14 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 22 of the proceeding and Day 13 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 14, 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.
4 MR. TIGAR: Good morning, your Honor.
5 Very, very briefly.
6 THE COURT: Good morning.
7 MR. TIGAR: I have here pages 3415 and 3146 of the
8 transcript -- and I will hand those up -- in which Agent Kerns
9 was asked about Exhibit 1015, the DVD, and was asked
10 essentially was that CD created through the same sort of
11 process you just finished describing for Exhibit 1000? He said
12 yes. The government then exhibited Exhibit 1310, which has a
13 series of VOC file copying designators. It's their
14 demonstrative.
15 This morning when I arrived in court I was going over
16 the evidence and the 1015 we have is a WAV file not a VOC file.
17 I don't know whether the original that was received in evidence
18 is. If it is, I wanted to bring to the court's attention that
19 there is this difficulty.
20 MR. BAKER: Your Honor, I can explain. Perhaps there
21 was -- and I don't know -- an inadvertent failure to provide
22 all the copies of everything to Mr. Tigar or to the defense
23 lawyers, but the 1015 itself that came in through Agent Kerns
24 in his testimony is in fact a VOC file. I didn't bring it with
25 me to court today, but I am happy to make that original disk
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1 available to Mr. Tigar for his inspection. The disk that Mr.
2 Tigar has or also has that he is referring to that has a WAV
3 file is an enhanced copy of the audio recording marked as 1015
4 and the government expects to offer, in addition to the
5 original which is now in, that enhanced copy through a
6 different witness and so that enhanced copy is in some other
7 format. Mr. Tigar says it's WAV. I don't dispute that. I
8 don't specifically recall. But the original, or the one that
9 has come in through Agent Kerns, is indeed a VOC file.
10 THE COURT: Make it available for inspection and if a
11 copy hasn't been given to the defendants and the defendants
12 want want a copy of it, make another copy.
13 MR. TIGAR: Yes, your Honor. We want a copy of every
14 electronic item that is in evidence in the form in which it is
15 in evidence for obvious reasons.
16 THE COURT: I think that the representation was that
17 it was the intent to do that, and if the copy of 1015 that was
18 provided was not in the exact format, that was a mistake.
19 MR. BAKER: Let me just clarify.
20 Mr. Tigar should in fact have that very recording in
21 VOC format from when it was produced to him in pretrial
22 discovery. So he should definitely have it already. What I
23 meant a minute ago was it was our intention as well to provide
24 it again as a single file all by itself on its one CD or DVD,
25 the way it came in through Agent Kerns. But even if we
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1 inadvertently omitted to do that, Mr. Tigar should absolutely
2 have it already from pretrial discovery from when Mr. Tigar, on
3 behalf of defendant Stewart, raised the issue about the file
4 format back in 2003 and then we provided all of the recordings
5 in VOC format to Mr. Tigar.
6 MR. TIGAR: Your Honor, given the fact that many of
7 the VOC recordings we did receive were corrupted in the
8 discovery process, I regret that I am unable to accept, I am
9 not saying anything wrong happened, but I can't accept the
10 representation because it doesn't permit me, if I do that, to
11 effectively represent my client.
12 THE COURT: That is fine.
13 MR. TIGAR: And in light of these disputes, we of
14 course will not be stipulating to Agent Kerns' proposed
15 testimony about Exhibit 1300.
16 THE COURT: You can discuss 1300. You can discuss
17 getting the other copy of 1015.
18 Okay.
19 MR. BARKOW: If the jury is here this can wait, but --
20 THE COURT: I believe the jury is here.
21 MR. BARKOW: Okay.
22 MR. RUHNKE: Again, I know we want to get to the jury,
23 but the government was going to write a letter stating as to
24 whom it was offering various transcripts against. We discussed
25 this yesterday afternoon. It fell between the cracks, not the
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1 government's fault, there is a lot going on, but if Ms. Baker
2 would give me a handwritten description of who they are
3 offering in the next set of transcripts against I think that
4 might facilitate the process.
5 MR. BAKER: Your Honor, as I thought I had stated at
6 the end of the day yesterday, generally now that we are within
7 the time period encompassed by the Count 1 conspiracy,
8 generally the recordings are all offered without limitation
9 against all defendants. What I thought I had said, and what I
10 meant to say, is that for any recordings as we are coming up to
11 them that are an exception to that general proposition, we will
12 advise the defense. I don't believe we are going to get to any
13 recordings today that would be an exception to that general
14 proposition.
15 MR. RUHNKE: Accepted, your Honor.
16 THE COURT: Okay.
17 Anything else before we call in the jury?
18 THE COURT: All right.
19 And where will we pick up with the jury?
20 MR. BAKER: Your Honor, we will pick up with the
21 presentation by display of the transcript and by reading of
22 Government Exhibit 1002X, and I believe that we were up to page
23 12 of that exhibit.
24 THE COURT: All right.
25 MR. TIGAR: Your Honor, is 1015 in court? We can save
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1 some time.
2 MR. BAKER: It is not. I left it in my office this
3 morning.
4 MR. TIGAR: If we can just have a look at it sometime
5 this morning that would be great.
6 MR. BAKER: Absolutely, we will get it for the break.
7 THE COURT: Okay. I believe Mr. Forkner was on the
8 stand.
9 The government should also provide an updated exