formalities.
23 Obviously, however, once we have concluded testimony of Miss
24 Benjamin, we were going to move into evidence the excerpts of
25 the transcripts, and then we were going to begin the
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1 presentation of the transcripts to the jury, which raises an
2 issue with respect to the audio, with respect to the limine
3 instruction, and the government was going to ask for an early
4 break so that we could straighten out our audio situation here.
5 We were also going to need to discuss with your Honor the
6 limine instruction.
7 THE COURT: Okay.
8 MR. MORVILLO: Just so the Court's aware, we don't
9 have another witness currently lined up for now or the rest of
10 the day today to testify. We're going to be reading some
11 transcripts.
12 THE COURT: Well, the jury usually gets their lunch at
13 1:00 o'clock. Couldn't you read documents until 12:45?
14 MR. MORVILLO: Other than the translations of the
15 audio recordings?
16 THE COURT: Right. I mean, you were going to do that
17 otherwise today anyway, right? No?
18 MR. MORVILLO: If we can just have a minute to confer
19 your Honor, I think we can probably accommodate.
20 THE COURT: There's certainly no reason to use up the
21 jury's time if the parties agree that they're going to
22 stipulate to the witness's testimony. So the witness won't
23 have to testify, but obviously the witness should be kept
24 available if the stipulation doesn't work out. And we can take
25 a slightly longer lunch break, but I would like not to take the
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1 lunch break now because the jury's not going to get lunch until
2 1:00 o'clock.
3 MR. MORVILLO: Okay. Let me just have a moment.
4 THE COURT: 12:45, the jury will take their lunch.
5 MR. MORVILLO: May I just use the witness, your Honor?
6 THE COURT: Yes, the witness is excused, you may step
7 down.
8 MR. BARKOW: Your Honor, we're checking to make sure
9 we have the exhibits lined up to use.
10 (Off the record)
11 MS. BAKER: Your Honor, we do have some additional
12 pieces of Sattar evidence that we would request to publish to
13 the jury by reading it and in some instances by simply
14 scrolling through and displaying it on the screen.
15 THE COURT: All right. Which numbers?
16 MS. BAKER: We are going to begin with the
17 stipulation, which is in evidence as Government Exhibit 2035S.
18 Followed by its corresponding exhibit, which is 2035X. And
19 then we were going to continue with Government Exhibit 2061.
20 Then 2063. Then 2062. Those would be read.
21 THE COURT: Uh-huh.
22 MS. BAKER: And then as far as publication by display
23 to the jury, Government Exhibit 2081 and Government
24 Exhibit 2072.
25 THE COURT: All right. All of those exhibits are
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1 subject to the limiting instruction that the parties had agreed
2 on, that those exhibits are being offered against Mr. Sattar
3 and not against Ms. Stewart or Mr. Yousry. And all of those
4 exhibits are being offered solely with respect to the
5 knowledge, intent and state of mind of Mr. Sattar except that
6 2072 is also being offered with respect to background and
7 context.
8 MS. BAKER: That's correct. And, your Honor, I would
9 ask in addition that before beginning with the reading of the
10 first item, which is 2035S, that we be permitted to remind the
11 jury that this evidence is from the search of Mr. Sattar's
12 residence.
13 THE COURT: Yes. All right. Let's bring in the jury.
14 MS. BAKER: We are now experiencing technical
15 difficulties, your Honor. The hard copies of these exhibits
16 aren't in the courtroom; our paralegal went back to get them.
17 We do have scanned images on the computer. The people who
18 really know how to use the computers are the paralegals. We
19 were going to read right off of the display on the computer
20 system, but we're now experiencing -- we're now unable to work
21 the computers.
22 THE COURT: Hold on one moment. I'm sorry, ladies and
23 gentlemen.
24 (Jury almost enters the courtroom)
25 MS. BAKER: I think we need to call someone in our
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1 office for assistance. We need a moment to do that.
2 THE COURT: When will the paralegals be back?
3 MS. BAKER: She should be back in however much time it
4 takes to walk through the connecting tunnels and walk back with
5 some folders.
6 THE COURT: We'll wait. We'll wait.
7 MR. BARKOW: Your Honor, we have resolved it.
8 THE COURT: You're sure? Bring in the jury?
9 MS. BAKER: Yes, yes.
10 (Continued on next page)
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1 (In open court; jury present)
2 THE COURT: Please be seated all.
3 All right. Ms. Baker.
4 MR. BAKER: Thank you.
5 Your Honor, at this time we ask permission to continue
6 publishing to the jury some of the exhibits already in evidence
7 relating to the search of Mr. Sattar's residence.
8 THE COURT: All right.
9 MR. BAKER: We would like to begin by reading
10 Government Exhibit 2035S.
11 THE COURT: All right.
12 Ladies and gentlemen, these are exhibits as to which I
13 previously gave you a limiting instruction.
14 As you will recall, these exhibits are being received
15 only against Mr. Sattar and not against Ms. Stewart or
16 Mr. Yousry and they are admitted solely with respect to the
17 knowledge, intent, and state of mind of Mr. Sattar and, in
18 addition, Government Exhibit 2072 is also admitted with respect
19 to background and context, but also subject to the other
20 limiting instructions that I just gave you.
21 All right, Ms. Baker.
22 MR. BAKER: Government Exhibit 2035S is a stipulation
23 that states as follows:
24 The parties hereby stipulate and agree that Government
25 Exhibit 2035X is excerpted from, but is otherwise identical to,
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1 Government Exhibit 2035.
2 Your Honor, we would now like to display to the jury,
3 and read, Government Exhibit 2035X.
4 THE COURT: All right.
5 (At this point, Government Exhibit 2035X in evidence
6 was read to the jury by Ms. Baker)
7 MR. BAKER: Your Honor, apparently this is the third
8 page of the document.
9 I am sorry, apparently that is the end of the document
10 as it was found during the search.
11 THE COURT:: Okay.
12 MR. BAKER: We turn now to Government Exhibit 2061 and
13 ask permission to display it and read it.
14 THE COURT: Yes, subject to the same limiting
15 instructions.
16 MR. BAKER: Your Honor, again, this is a document that
17 we will present to the jury as found, although it appears that
18 the pages do not go together.
19 THE COURT: All right.
20 (At this point, Government Exhibit 2061 in evidence
21 was read to the jury by Ms. Baker)
22 MR. BAKER: Your Honor, next we would ask to display
23 and read Government Exhibit 2063.
24 THE COURT: All right, subject to the same limiting
25 instructions, ladies and gentlemen.
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1 (At this point, Government Exhibit 2063 in evidence
2 was read to the jury by Ms. Baker)
3 MR. BAKER: Your Honor, would you like me to continue
4 or would you like to break?
5 THE COURT: We can break now. It's 12:53.
6 All right.
7 Ladies and gentlemen, we will resume after lunch, 2
8 o'clock.
9 Please remember my continuing instructions not to talk
10 about the case. Keep an open mind.
11 All rise please.
12 Follow Mr. Fletcher to the jury room.
13 (Jury left the courtroom)
14 THE COURT: Please be seated.
15 First, would it be helpful to talk among yourselves
16 about any proposed limiting instructions or do you just want to
17 give them to me now?
18 I have a regular instruction that I usually give with
19 respect to translations that are transcripts from a foreign
20 language.
21 MR. BAKER: Your Honor, I think there are two
22 different instructions at issue here. One is with regard to
23 the recordings themselves. That is the issue that Mr. Tigar
24 raised earlier. And then as far as the transcripts, the
25 government proposed, and I don't remember now whether it was in
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1 our original request to charge or whether it was in our
2 objections to Stewart's request to charge, an instruction that
3 specifically addressed the fact that in this case we have both.
4 THE COURT: I was going to go over those at lunchtime
5 and I do have one which takes into account the differences
6 between transcripts of conversations that were in English which
7 are an aid to the jury and transcripts of a foreign language
8 which are in evidence.
9 MR. BAKER: Okay.
10 THE COURT: I can have that and read that to you if we
11 come back a bit earlier from lunch.
12 MR. BAKER: I expect that that would be fine with the
13 government. We had objected to the Stewart request because we
14 didn't believe that it was accurate.
15 As to the recordings themselves and the instruction
16 that Mr. Tigar requested earlier, as your Honor saw I left and
17 tried to look at the relevant case law. I reread the Knohl
18 decision, which Mr. Tigar claimed was in support of his
19 requested instruction, and I find no support in Knohl or
20 elsewhere for an instruction that essentially urges the jury to
21 scrutinize with unusual care recordings of conversations and
22 therefore lacking any such --
23 THE COURT: No, it does say that.
24 MR. TIGAR: Page 440.
25 THE COURT: I am looking at the quote. It's page 440
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1 and it's at the end of the paragraph that begins "we are not
2 unmindful, however" and it says "it is therefore incumbent on
3 the government to produce clear and convincing evidence of
4 authenticity and accuracy as a foundation for the admission of
5 such recordings."
6 MR. BAKER: I found it.
7 I apologize, your Honor.
8 THE COURT: That's okay.
9 MR. BAKER: Let me withdraw and start over.
10 My point is an instruction to scrutinize with care to
11 analogize to a different context like where there has been
12 evidence that a particular witness has previously perjured
13 himself or herself a court will give an instruction to
14 scrutinize such a witness' testimony with care. That is an
15 instruction --
16 THE COURT: Great care.
17 MR. BAKER: Perhaps.
18 That is an instruction given after the fact of the
19 perjury has been established in evidence. The government would
20 suggest that at this point in the proceedings when the
21 affirmative evidence presented by the government authenticates
22 and establishes the reliability of the recordings, that an
23 appropriate instruction would be one similar to what the court
24 gave in its preliminary instructions to the jury that tells the
25 jury that the question of how much weight to give to the
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1 evidence is a question for them to resolve and that essentially
2 this evidence should be treated as all other evidence in that
3 respect. And then depending on the contrary evidence that is
4 presented later in the trial, it may be appropriate for a
5 different instruction to be given later in the trial when there
6 is some evidence in the record that would support the notion
7 that this evidence is deserving of special scrutiny.
8 But for the court to give such an instruction at this
9 time would be essentially pre-figuring what may or may not
10 occur later in the trial and so at this point we ask that the
11 court simply instruct the jury that the question of the weight
12 to be given to the recordings is a question for them to
13 consider as they have previously been instructed.
14 THE COURT: Okay.
15 Mr. Tigar.
16 MR. TIGAR: The government urged the Knohl case on
17 your Honor with great fervor last evening and we looked at that
18 language and thought it was helpful. As I pointed out in my
19 oral presentation, the circuit has with this clear and
20 convincing evidence standard done something different with
21 wiretap evidence. And I don't know what the reasons are, your
22 Honor. Some of them are hidden and maybe what Judge Hurlans
23 was getting at was a little bit like suspicion. But the
24 circuit, at any rate, has said clear and convincing evidence
25 and that I think justifies what the Knohl court said.
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1 You know, it isn't just that old British saying about
2 gentlemen don't listen to other gentlemen's conversations. It
3 is the ubiquity of this evidence makes it very difficult to
4 combat. I think you ought to give the instructions right from
5 the case.
6 MR. BAKER: Your Honor, in the Knohl decision, now
7 that you have pointed me to the right part of it, just before
8 the phrase that paraphrases the instruction, the court says
9 essentially where the evidence is admitted or where the
10 recordings are admitted, "but the evidence is conflicted on
11 these points" -- that is, the points of authenticity and
12 accuracy -- then the court must "caution the jury to scrutinize
13 the evidence with care," and so the government's point is that
14 as of right now there is not that record of conflicting
15 evidence.
16 THE COURT: But, you know, you can dispute evidence by
17 cross as well as on a direct case and I don't recall if in
18 Knohl they are talking solely about essentially the cross
19 examination of the government's witnesses on the chain of
20 custody. That is certainly what a lot of it is about. But
21 there was sufficient evidence with respect to authentication
22 and accuracy for the foundation, but it was the disputes over
23 how the evidence came about that led the court to say what the
24 trial court should say with respect to an instruction. And I
25 will think about it, but Knohl certainly points the way to an
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1 instruction when there is a dispute over authenticity and
2 accuracy.
3 MR. BAKER: Your Honor, I would only point out in
4 addition just based on the structure of the Knohl opinion the
5 previously quoted passage, the one on which Mr. Tigar relies
6 that your Honor directed me to, appears at the end of the
7 portion of the opinion or in the portion of the opinion where
8 the Second Circuit is essentially reciting the law generally.
9 The Second Circuit is not specifically indicating at
10 that point in the opinion that that instruction was in fact
11 given. Later in the opinion -- all I am saying is it's
12 unclear. Later in the opinion, on page 441, just below the top
13 of that page, it describes what actually happened in the trial
14 court in the Knohl case and it says, "Thereafter the jury,
15 after hearing testimony and arguments relative to the
16 reliability and accuracy of the tape, and under proper
17 instructions from the court, reached its own conclusion on that
18 that issue."
19 So that later sentence suggests to me that the way it
20 actually happened in the Knohl case was that, as I said, after
21 there had been conflicting testimony and arguments, which
22 suggests summations, that in its concluding instructions the
23 court gave whatever instructions it gave and so that just goes
24 back to my point that we would request just a "usual weight"
25 instruction at this point in the trial.
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1 THE COURT: Well, I will think about it. But the
2 court did say it must caution the jury, and the other thing is
3 it seems to me that this is a time when I would be giving
4 several instructions to the jury, including the reliability and
5 weight of the evidence as all issues of fact are for you to
6 determine and I have to give instructions to the jury with
7 respect to the use of the transcripts and this would appear to
8 be an appropriate time for another instruction.
9 I will think about it over lunch.
10 Let me ask the next question.
11 I understand there are the two instructions and I will
12 explain those to you after lunch.
13 After those instructions are worked out, are tapes
14 ready to be read with transcripts?
15 There is also a stipulation to be worked out over
16 lunch.
17 MR. BAKER: Correct. And at that point the
18 transcripts are ready. We do have a means of playing the audio
19 at the moment. What we are hoping to do over the lunch hour is
20 bring in the necessary technology for a better means of playing
21 the audio. Currently we would be playing it outloud using
22 essentially a speaker, but given the not very good acoustics of
23 the courtroom our hope is that over the lunch hour we can
24 arrange for headsets so that all of the jurors and the parties
25 and attorneys will be able to listen to the recordings with the
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1 headsets. But we do believe that either way we are ready to
2 begin presenting through the playing of certain recordings and
3 the presentation of the transcripts.
4 MR. TIGAR: Does the government intend with each
5 recording to play the SRI or to exhibit or display that to the
6 jury?
7 MR. BAKER: We do not because the SRI, or the relevant
8 SRI, which is the date and time of the call and the telephone
9 number on which it was intercepted, appear in the header of
10 each transcript and that is how we anticipated presenting that
11 information about each call to the jury.
12 In addition, it is not the government's intention to
13 play every call for the jury. Obviously English-language calls
14 need to be played because the recording is the evidence and the
15 transcript is an aid to the jury.
16 As to Arabic calls, it is the government's intention
17 to play certain calls so that the jury can hear samples for
18 themselves of how a call sounds or perhaps as the trial
19 progresses play particular calls for particular reasons if a
20 tone or inflection or voice is important for some reason, but
21 it is not our intention to subject the jury to hearing each
22 call twice by listening to the recording in Arabic and then
23 having it read to them in English.
24 MR. TIGAR: We have no objection to that procedure,
25 your Honor. During our presentation we will present the SRIs
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1 because of the oddball information that is in them.
2 THE COURT: Okay.
3 Anything else that I should resolve before lunch?
4 Otherwise you have got reasonable work to do and I
5 will see you 10 minutes before 2.
6 (Luncheon recess)
7 (Continued on next page)
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1 A F T E R N O O N S E S S I O N
2 2:00 p.m.
3 (In open court; jury not present)
4 THE COURT: Good afternoon, all. Be seated.
5 MR. TIGAR: We will proceed, your Honor, with this --
6 we agreed to it and ask that it be given.
7 MS. BAKER: Your Honor, the government has received it
8 and read it. We respectfully disagree with it, for the reasons
9 I stated earlier, but obviously we take it as a ruling by the
10 Court.
11 THE COURT: You disagree only with the second
12 paragraph, I take it, about disputes over authenticity.
13 MS. BAKER: Correct.
14 THE COURT: Okay. All right. Are we going to bring
15 the jury in? Are we ready? Are the technical issues resolved?
16 I see some headphones.
17 MS. BAKER: Your Honor, we believe that all of the
18 technical issues are resolved and that all of the technology is
19 working and we may play the first call.
20 Just for the Court's information, the first call,
21 Exhibit 1001, is an English language call. And we will be
22 playing that one. And that -- whenever the Court will like to
23 tell the jury about the instruction, and so on. That call,
24 because it's in English, we would ask that while it's playing
25 that we be permitted to display the corresponding excerpted
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1 transcript.
2 And then the next few calls, 1002, 1003, 1004, are
3 Arabic language calls. As to those, we would ask to play them
4 in Arabic but then we would, after playing them in Arabic, ask
5 to go back and display and read aloud the English language
6 translations. And if the Court requires -- if the Court needs
7 to know anything about the operation of the headsets to be able
8 to tell it to the jury, Mr. Barkow can speak to that.
9 MR. TIGAR: Your Honor, the first call, 1001X, we
10 would like to know against whom it's being offered and for what
11 purpose. It is a call between Mr. Sattar and Mrs. Sattar in
12 English on the 22nd of April, 1996, Recounting what Mr. Sattar
13 found out -- we'd like to know that, so we would request an
14 instruction.
15 MS. BAKER: Your Honor, Government Exhibit 1000 --
16 withdrawn.
17 Let me start by just saying, so that everyone
18 understands the numbering and lettering system: The audio
19 recording itself for each call is the number without a letter.
20 So 1001 is the recording itself which is contained on the DVD
21 that is marked as 1000.
22 The excerpted transcript 1001X, "X" is an excerpted
23 transcript; "T" is a whole. This call is being offered to
24 prove the existence of the Count 2 conspiracy to kill and
25 kidnap. It's a call in which Sattar discusses with his wife
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1 the fact that Mustafa Hamza -- who other evidence has shown and
2 will show is one of the leaders of the Islamic group -- Mustafa
3 Hamza announced that the Islamic group was going to kidnap
4 Americans until the sheikh -- meaning Omar Abdel Rahman -- is
5 released. So this is evidence offered to prove the existence
6 of the Count 2 conspiracy.
7 And, as the government has argued previously, because
8 the government needs to prove the Count 2 conspiracy in order
9 to prove Counts 4 and 5, we request that any limiting
10 instruction take that into consideration.
11 MR. RUHNKE: I believe that your Honor has dealt with
12 exactly that same situation before, and it has a limiting
13 instruction, that this is offered not against Mr. Yousry or
14 Ms. Stewart, but to prove the Count 2 conspiracy only and
15 should not be considered as evidence against Mr. Yousry or Miss
16 Stewart. It's much the same issue in the context of the Sattar
17 searches. We discussed that at length.
18 THE COURT: Yes.
19 MR. PAUL: Your Honor, just so I understand, is it
20 your Honor's intention to read a limiting instruction before
21 each and every transcript as it is read as to how the jury can
22 formulate and apply these transcripts to which count and which
23 defendant? Because if so, on behalf of Mr. Sattar, we will
24 object.
25 THE COURT: Well, I asked the parties centrally what
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1 instructions they wanted or sought with respect to these calls,
2 and worked on the instructions with respect to the calls before
3 lunch. No one raised an issue with respect to this with me
4 before lunch. I'm -- or indeed, up until now. Let's -- and so
5 the issues are -- the issue that was raised by Mr. Tigar and
6 averred to by Mr. Ruhnke is the question of, quote, relevance,
7 or against whom the exhibit -- against whom the conversation is
8 offered. And as to that, the government essentially says
9 it's -- as I understand it -- offering it as to all of the
10 defendants. The reason that it's offering it as to all of the
11 defendants is it goes toward the background and context of the
12 Count 2 conspiracy, and -- first.
13 And, second, the existence of the Count 2 conspiracy
14 is part of the proof with respect to Defendants Ms. Stewart,
15 Mr. Yousry, with respect to Counts 4 and 5. And that's true.
16 I went back and looked at Ms. Stewart's proposed instruction,
17 for example, with respect to Count 5, and there's a difference
18 between the -- Ms. Stewart's proposed instruction and the
19 government's proposed instruction as to whether the element of
20 the offense is preparation for or the actual violation of --
21 preparation or the actual conspiracy to kill and kidnap.
22 But in any event, the evidence under either
23 instruction is relevant to both Ms. Stewart and Mr. Yousry.
24 And there comes a point where, for example, the defendants
25 could not reasonably argue, you know, you can't consider any
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1 evidence of the Count 2 conspiracy against us because it's
2 being offered for the -- it goes toward evidence of the Count 2
3 conspiracy. If that were right, at the end of all of the
4 evidence, the defendants could say there's no evidence of a
5 Count 2 conspiracy against us. That's been offered against us.
6 And then point to the elements of the offense in Counts 4 and 5
7 and say, No evidence.
8 So it is true that evidence of a Count 2 conspiracy is
9 relevant to Ms. Stewart and to Mr. Yousry. I give careful
10 instructions when asked, and sometimes even when not asked,
11 with respect to everything that comes before me. And I
12 resolved the issues with respect to the Sattar search, and
13 there was agreement with respect to those instructions with
14 respect to the Sattar search.
15 Now, these telephone calls. To the extent that the
16 argument is relevance or to what does it go, the government
17 says it goes toward the Count 2 conspiracy, which is relevant
18 to all of the defendants. That I explained in somewhat more
19 detail.
20 MR. RUHNKE: That's really not right.
21 THE COURT: I'm sorry?
22 MR. RUHNKE: That's really not right. The Count 2 --
23 the evidence regarding Count 2 becomes relevant to the
24 defendants Yousry and Stewart only at the moment that the jury
25 determines beyond a reasonable doubt that the conspiracy charge
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1 in Count 2 actually existed. So that in its coming in for --
2 as an element of, in a sense, Counts 4 and 5 conspiracy, if the
3 jury doesn't find that Count 2 exists, none of that evidence
4 would ever have been admissible against Ms. Stewart or
5 Mr. Yousry. That's the same way we resolved this issue when it
6 came up in exactly the same context in the results of the
7 search of Mr. Sattar's home. There's a deja vu quality to the
8 argument: The government said the same thing; we're saying the
9 same thing. Some of these conversations will be admissible,
10 the government will argue, against all defendants and no
11 limiting instruction will be required. But some won't.
12 And when the conversation is not admissible against my
13 client -- first, I'm obligated to request a limiting
14 instruction. I'm obligated. That's the fair way of treating
15 this evidence when it comes to my client. And before we broke
16 for lunch, the issue was: What is the global instruction we're
17 going to be giving the jury on how to handle these tapes? Not
18 what tape was admissible with what defendant -- what defendant,
19 what tape?
20 I don't think it's fair to say that we hadn't thought
21 about this issue at all. It depends on what's the first thing
22 that came through their offer, and who's it against. That's
23 the government's proffer.
24 MS. BAKER: Your Honor, the government indicated
25 sometime ago that it intended to present the telephone call
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1 evidence chronologically, and the defendants have known the
2 universe of calls for some time. And chronologically, this
3 call is the earliest call, and the defendants for sometime have
4 had various full and excerpted versions of the transcripts of
5 all of these calls. So objections like this that go to the
6 content of the call and how that content can be used by the
7 jury could certainly have been raised prior to this moment.
8 On merits, the government believes that your Honor's
9 explanation a few moments ago was exactly correct. And
10 whatever instruction was given previously, the law is as your
11 Honor has just stated it.
12 The government cannot prove Counts 4 and 5 without
13 proving preparation for or the existence of the Count 2
14 conspiracy. And so the government submits that no limiting
15 instruction is necessary here, but if any instruction were to
16 be given, that it would be sufficient not to single out
17 defendants by name, but to say, with respect to this one
18 particular call, that this call is offered as evidence with
19 respect to Count 2. That would be sufficient at this point,
20 and then later, when the Court gives the jury its overall set
21 of instructions regarding the charges, it will become clear to
22 the jury that they must find preparation for or the existence
23 of the Count 2 conspiracy in order to find Counts 4 and 5.
24 THE COURT: That was in fact an alternative that was
25 offered by Mr. Ruhnke at one time. 1001 is offered with
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1 respect to the Count 2 conspiracy.
2 MR. RUHNKE: Yes? I didn't know if you were looking
3 at me or Ms. Baker.
4 THE COURT: No. Ms. Baker suggests as an
5 instruction -- this is offered with respect to the Count 2
6 conspiracy.
7 MR. RUHNKE: It is offered with respect to the Count 2
8 conspiracy, but what does that tell the jury? Your Honor says
9 this is a suggestion I made earlier. I accept that, I probably
10 did. I'm not sure what the context is. I'll certainly accept
11 that at some point I referred to Count 2, but if you were to
12 deliver that limiting instruction to the jury and say, Ladies
13 and gentlemen, please tell me what that means to you as you
14 listen to this evidence -- they wouldn't have a clue.
15 The answer is that it's admissible against -- it's not
16 admissible against Mr. Yousry or Ms. Stewart. And that's a
17 fact. That conversation is not going to make evidence against
18 them. It goes to proof of the Count 2 conspiracy. Mr. Yousry
19 or Ms. Stewart are not named in Count 2.
20 THE COURT: But the government is required to prove
21 that Count 2 -- the preparation for or the actual Count 2
22 conspiracy as part of the proof with respect to Counts 4 and 5.
23 So --
24 MR. RUHNKE: I agree.
25 THE COURT: So the proof of the Count 2 conspiracy
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1 cannot be excluded from evidence with respect to Mr. Yousry and
2 Ms. Stewart.
3 MR. RUHNKE: I agree.
4 THE COURT: But if that's true, then the instruction
5 cannot be correct, that it cannot be considered against them.
6 MR. RUHNKE: It would be a much more difficult
7 limiting instruction to craft if we had been severed and the
8 government was setting out to prove count -- prove a conspiracy
9 in which none of the defendants are named.
10 THE COURT: If you had been severed, there would be no
11 instruction. The evidence would come in against both
12 defendants because the evidence is relevant against both
13 defendants, because the proof of the Count 2 conspiracy is
14 relevant to Counts 4 and 5.
15 MR. RUHNKE: Your Honor, respectfully, the evidence
16 would not come in against both defendants. If we had been
17 severed, your Honor would have to craft some kind of
18 instruction which would say, Although the defendants before you
19 are not charged with participating or being a member of a
20 conspiracy to kill and kidnap in Egypt, it is the government's
21 duty to establish to your satisfaction beyond a reasonable
22 doubt that such a conspiracy did exist, and if you ever get to
23 that point, the fact that the conspiracy existed becomes
24 relevant to Counts 4 and 5.
25 THE COURT: But the jury would then hear all of that
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1 same evidence and they would hear it in the case solely against
2 Ms. Stewart and Mr. Yousry.
3 MR. RUHNKE: I'm not agreeing that they would hear it.
4 They're going to hear it in this case as well. However, in
5 this case there is a Count 2 conspiracy.
6 THE COURT: Hold on. They would hear it in a case
7 solely against Ms. Stewart and Mr. Yousry and they would hear
8 it because there is a Count 2 conspiracy and because proof of
9 the Count 2 conspiracy is relevant to Ms. Stewart and
10 Mr. Years. So --
11 MR. RUHNKE: This may be a quarrel of words. The
12 existence, ultimate proof of the existence of a Count 2
13 conspiracy may become relevant at some point as a subelement of
14 Counts 4 and 5. Not the complete elements of 4 and 5, but as
15 subelement of Counts 4 and 5. Proof of Count 2 does not equate
16 to proof of Counts 4 and 5, certainly. Because Count 2 is
17 established doesn't mean therefore they are guilty of Counts 4
18 and 5. Obviously.
19 THE COURT: Only -- it's only part of the evidence
20 that the government would have to prove and admit against
21 Ms. Stewart and Mr. Yousry.
22 MR. RUHNKE: I'm quarreling with the words "admit
23 against". It's proof of an event, which if proved -- the
24 evidence -- take the 1001 in which Mr. Sattar has a
25 conversation with his wife where his wife says she read
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1 something in the newspaper about some guy saying something.
2 And the guy is saying, Let's kidnap Americans until the sheikh
3 is released. That's what I read in the newspaper. That's what
4 the newspaper is reporting. I'm obviously paraphrasing it to
5 make it more hypothetical than it is.
6 At a separate trial, the jury would -- it would ill
7 serve the jury for them to think that Ms. Stewart and
8 Mr. Yousry are to be held liable as coconspirators for that
9 conversation, because that wouldn't be the case. That would be
10 an independent piece of evidence which the government is using
11 to attempt to prove up Count 2 as actually existing. It would
12 not be evidence that could be used against Mr. Yousry or Miss
13 Stewart unless and until they found that Count 2 existed and
14 then they wouldn't really be using that evidence against them,
15 they'd be using it to prove Count 2. And a function of Count 2
16 is it becomes, as I said, a subelement of the charges contained
17 in 4 and 5. It is under no circumstances ever evidence that's
18 admissible as against Ms. Stewart and Mr. Yousry. It would
19 have to come in at a separate trial. The jury would have to be
20 given a limited instruction at a separate trial as well.
21 So why are you giving this evidence when the
22 government -- the government shouldn't be surprised and the
23 representatives of the Court should not be either that on a
24 piece of evidence by evidence by evidence basis, there's been a
25 lot of evidence that's been admitted for limited purpose, and
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1 that will continue to be the case with regard to the tape
2 recordings.
3 THE COURT: What is your proposal?
4 MR. RUHNKE: My proposal is the evidence here is
5 admissible only on the charges contained in Count 2 and should
6 not be considered as to Ms. Stewart or Mr. Yousry. That's my
7 proposal.
8 THE COURT: Government?
9 MS. BAKER: Your Honor, that simply misstates the law.
10 The first part of it is accurate, which is that the evidence is
11 offered in connection with Count 2; but the latter part of it,
12 that it is not admissible against Mr. Yousry and Ms. Stewart,
13 is simply inaccurate for the reasons your Honor was just
14 explaining.
15 Your Honor told the jury during jury selection, and I
16 believe again in preliminary instructions, which defendants
17 were charged in which counts. Your Honor will explain that to
18 the jury in detail at the end of the case, and so at this point
19 in the trial, so as not to embark now on those complicated
20 instructions, we submit that it is most legally correct and
21 accurate and sufficient to simply instruct them that this
22 evidence is offered in connection with Count 2 and not say
23 anything about which particular defendants it therefore is
24 offered against and not against.
25 The only other thing I would add, in the middle of
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1 this colloquy I was reminded by my colleagues that actually
2 this evidence was also being offered in support of Count 3,
3 which is the charge of solicitation of crimes of violence
4 against Mr. Sattar. And so we would amend our request that if
5 the Court is going to give an instruction, that the instruction
6 be that this particular call is offered with respect to
7 Counts 2 and 3.
8 THE COURT: All right. I will give an instruction
9 that is offered with respect to Counts 2 and 3, which I believe
10 is the -- the legally correct instruction.
11 And if the parties -- and I will say, you know, I've
12 explained the different conspiracies alleged in this case. And
13 I will explain it again in final instructions, the different
14 charges in this case. And I will explain it to them again in
15 final instructions.
16 If anyone wants me at this point to repeat the charges
17 on the individual conspiracies, I will just tell them that this
18 is offered in connection with the conspiracy charge in Count 2
19 and count -- with the charges in Counts 2 and 3.
20 MR. RUHNKE: Your Honor -- your Honor has obviously
21 objected to the requests we've made and I would rest on that.
22 THE COURT: All right. Anyone else want to be heard?
23 What about after we get through 1001?
24 MR. RUHNKE: Your Honor, I mean, the government
25 certainly has a position as to which transcripts it's offering
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1 as to which defendants. And where they're being offered --
2 THE COURT: I mean, rather than taking another break
3 after we get through 1001.
4 MR. RUHNKE: I agree with that.
5 THE COURT: -- I'm raising what I should tell the jury
6 with respect to what comes after 1001, and what are the next
7 transcripts?
8 MR. RUHNKE: Your Honor, we are not in a position to
9 know who the government is offering these against, frankly.
10 We've been given transcripts -- we have been given
11 translations; we've been dealing with them for months. And if
12 the government stands up and says, This is offered against all
13 three defendants, which we've never had an opportunity really
14 to work out, we might object and we might not object. It's --
15 I don't have any -- I mean, there's nothing that's gone on the
16 floor that has parsed out this kind of a limitation, at least
17 not that I remember. I'm not saying it couldn't have happened
18 in the past, but I can't remember it happening.
19 THE COURT: Well, you know, sufficient unto the day,
20 we can get through 1001, and I've explained the instruction I
21 would give on 1001: That it's offered in connection with
22 Counts 2 and 3. And my question is, do we get to any of the
23 other transcripts today or not? Or do we call it a day after a
24 1001 and finish the day with reading other documents? And then
25 spend the rest of the time, if the parties wish, going over the
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1 next series of transcripts if there are requests for any
2 limiting instructions?
3 I do have some -- I mean, I do have some appreciation,
4 sympathy, for the arguments on both sides. I mean, people saw
5 the transcripts coming; they knew the order they were going to
6 be done. If there were requests for limiting instructions that
7 I would have to rule on, I would have hoped that they would be
8 brought to my attention before we come in after lunch ready to
9 put on headphones and begin to listen.
10 So my question now is, the next -- after 1001, the
11 next tapes were going to be in Arabic, right?
12 MR. RUHNKE: Your Honor, it's my understanding --
13 maybe the government can tell me where I'm wrong -- that the
14 next series of tapes in large numbers are admissible only or
15 offered only on the Counts 2 and 3 conspiracies.
16 No? All right. The government is correcting me.
17 MS. BAKER: No, your Honor. In fact, the government's
18 position is that the next several calls, 1002, 1003, 1004, are
19 offered for, among other purposes, the Count 1 conspiracy in
20 which all three defendants were charged, and therefore never
21 offered against all defendants -- and I don't mean to say that
22 they're offered only for Count 1, but including for Count 1,
23 and therefore no limiting instruction would be appropriate with
24 respect to those three calls.
25 THE COURT: 1002, three and four?
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1 MS. BAKER: Correct. And your Honor, we believe that
2 that will be true with respect to the overwhelming majority of
3 the remaining calls.
4 MR. RUHNKE: Then perhaps what the government could do
5 is identify for all of us those conversations it is not
6 offering as to all three defendants, if that's a much smaller
7 number. And we can look at them. I mean, I'm not saying this
8 took us by surprise, because everyone knew the information as
9 stated. For example, we are dealing with the Sattar searches.
10 We went through a process. We should perhaps have gone through
11 the same process with the tapes. And to the extent the defense
12 is at fault, I apologize.
13 THE COURT: Never necessary to apologize, Mr. Ruhnke.
14 MR. RUHNKE: The alternative would be to just sort of
15 let this happen, and if there are limited purposes, we have an
16 obligation to defend against that.
17 THE COURT: How long is 1001?
18 MS. BAKER: Your Honor, 1001 is very, very brief.
19 Playing it and following along will take maybe a minute or
20 less. I mean the transcript is only about one page long.
21 THE COURT: Well, the representation is that 1002,
22 1003, 1004, are offered against all defendants. 1001 is
23 offered with respect to Counts 2 and 3. 1002, three and four
24 are offered with respect to all defendants.
25 Now, if there is -- if you want, if you want more time
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1 or you just -- there's a stipulation that has to be read with
2 respect to the other translator.
3 MR. MORVILLO: Your Honor, there are three
4 stipulations. There's also a little bit more of the Sattar
5 search evidence we wanted to read before we started with the
6 transcripts. Maybe a paragraph. Not much. I don't want to
7 overstate it. Display it to the jury.
8 MS. BAKER: Right, and then the remaining Sattar
9 search evidence is the rather quick paging through on the
10 display of two exhibits. Maybe that will take, I don't know,
11 five or 10 minutes. And then the reading of the document that
12 is only, as indicated, a page long.
13 So although there is some other material to be
14 covered, we don't think that that other material we just
15 enumerated combined with Government Exhibit 1001 would take the
16 remainder of the day.
17 THE COURT: I'm not suggesting -- just taking us to
18 the next break.
19 MR. MORVILLO: I'm not confident it would do that
20 either, your Honor.
21 THE COURT: I'm sorry?
22 MR. MORVILLO: I'm not confident it would do that
23 either.
24 THE COURT: Oh, sure, it will. I can call the next
25 break.
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1 MR. MORVILLO: So ordered.
2 THE COURT: And -- because, there's -- there are the
3 stipulations, the remainder of the Sattar exhibits, the
4 instruction with respect to the tapes, and playing the first
5 tape, before we go to a break to consider the other tapes. And
6 defendants are wanting the break, so before we go to 1001, we
7 really should go to a break.
8 MR. RUHNKE: In terms of time, your Honor, I'm looking
9 at 1002, that's 35 pages long. So I don't know how much more
10 we'll get through than that today.
11 THE COURT: All right. I'm certainly also prepared to
12 deal at the break if necessary with the remaining documents
13 from the Sattar search, also. So let's -- you haven't passed
14 out these to the jury yet.
15 MR. BARKOW: They are, your Honor -- they're sitting
16 on their chairs.
17 THE COURT: This just modulates the volume.
18 MR. BARKOW: Only two things they need to know, the
19 ball has to be facing outwards. And they're all off right now,
20 and the knob modulates the volume. But they're all in the off
21 position now, so when the jurors start, they won't be too loud
22 for them. And then they can turn it up as loud as they need.
23 THE COURT: All right.
24 MR. MORVILLO: Your Honor, just a matter of logistics,
25 when I'm finished reading the stipulations I'm going to be
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1 offering into evidence the excerpted transcripts from the calls
2 prepared by the two language specialists. It's a very, very
3 long list of calls. I'm happy to read each one individually --
4 that will take some time -- but at the same time, I'm also
5 prepared to just offer the "X" exhibits that correspond to the
6 key exhibits that the witnesses testified with respect to and
7 with respect to the stipulation that's going to be read.
8 If the Court has a preference with respect to that,
9 I'm happy to oblige.
10 THE COURT: I don't have a preference so long as the
11 record is clear. And I think you may have to read the numbers
12 to make the record clear as to what's being offered and
13 admitted.
14 MR. MORVILLO: I'm happy to do that, your Honor. I
15 just didn't want you to think that I was wasting time.
16 THE COURT: No. I'll admit them subject to any
17 requests for any appropriate limiting instructions that I may
18 be asked to give.
19 Okay. Let's call in the jury.
20 (Continued on next page)
21
22
23
24
25
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1 (In open court)
2 THE COURT: Please be seated, all.
3 Good afternoon, ladies and gentlemen.
4 JURORS: Good afternoon.
5 THE COURT: Good to see you. You've got some
6 earphones on your chair, and you can just hold them for the
7 moment. I will explain to you a little later on in the
8 afternoon how to use those earphones right before you will have
9 an opportunity to use them. So at this point, just hold onto
10 them. All right?
11 Ms. Baker.
12 MS. BAKER: Your Honor, at this point the government
13 would like to continue with the publication of some of the
14 evidence from the search of Sattar's residence.
15 THE COURT: All right.
16 MS. BAKER: We would ask to begin by displaying to the
17 jury one page at a time, government Exhibit 2081.
18 THE COURT: All right. And ladies and gentlemen, this
19 is subject to the limiting instructions that I had given you
20 before lunch: This evidence is being offered only against
21 Mr. Sattar and not against Ms. Stewart or Mr. Yousry; and it's
22 being offered with respect to the knowledge, intent and the
23 state of mind of Mr. Sattar.
24 And 2072 is also being offered with respect to
25 background and context.
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1 Okay?
2 MS. BAKER: This is the top portion of the first page
3 of Government Exhibit 2081. The original exhibit is individual
4 business cards, your Honor, but this is a color copy for
5 presentation.
6 (At this point, Government Exhibit 2081, received in
7 evidence, was displayed to the jury)
8 MS. BAKER: And this is the back of the same page.
9 And this is the back of that page.
10 And this is the back of that page.
11 MR. DEMBER: Excuse me just one moment.
12 (Off the record discussion)
13 MS. BAKER: Sorry, the last page of Government
14 Exhibit 2081.
15 Your Honor, we'd ask to exhibit now in the same manner
16 Government Exhibit 2072.
17 THE COURT: Okay. I've already given limiting
18 instructions regarding 2072.
19 MS. BAKER: I'll need to change pages on this. The
20 original document is one long continuous strip of paper.
21 THE COURT: Okay.
22 MS. BAKER: I have to show it on the ELMO.
23 THE COURT: Okay.
24 (At this point, Government Exhibit 2072, received in
25 evidence, was displayed to the jury)
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1 MS. BAKER: Your Honor, that was the first document
2 within 2072. There are a continuous set of documents. I will
3 now continue with the others.
4 THE COURT: Okay.
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
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1 MR. BAKER: Your Honor, that completes that exhibit,
2 and, finally, we would ask permission to display and read to
3 the jury Government Exhibit 2062.
4 THE COURT: All right. I will give limiting
5 instructions on this exhibit, ladies and gentlemen, the same
6 limiting instructions.
7 (At this point, Government Exhibit 2062 in evidence
8 was read to the jury by Ms. Baker)
9 THE COURT: All right.
10 MR. MORVILLO: Your Honor, at this time I would offer
11 into evidence three stipulations, Government Exhibit 1000S,
12 Government Exhibit 1313, and Government Exhibit 1314.
13 THE COURT: All right.
14 No objection, Government Exhibits 1000S, 1313 and 1314
15 are received in evidence.
16 (Government's Exhibits 1000S, 1313 and 1314 received
17 in evidence)
18 MR. MORVILLO: May I read and publish these exhibits
19 to the jury, your Honor?
20 THE COURT: Yes.
21 (At this point, Government Exhibit 1000S in evidence
22 was read to the jury by Mr. Morvillo)
23 MR. MORVILLO: If I may, your Honor, read the
24 attachment.
25 THE COURT: All right.
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1 (Attachment read)
2 MR. MORVILLO: May I read Government Exhibit 1313,
3 your Honor?
4 THE COURT: Yes.
5 (At this point, Government Exhibit 1313 in evidence
6 was read to the jury by Mr. Morvillo)
7 MR. MORVILLO: May I read Government Exhibit 1314,
8 your Honor?
9 THE COURT: Yes.
10 (At this point, Government Exhibit 1314 in evidence
11 was read to the jury by Mr. Morvillo)
12 MR. MORVILLO: Your Honor, at this time the government
13 would offer into evidence Government Exhibit 1000, Government
14 Exhibit 1015 and the following X transcripts: 1001X, 1002X,
15 1009X, 1010X, 1011X, 1012X, 1016X, 1017X, 1022X, 1023X, 1025X,
16 1027X, 1028X, 1029X, 1030X, 1032X, 1033X, 1035X, 1044X, 1046X,
17 1047X, 1049X, 1051X,1054X, 1060X, 1061X, 1062X, 1067X, 1092X,
18 1093X, 1099X, 1102X, 1104X, 1120X, 1121X, 1122X, 1123X, 1124X,
19 1125X, 1126X, 1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X,
20 1134X, 1135X, 1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X,
21 1167X, 1169X, 1179X, 1180X, 1181X, 1183X, 1184X, 1188X, 1189X,
22 1192X, 1194X, 1199X, 1200X, 1205X, 1212X, 1214X, 1217X, 1226X,
23 1228X, 1229X, 1003X, 1004X, 1005X, 1006X, 1007X, 1008X, 1013X,
24 1014X, 1026X, 1031X, 1045X, 1052X, 1053X, 1069X, 1071X, 1088X,
25 1089X, 1090X, 1091X, 1094X, 1100X, 1101 X, 1111X, 1112X, 1117X,
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1 1119X, 1136X, 1143X, 1144X, 1152X, 1161X, 1168X, 1170X, 1182X,
2 1186X, 1190X, 1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X,
3 1222X, 1223X, 1224X, 1227X and 1230X.
4 THE COURT: All right.
5 MR. TIGAR: Is counsel done with the list?
6 MR. MORVILLO: Yes, I am.
7 MR. TIGAR: I wanted to make sure that the record is
8 clear with respect to our position on all of this and that I
9 need not say more.
10 THE COURT: All right. We can certainly take it up at
11 the break just to make sure that I am clear.
12 Those exhibits are all received in evidence such as
13 has been given with limiting instructions.
14 (Government's Exhibits 1001X, 1002X, 1009X, 1010X,
15 1011X, 1012X, 1016X, 1017X, 1022X, 1023X, 1025X, 1027X, 1028X,
16 1029X, 1030X, 1032X, 1033X, 1035X, 1044X, 1046X, 1047X, 1049X,
17 1051X,1054X, 1060X, 1061X, 1062X, 1067X, 1092X, 1093X, 1099X,
18 1102X, 1104X, 1120X, 1121X, 1122X, 1123X, 1124X, 1125X, 1126X,
19 1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X, 1134X, 1135X,
20 1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X, 1167X, 1169X,
21 1179X, 1180X, 1181X, 1183X, 1184X, 1188X, 1189X, 1192X, 1194X,
22 1199X, 1200X, 1205X, 1212X, 1214X, 1217X, 1226X, 1228X, 1229X,
23 1003X, 1004X, 1005X, 1006X, 1007X, 1008X, 1013X, 1014X, 1026X,
24 1031X, 1045X, 1052X, 1053X, 1069X, 1071X, 1088X, 1089X, 1090X,
25 1091X, 1094X, 1100X, 1101 X, 1111X, 1112X, 1117X, 1119X, 1136X,
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1 1143X, 1144X, 1152X, 1161X, 1168X, 1170X, 1182X, 1186X, 1190X,
2 1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X, 1222X, 1223X,
3 1224X, 1227X and 1230X received in evidence)
4 MR. TIGAR: Thank you, your Honor.
5 THE COURT: Okay. All right.
6 MR. MORVILLO: Your Honor, the government would at
7 this time ask for permission to play Government Exhibit 1001
8 and hand out Government Exhibit 1000 or display for the jury
9 Government Exhibit 1001X.
10 THE COURT: Okay.
11 Ladies and gentlemen, let me give you an instruction.
12 The government has offered evidence in the form of
13 recordings of telephone calls, specifically Government Exhibits
14 1000 and 1015 which are now in evidence. You have heard
15 disputes over the authenticity and accuracy of the recording.
16 Therefore, I caution you that you should scrutinize this
17 evidence with care.
18 The reliability and weight of this evidence, as with
19 all issues of fact, is for you, the jury, to determine. Some
20 of the recordings contain portions that are in English. The
21 government will be permitted to display documents which it
22 prepared containing the government's interpretation of what
23 appears on the recordings which have been received as evidence.
24 Those are displayed as an aid or guide to assist you in
25 listening to the recordings which are in evidence. However,
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1 the typed documents are not in and of themselves evidence.
2 Therefore, when the recordings are played I advise you to
3 listen very carefully to the recordings themselves. You alone
4 should make your own determination of what appears on the
5 recording based on what you heard. If you think you hear
6 something differently from what appears on the transcript, then
7 what you hear is controlling. Let me say again, you, the jury,
8 are the sole judges of the facts.
9 Some portions of the recordings are in Arabic. It was
10 necessary for the government to obtain translations of those
11 conversations into English so that you, the jury, could
12 understand the recordings. The transcripts or portions of
13 transcripts of those conversations that are in Arabic embody
14 the testimony of the Arabic translators as to what appears in
15 the recordings. These transcripts were admitted into evidence.
16 To the extent that you accept or reject the testimony of those
17 witnesses, you may accept or reject the transcripts themselves
18 of the Arabic conversations.
19 Remember that the jury is the ultimate fact finder
20 and, as with all evidence, you may give the transcripts such
21 weight, if any, as you believe they deserve.
22 Now, at this point, ladies and gentlemen, a recording
23 will be played and you will be asked to listen to the
24 recording, and I believe that the recording is in English and
25 so you should take my instruction with respect to transcripts
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1 of what is in English being an aid to you in listening to the
2 recording which is in evidence. And to listen you should put
3 on the earphones when the recording is played. And there is a
4 little dot on the front of the earphones. You should make sure
5 that that dot is pointing out so that you can receive what
6 comes through the earphones, and there is a little knob on the
7 earphones in which you can adjust the volume. It should be
8 turned down now so that you don't hurt your ears, but you can
9 turn it up if you think that it's necessary to do that.
10 All right.
11 MR. BAKER: Your Honor, I believe the headphones may
12 actually be in the off position at the moment and so the jurors
13 may need to turn it up just a little bit to turn it on by the
14 volume. Also, before we start playing the first recording of
15 the Exhibit 1001, may we put the transcript on the screen and
16 read the header portion of the transcript to the jury which is
17 the identifying information of the call?
18 THE COURT: Yes.
19 And I should also add one other thing, ladies and
20 gentlemen. I have instructed you with respect to the various
21 charges in the case and I have reviewed with you in the course
22 of the preliminary instructions that I gave you the charges by
23 counts in the indictment, and I explained that the indictment
24 contains simply charges. The indictment isn't evidence of
25 anything and I explained and emphasized to you that the
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1 indictment is not evidence of anything.
2 In order to keep track of certain evidence I instruct
3 you that the first recording, 1001, is being offered with
4 respect to Counts 2 and 3 of the indictment and, again, I will
5 give you further instructions in my final instructions to you.
6 All right.
7 MR. BAKER: May we display the top of the first page
8 of Government Exhibit 1001X?
9 THE COURT: Yes.
10 MR. BAKER: Call primarily in English.
11 Monitor number: 4.
12 Line ID: 7184423513.
13 Session start: 04/22/1996, 10:03:54.
14 Call direction: Unknown.
15 Contact ID: Blank.
16 Audio file name: 19960422 underscore 100354
17 underscore 17184423513.
18 Participants: Sattar equals Ahmed Abdel Sattar.
19 L. Sattar Lisa Sattar.
20 Abbreviations: (UI) equals unintelligible. (PH)
21 equals phonetic spelling. Three dots equals an incomplete
22 thought, and underscore equals spoken in Arabic.
23 Your Honor, at this point if you would like to ask the
24 jurors to put on their headsets we would then play the
25 recording and follow or display the transcript as the recording
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1 plays.
2 THE COURT: All right.
3 Ladies and gentlemen, remember to turn on the
4 headphones and if you can't hear just raise your hand right
5 away and we will stop.
6 (At this point Government Exhibit 1001X was played to
7 the jury)
8 THE COURT: All right.
9 Ladies and gentlemen, you can take your headphones off
10 now, and at this point it's time for our mid-afternoon break
11 for ten minutes.
12 Please remember my continuing instructions. Please
13 don't talk about the case or anything to do with it. Keep an
14 open mind until you have heard all the evidence, I have
15 instructed you on the law, and you have gone to the jury room
16 to begin your deliberations.
17 All rise please.
18 Please following Mr. Fletcher to the jury room.
19 (Jury left the courtroom)
20 THE COURT: Please be seated all.
21 The first thing I wanted to raise was I wanted to make
22 sure that there wasn't something missing when you stood up, Mr.
23 Tigar, that --
24 MR. TIGAR: Nothing missing, your Honor. But this was
25 an offer in the presence of the jury of an exhibit to which I
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1 had objected. Your Honor had ruled out of the sight and
2 hearing of the jury and I just wanted to make sure that there
3 wasn't a piece of transcript around there that had me
4 consenting to something to which I do not consent.
5 THE COURT: Okay. But there are no objections that I
6 didn't hear and rule on. And the reason I raise that is there
7 were stipulations with respect to excerpts and transcripts and
8 I appreciate that I ruled with respect to the foundation issues
9 this morning with respect to Government Exhibits 1000 and --
10 MR. TIGAR: 1015.
11 THE COURT: And 1015.
12 MR. TIGAR: Yes, your Honor. Those were included in
13 the offer in the presence of the jury. I am a little hard of
14 hearing but I saw it on the screen and that is why I stood up.
15 THE COURT: Okay.
16 MR. TIGAR: Also, as we go through this process, as
17 things develop we may have 106 things to play with respect to
18 particular ones. We may have some more of the considerations
19 Mr. Ruhnke brought up about limiting instructions. But the
20 basic admissibility decision as far as Ms. Stewart and I and
21 Ms. Shellow-Lavine are concerned we have been heard, you have
22 ruled, and there it is.
23 THE COURT: Okay.
24 MR. BAKER: Your Honor, two things I wanted to
25 address. One thing that Mr. Tigar just said and I also wanted
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1 to put one other thing on the record.
2 With respect to completeness objections under Rule
3 106, each of these excerpted transcripts that were just
4 received had been provided to the defense specifically for the
5 purpose of addressing any rule of completeness or translation
6 issues relating to the transcripts. They were provided and in
7 certain instances the defense requested that additional
8 portions be added. They either were or there was back and
9 forth negotiation and eventually a resolution was reached. So
10 I don't understand Mr. Tigar's claim again that there may be
11 Rule 106 objections because the whole point was to have the
12 process to resolve all of that before the excerpted transcripts
13 were offered.
14 The other matter I wanted to put on the record is at
15 the end of the lunch break when all parties returned to the
16 courtroom, I provided Mr. Tigar with a disk. I don't recall
17 whether it was CD or a DVD containing copies in the original
18 Lockheed Martin format of approximately 150 audio files which
19 are a significant portion of the universe of recordings that
20 the government will be offering into evidence at this trial.
21 THE COURT: Okay.
22 MR. TIGAR: Number one, your Honor, I haven't made any
23 objections that I haven't made. When and if I do make them,
24 which I don't anticipate would happen because we did have some
25 discussions, I will make them.
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1 THE COURT: Okay. I actually appreciate that. I
2 think -- "appreciate" in the sense of understanding.
3 I took the 106 argument actually as a defense --
4 MR. TIGAR: It is an anchor to windward, your Honor.
5 THE COURT: I did think that you all had worked out
6 the issues of completeness. But if something comes up,
7 something comes up.
8 All right.
9 MR. TIGAR: Number 2, I have been tendered a disk by
10 Ms. Baker. It appears to bear the signature of Mr. Kerns. I
11 don't know what is on it but I accept the representation. It
12 says on it Lockheed Martin files. It cannot, of course,
13 contain the original Lockheed Martin files because those were
14 destroyed. But whatever it contains we will investigate it and
15 we appreciate receiving it.
16 THE COURT: All right.
17 Now, do the parties want to be heard on the next set
18 of exhibits?
19 MR. RUHNKE: Just from the government as to who they
20 are offering it against.
21 MR. BAKER: Your Honor, as I said earlier, the next
22 three calls, which are reflected in the excerpted transcripts
23 1002X, 1003X and 1004X are offered against all parties for
24 various purposes, including as evidence of Count 1 in which all
25 parties are charged.
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1 MR. RUHNKE: I certainly understand why it's offered
2 on Count 1. It discusses efforts to get communication back and
3 forth to the sheikh so I have no objection to the instruction,
4 but when Ms. Baker says it's offered for various purposes, is
5 there some limitation that she has in her mind or is it simply
6 offered as is?
7 MR. BAKER: No, it's offered generally. I don't have
8 any limiting purpose in mind.
9 MR. RUHNKE: That certainly will take us the balance
10 of the afternoon and then some.
11 MR. MORVILLO: Actually, your Honor, it's a 34-page
12 transcript. Based on my assessment each page takes about a
13 minute depending on how dense, maybe a minute and a half to
14 read. The government had intended to play a few moments of the
15 Arabic recording prior to beginning to read. It's possible
16 that this could take 45 minutes to read.
17 Would you like us to stop at 4:30 and continue
18 tomorrow?
19 THE COURT: I do like to let the jury go at 4:30. If
20 we go a little longer than 4:30 we can pick up tomorrow but
21 let's stop close to 4:30.
22 Okay.
23 All right. See you shortly.
24 (Recess)
25 THE COURT: Please be seated all.
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1 Are we ready to bring in the jury?
2 MR. MORVILLO: Yes, your Honor. I wanted to say in
3 accordance with the court's prior ruling as to --
4 MR. PAUL: Mr. Sattar has no lawyer, so we probably
5 should wait.
6 THE COURT: I am sorry.
7 (Pause)
8 THE COURT: Okay, no problem, Mr. Fallick. Nothing
9 happened and Mr. Stern pointed out that you weren't here so,
10 fine.
11 MR. MORVILLO: Your Honor, in accordance with the
12 court's prior ruling with respect to the reading of portions of
13 transcripts that are attributed to defendants, the government
14 has here a paralegal from its office, Adam Forkner, and if he
15 could come up and sit in the witness stand with the permission
16 of the court.
17 THE COURT: All right.
18 You should say before the jury "May I ask that Mr.
19 Forkner from our office read part of the transcript."
20 MR. MORVILLO: Would you like me to specify which
21 parts will be read by which people?
22 THE COURT: If you wish.
23 MR. MORVILLO: Okay, thank you.
24 Are you ready to bring in the jury now?
25 MR. MORVILLO: Yes, your Honor.
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1 THE COURT: Okay.
2 MR. MORVILLO: While Mr. Fletcher is getting the jury,
3 we have spoken to the parties and since this is a three-person
4 telephone call, we would propose using the two podiums and the
5 witness box. We can pull this podium away from the jury rail.
6 However, the microphone is not on. I don't believe it's on.
7 THE COURT: Can't someone read two parts or else --
8 MR. MORVILLO: We can have somebody read from the
9 table.
10 THE COURT: I don't want somebody from the table.
11 Either one person or two people from that podium or that
12 microphone would be just fine. Okay?
13 MR. MORVILLO: Very well.
14 (In open court; jury present)
15 THE COURT: All right, please be seated all.
16 Mr. Morvillo.
17 MR. MORVILLO: At this time the government would
18 request permission to play a portion of Government Exhibit 1002
19 to the jury. The call is in Arabic and, for the record, the
20 government would also request permission to display for the
21 jury the corresponding transcript, Government Exhibit 1002X.
22 THE COURT: All right. And they won't be using the
23 headphones?
24 MR. MORVILLO: The headphones for the first portion we
25 play and after we play a few moments the government requests
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1 permission to play the entirety of the transcript to the jury.
2 Mr. Adam Forkner, a paralegal from our office, is sitting in
3 the witness box and we would request that he read the
4 attributions to Mr. Sattar. I will read the attributions to
5 Mr. Taha, and Mr. Dember will read the attributions to
6 Mr. Al-Zayat.
7 THE COURT: Okay.
8 MR. MORVILLO: For the record, your Honor, this call
9 is dated December 12, 1998 at 16:43:45 and the participants are
10 Ahmed Abdel Sattar, Rifa'i Ahmad Taha Musa and Montasser
11 Al-Zayat.
12 THE COURT: All right, ladies and gentlemen, please
13 put on the headphones.
14 (At this point, portions of Government Exhibit 1002X
15 in evidence were played to the jury)
16 (Continued on next page)
17
18
19
20
21
22
23
24
25
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1 MR. MORVILLO: Your Honor, may we?
2 THE COURT: All right. Ladies and gentlemen, take
3 your headphones off. Remember, this is the first transcript
4 which is from a recording in Arabic, and remember my
5 instruction that the transcripts were portions of transcripts
6 of those conversations that are in Arabic embodying the
7 testimony of the Arabic translators as to what appears in the
8 recordings. These transcripts were admitted into evidence. To
9 the extent that you accept or reject the testimony of those
10 witnesses, you may accept or reject the transcripts themselves
11 of the Arabic conversations. Remember that the jury is the
12 ultimate fact-finder, and, as with all evidence, you may give
13 the transcripts such weight if any as you believe they deserve.
14 All right?
15 MR. MORVILLO: May we proceed, your Honor?
16 THE COURT: Yes.
17 (At this point, Government Exhibit 1002, in evidence,
18 was read into the record by Messrs. Dember, Morville and
19 Forkner.)
20 MR. MORVILLO: Your Honor, the call shifts here a
21 little bit so it would be a good time to break.
22 THE COURT: Ladies and gentlemen, I try to break with
23 you at about 4:30. It's about 4:30, so we'll break for the day
24 and resume tomorrow at 9:30.
25 Please, remember my continuing instructions: Don't
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1 look at or listen to anything about the case. If you should
2 see something, turn away. Don't talk about the case. Remember
3 to keep open mind until you've heard all the evidence, I've
4 instructed you on the law and you've gone to the jury room to
5 begin your deliberations.
6 Have a good evening. I look forward to seeing you
7 tomorrow. All rise, please.
8 Please follow Mr. Fletcher to the jury room.
9 (Jury exits the courtroom)
10 (Continued on next page)
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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1 (In open court; jury not present).
2 THE COURT: Please be seated. You may step down.
3 First, there is an outstanding motion in limine with
4 respect to a witness.
5 MS. BAKER: Your Honor, if you're referring to the
6 cooperating witness whose testimony the government proffered
7 regarding the recordings, in light of your Honor's admission of
8 the recordings this morning, the government does not intend to
9 call that witness tomorrow, and we will advise the parties and
10 the Court if and when we decide to call that witness in our
11 direct case.
12 At this point, we are going to wait and see how things
13 progress in the direct case. It may be that we end up not
14 calling that witness in our direct case at all.
15 THE COURT: Okay. That resolves that, at this point.
16 The government should indicate the transcripts and
17 calls that it expects to introduce tomorrow. Have you done
18 that already?
19 MS. BAKER: Your Honor, the government intends to
20 proceed chronologically through the calls on the DVD marked as
21 Government Exhibit 1000, and so all parties have a listing of
22 the recordings on that DVD. The list is Government
23 Exhibit 1000L, so, generally speaking, we will be taking the
24 calls in that order and everyone can just follow along on that
25 list.
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1 THE COURT: And the next question that Mr. Ruhnke is
2 going to ask is whether there are any limiting instructions
3 that the government proposes with respect to the upcoming
4 transcripts.
5 MS. BAKER: Your Honor, we will review the next number
6 of transcripts this evening. But as I indicated earlier,
7 generally for calls at any point after the start of the Count 1
8 conspiracy, which starts in 1997, the government is offering
9 those calls generally without any limitation.
10 THE COURT: Okay.
11 MR. TIGAR: Perhaps this is an appropriate time, your
12 Honor -- I know that the government considers Mr. Taha to be a
13 conspirator in Count 1, and perhaps other counts. Does the
14 government offer Mr. Al-Zayyat as a conspirator in Count 1?
15 MS. BAKER: Yes, we do. Indeed, generally, the
16 various Islamic group leaders who will figure in these calls,
17 that would include Mustafa Hamza, Salah Hashim, so on,
18 Al-Zayyat, the government's view is that all of them are
19 conspirators in the Count 1 conspiracy, and others in other
20 conspiracies, but an overall theme in the case is that the
21 various IG leaders wanted to know Sheikh Abdel Rahman's
22 position with regard to initiative and other Islamic Group
23 matters, and so because the focus of Count 1 was violating the
24 SAMs and allowing Abdel Rahman to continue to function as one
25 of the leaders of the Islamic Group, the government's position
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1 is that all of these people are coconspirators in the Count 1
2 conspiracy.
3 MR. TIGAR: We've had a lot of discussion in the case
4 about Mr. Al-Zayyat. Does the government -- and of course
5 there were many people involved in dealing with him. Does the
6 government regard any American lawyers who have dealt with
7 Mr. Zayyat directly as conspirators in the process that has
8 just been described? I think it's a fair question, because if
9 they do, some of those lawyers may be reluctant to come here.
10 THE COURT: The parties are welcome to discuss that.
11 It's plain from the allegations in the indictment that
12 Ms. Stewart is an alleged coconspirator in Count 1, and it
13 is -- it's not clear to me that until the issue gets raised
14 with respect to specific evidence or specific transcripts
15 coming up, something should be said on that basis.
16 The defense raises the question that if that position
17 were taken, that it could be discouraging presumably to a
18 defense witness. And so the parties are welcome to discuss
19 that, but it's not clear to me that that has to be answered at
20 this point.
21 MR. TIGAR: With respect, your Honor -- and I'll make
22 this position: It is clear to us. I am shocked to hear that
23 the government regards a respected human rights lawyer and
24 well-known man of peace as a conspirator. We'll get to that
25 when we get to a hearing, because that's a bridge they will
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1 have to try to cross.
2 Your Honor retains authority under Federal Rule of
3 Criminal Procedure 7 to compel the government to identify
4 people. You've declined up to now to exercise that authority.
5 I stand here and tell your Honor that I am surprised by the
6 Muntasir Al-Zayyat designation that I just heard for the first
7 time, and I respectfully suggest -- no, I don't suggest at all.
8 I renew my motion for a Bill of Particulars, limited, your
9 Honor, to the question that I posed at the outset with respect
10 to American lawyers. I think it has to do with what we have to
11 meet here.
12 THE COURT: All right. Government?
13 MS. BAKER: As your Honor acknowledged in rulings
14 earlier in the case, the function of a Bill of Particulars is
15 to ensure that a defendant has sufficient evidence to
16 adequately defend himself or herself against being placed in
17 jeopardy for the second time on the same charges. The
18 defendants in this case have more than adequate information to
19 meet that function of the Bill of Particulars, and there is no
20 reason for the Court at this time to grant the relief that
21 Mr. Tigar is seeking on behalf of Ms. Stewart.
22 If and when the occasion presents itself, if and when
23 the government seeks to offer statements by some other American
24 lawyer as statements in furtherance of the conspiracy, the
25 government will make the necessary proffer or argument to
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1 establish the evidentiary predicate for the offer of that
2 evidence.
3 THE COURT: Okay.
4 MR. TIGAR: I know the Court is not disposed to grant
5 this motion, but may I just say that limiting the Bill of
6 Particulars to double jeopardy really is a solecism unworthy of
7 the government of the United States. The 1966 amendment to
8 Rule 7 made that clear.
9 THE COURT: Okay. The renewed application is denied,
10 and -- all right.
11 That -- I believe -- the parties will have more than
12 sufficient time to pursue the transcripts, and telephone calls.
13 Do the parties want me to finish with the remaining
14 five documents from the Sattar search at this point?
15 MR. BARKOW: Yes, your Honor, if your Honor is
16 prepared to do so. I would ask, I guess, since there's been
17 correspondence on this over several days, which five in
18 particular are the ones...?
19 THE COURT: I believe they're the only ones that are
20 left open, are 2040, 2077, 2079, 2057, and 2070.
21 MR. BARKOW: Yes, your Honor, we would.
22 THE COURT: All right. I'm prepared to rule.
23 With respect to documents 2040, 2077 and 2079, these
24 are all speeches of Omar Abdel Rahman. It is unclear whether
25 they were given -- it is unclear when they were given, but from
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1 the text they appear to be before Sheikh Rahman was in prison.
2 They were all found in the search of Mr. Sattar's premises.
3 Only Miss Stewart and Mr. Yousry object on, among other
4 grounds, that they are cumulative and irrelevant.
5 I discussed these documents on the record with the
6 parties last time that I discussed the documents. The
7 documents are relevant to Mr. Sattar's state of mind and to
8 Omar Abdel Rahman's state of mind. They are not cumulative
9 because they are particularly relevant to Mr. Sattar's state of
10 mind. And there is no evidence that he was aware of the -- of
11 all of the speeches of Sheikh Rahman which were introduced at
12 the trial, although Ms. Stewart was aware of those speeches,
13 and that was noted in the stipulation.
14 The introduction of these speeches is not unfairly
15 prejudicial to Miss Stewart or to Mr. Yousry. However, in view
16 of the objections raised by Ms. Stewart and Mr. Yousry, I will
17 give a limiting instruction with respect to each of these three
18 speeches. And there is no basis to believe that the jury could
19 not follow these instructions.
20 With respect to these three speeches, the speeches
21 would be subject to the following limiting instruction:
22 These exhibits are admitted only against Mr. Sattar
23 and not against Ms. Stewart or Mr. Yousry; they are admitted
24 solely with respect to the knowledge, intent and state of mind
25 of Mr. Sattar, and Omar Abdel Rahman. And you may consider
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1 them solely for that purpose.
2 And I've also considered again Ms. Stewart's renewed
3 application for a severance, and there is no basis for that
4 application in connection with these three speeches. There is
5 nothing to believe that the jury cannot follow the -- these
6 instructions. There's no basis to believe that Ms. Stewart
7 would be -- would suffer any prejudice at all from the
8 introduction of those three speeches.
9 The remaining two items then are 2057 and 2070. 2057
10 is the so-called will, which includes calls to violence,
11 including: "Destroy their nation", "Tear them apart", "Ruin
12 their economy", "Burn their companies", "Plunder their
13 interests", "Sink their boats", "Bring down their airplanes",
14 "Slaughter them on land, sea and air". 2070TA is a speech by
15 Omar Abdel Rahman from prison urging jihad to free him.
16 The documents are offered against all three
17 defendants. Only 2070TA is offered. 2070 TB is withdrawn, I
18 believe.
19 And as I said, only Ms. Stewart and Mr. Yousry object.
20 With respect to 2057, the objections are on grounds of
21 relevance and hearsay, and the objection to 2070A is on the
22 grounds of relevance and 403. The documents are plainly
23 relevant. They reflect Omar Abdel Rahman's intent and state of
24 mind. They're also relevant to Mr. Sattar's intent and state
25 of mind. There are calls for violence while Omar Abdel Rahman
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1 is in prison as opposed to earlier calls for jihad. To the
2 extent that they predate the Count 2 conspiracy, they would be
3 background to that conspiracy. The fact that they relate to
4 the Count 2 conspiracy would not make them irrelevant to
5 Ms. Stewart and Mr. Yousry since proof of that conspiracy would
6 be relevant to the charges in Counts 4 and 5. The relevance is
7 not outweighed by any danger of unfair prejudice. Any power
8 the evidence has comes from its relevance and not from an
9 appeal to impermissible considerations.
10 Finally, to the extent that the defendants have
11 suggested that the evidence is barred by anything in Noto and
12 Watts, there is no basis for those arguments. However, the
13 government does not offer these statements for the truth of
14 anything that is said in those statements. Therefore, while I
15 will certainly listen to any other appropriate instructions
16 suggested by the parties, as I always do, I believe that the
17 appropriate instruction for both of these documents are, quote,
18 "These documents are not admitted for the truth of anything
19 that is said in these statements, and you may not consider them
20 for the truth of what is said", unquote.
21 And that is my suggested instructions with respect to
22 those two documents.
23 MS. BAKER: Your Honor, the government would request
24 that you not give such a limiting instruction because the fact
25 that the statements are not factual assertions with the truths
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1 but rather are essentially verbal acts and therefore the
2 statements fall outside the definition of hearsay goes to the
3 legal question that the Court has to determine in deciding
4 whether or not to admit the evidence. That fact or that
5 finding that they are not hearsay because they are not factual
6 assertions with truths is independent of the purpose for which
7 the jury can use the statements, or the question of how much
8 weight the jury might decide to give to the statements, and the
9 limiting instruction that your Honor is proposing to give
10 suggests that the jury can't use the statements in certain ways
11 when in fact your Honor's earlier parts of your decision,
12 finding them admissible, indicates that in fact they are
13 generally admissible, and can be generally viewed by the jury.
14 So respectfully we submit that the instruction is
15 inconsistent with the earlier part of the ruling and, as I
16 said, is mixing the function of the Court in finding them not
17 hearsay with the purpose for which they may be used by the
18 jury.
19 THE COURT: I thought I was reflecting what the
20 statement by Mr. Barkow was in his letter, not for the truth.
21 MS. BAKER: Your Honor, I don't have Mr. Barkow's
22 letter in front of me, but he and I consulted when he was
23 working on that letter, and the government's intention, however
24 the letter was phrased, was that on the threshold question for
25 the Court on admissibility -- this was based on the earlier
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1 colloquy in court. On the threshold question of admissibility
2 for the Court there was colloquy about whether or not the
3 statements were hearsay and therefore had some exception to the
4 hearsay rule, and the government's ultimate position is that
5 the statements are not subject to the hearsay rule because they
6 are not factual assertions offered for their truth, and
7 therefore the hearsay rule is simply inapplicable.
8 But again, we submit that that's a different question.
9 That's the legal question for the Court, whether the hearsay
10 rule is a bar to the admissibility, and the Court has now
11 essentially found that the hearsay rule is not a bar to
12 admissibility because they are not factual. Therefore, they
13 don't have a truth or falseness.
14 But that's a different question for the purpose for
15 which the jury might use them, and the instruction suggests
16 that there's some purpose for which they cannot be used.
17 THE COURT: Well, the government -- I mean, you've
18 said they're not being offered for the truth, so that gets
19 beyond the hearsay. They're being offered for the fact that
20 these statements are being made. So when that happens, the
21 usual instruction that I then give is: These are not being
22 offered for the truth of what's said. So that you can assure
23 yourself that the jury doesn't take them for the truth of
24 something that's being said.
25 MS. BAKER: I recognize what your Honor --
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1 THE COURT: And if I -- you know, you can't get them
2 in on the argument that they're not being offered for the
3 truth, and then not say they're not being offered for the
4 truth. And I, you know, I very carefully follow the rules, and
5 I instruct the jury, I explain what hearsay is and I take them
6 through limiting instructions and all of that, and I just don't
7 understand how you can say, You're right, your Honor, we're not
8 offering them for the truth. Just don't tell that to the jury.
9 MS. BAKER: Your Honor, if I might, I fear that I'm
10 not explaining it clearly now.
11 I really do think that there is a distinction between
12 the general situation that your Honor just referred to and the
13 situation here. In the general situation that your Honor just
14 referred to, the statements themselves have factual assertions
15 in them, which factual assertions are capable of having truth.
16 But because the statements are being admitted under a specific
17 hearsay exception, even though the statements have a truth
18 capacity to them, they're not being offered for the truth.
19 These statements, because they are commands, don't
20 have a truth capacity to them. They're a completely different
21 kind of utterance. And to give the instruction that your Honor
22 proposed sort of suggests that they do have a truth capacity to
23 them, but that the jury has to set that aside.
24 And that's the government's concern. It's applying a
25 label to the statements that don't really fit. These are not
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1 assertions of fact, so they just are not capable of having
2 truth or falseness.
3 If your Honor wanted to instead give some sort of
4 instruction that perhaps accomplishes the purpose but
5 differently, for example, these statements are being offered to
6 show that they were made, that Abdel Rahman made them --
7 something that defines them more as the verbal acts, which was
8 the basis for your Honor admitting them, rather than by trying
9 to say what they were not.
10 THE COURT: Okay. Do the defendants have a view?
11 MR. RUHNKE: If they're not offered for the truth,
12 they're not offered for the truth. And I think the jury has
13 the right to know that. So we do believe that your Honor's
14 instruction is appropriate.
15 THE COURT: I agree with that. I think the
16 instruction is appropriate. And the government says, but this
17 is a different kind of statement because it really doesn't have
18 a truthful content, it has a -- you look at it and it's not as
19 though there are facts that are stated that are being offered
20 for their truth. If that's correct, and I very much understand
21 that, then it really is not in any sense prejudicial to any of
22 the parties or misleading the jury to say that these statements
23 are not being offered for the truth of anything that's said,
24 and that the jury can't consider them for the truth. Because
25 that, in fact, is the substance of what is going on.
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1 Whether it is because there is no factual content to
2 them, or because whatever factual content there is is -- should
3 be disregarded, they are not being offered for the truth of
4 anything that's said, and the jury is not to consider them for
5 the truth of what is said.
6 And so that appears to be the appropriate limiting
7 instruction with respect to those two exhibits.
8 Do the parties anticipate anything for me tomorrow
9 morning? I really would like to start with the jury at 9:30.
10 And the answer to that depends on whether you come in at 9:00
11 or 9:15.
12 MR. TIGAR: For Ms. Stewart, your Honor, I hesitate to
13 state a present intention that might change based on later
14 events, but I tell you in all sincerity, that is our present
15 intention: That we will have nothing for your Honor.
16 MR. BARKOW: Your Honor, today we offered into
17 evidence, and it was received, Government Exhibit 405, the
18 glossary, during the testimony of Ms. Banout. And we published
19 it in parts, but it is a glossary of terms, and one of them
20 actually was used, Da'wa, in this transcript, and we were going
21 to ask your Honor whether we might copy it for the jurors so
22 they can use it as a reference in case others of those terms
23 were used during the transcript -- within the transcripts, so
24 they can refer to it. For example, when Da'wa was used, they
25 could look it up afterwards, or during, actually.
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1 THE COURT: What are the parties' positions with
2 respect to that?
3 MR. TIGAR: Your Honor, a party has the discretion to
4 publish a document to the jurors in any fashion the Court
5 permits, and our only concern would be that then copies would
6 have to be collected back from the jurors and not taken to the
7 jury room as to start a kind of juror scrapbook about the case.
8 But subject to that, your Honor, if the government
9 wants to distract the jurors from the transcripts, that's fine
10 with us.
11 THE COURT: There's no objection to doing it, so long
12 as it's passed out and collected. But I -- I always stop the
13 juries when, for example, the parties wants to pass things and
14 continue with the testimony. You know, while some jurors are
15 looking at something, others are listening to the testimony.
16 The thought that jurors could be randomly turning to a glossary
17 to go over four columns, is -- doesn't seem to me to be the
18 most -- the most reasonable way to use the juror's time when
19 they're supposed to be paying attention to what's being read or
20 heard.
21 (Continued on next page)
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1 MR. BARKOW: Your Honor and Mr. Tigar both raised good
2 points on this and so perhaps instead what we might propose is
3 that for calls that use a term on the glossary at the end of
4 the presentation, we could re-publish that section of the
5 glossary to explain it.
6 THE COURT: That would be alright.
7 MR. PAUL: Judge, just for scheduling purposes, are we
8 to assume that tomorrow will be taken up with the reading of
9 transcripts for the entire day?
10 MR. MORVILLO: I think that is a safe assumption.
11 MR. PAUL: Thank you.
12 MR. BAKER: Your Honor, just in terms of scheduling
13 going forward, the government when Agent Kerns was on the stand
14 had him briefly authenticate an additional DVD which was marked
15 as Government Exhibit 1300. The government provided copies of
16 that DVD to defense counsel. We are going to be providing
17 either later this afternoon or first thing tomorrow a
18 replacement copy of that DVD because it turned out that it had
19 a couple of recordings that we decided to cut but lacked a
20 different recording that we are intending to use.
21 But, in any event, the government anticipates, unless
22 the parties are willing to stipulate that Agent Kerns would
23 give the same testimony with respect to 1300 that he did with
24 respect to the other disks, the government does expect some
25 time within the next day or two or so to recall Agent Kerns for
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1 the purpose of authenticating and offering that additional DVD
2 which will be again marked as Government Exhibit 1300.
3 THE COURT: Yes, Mr. Tigar.
4 MR. TIGAR: In order to evaluate that issue, I don't
5 think I have a master list such as a 1300L that lists the same
6 identifying information with respect to the calls. If I could
7 have that, then we could look back and see am I just spinning
8 my wheels here or I do want to get that poor Marine back here?
9 THE COURT: Yes, the defendants should be provided
10 with the equivalent of a 1300L, both with respect to the
11 original and with respect to the replacement.
12 MR. BAKER: We will absolutely do that, your Honor.
13 Although I thought from things Mr. Tigar had said previously
14 that he was aware that if you just put that DVD in your DVD
15 drive and click on "My Computer" in a Windows environment, what
16 shows on your screen is exactly what is printed in that list.
17 So he could effectively have that list any time.
18 MR. TIGAR: Your Honor, I did do that and I did open
19 one file, so I know how to do that. I have asked for an
20 exhibit. If I get it, I will consider the stipulation.
21 THE COURT: All right.
22 I said that the government should provide that both
23 with respect to a 1300L with respect to the original disk, as
24 well as a 1300L with respect to the replacement disk so that
25 it's reasonably determinable what has been taken out and what
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1 has been put in.
2 Okay.
3 Anything else for me?
4 Is it all right to start tomorrow at 9:15?
5 Okay, see you all at 9:15.
6 Have a good evening.
7 (Trial adjourned to July 14, 2004 at 9:15 a.m.)
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1 INDEX OF EXAMINATION
2 Examination of: Page
3 NABILA BANOUT
4 Direct By Mr. Barkow . . . . . . . . . . . 3586
5 Cross By Mr. Stern . . . . . . . . . . . . . 3627
6 Cross By Mr. Paul . . . . . . . . . . . . . 3633
7 Redirect By Mr. Barkow . . . . . . . . . . . 3637
8 GOVERNMENT EXHIBITS
9 Exhibit No. Received
10 1000 and 1015 . . . . . . . . . . . . . . . . . . 3586
11 407 . . . . . . . . . . . . . . . . . . . . . . . 3602
12 405 . . . . . . . . . . . . . . . . . . . . . . . 3615
13 1000S, 1313 and 1314 . . . . . . . . . . . . . . . 3677
14 1001X, 1002X, 1009X, 1010X, 1011X, 1012X, 1016X, 1017X,
15 1022X, 1023X, 1025X, 1027X, 1028X, 1029X, 1030X, 1032X,
16 1033X, 1035X, 1044X, 1046X, 1047X, 1049X, 1051X, 1054X,
17 1060X, 1061X, 1062X, 1067X, 1092X, 1093X, 1099X, 1102X,
18 1104X, 1120X, 1121X, 1122X, 1123X, 1124X, 1125X, 1126X,
19 1127X, 1128X, 1129X, 1130X, 1131X, 1132X, 1133X, 1134X,
20 1135X, 1148X, 1153X, 1155X, 1162X, 1163X, 1165X, 1166X,
21 1167X, 1169X, 1179X, 1180X, 1181X, 1183X, 1184X, 1188X,
22 1189X, 1192X, 1194X, 1199X, 1200X, 1205X, 1212X, 1214X,
23 1217X, 1226X, 1228X, 1229X, 1003X, 1004X, 1005X, 1006X,
24 1007X, 1008X, 1013X, 1014X, 1026X, 1031X, 1045X, 1052X,
25 1053X, 1069X, 1071X, 1088X, 1089X, 1090X, 1091X, 1094X,
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1 1100X, 1101X, 1111X, 1112X, 1117X, 1119X, 1136X, 1143X,
2 1144X, 1152X, 1161X, 1168X, 1170X, 1182X, 1186X, 1190X,
3 1191X, 1208X, 1209X, 1210X, 1216X, 1218X, 1221X, 1222X,
4 1223X, 1224X, 1227X and 1230X . . . . . . . . . . . 3679
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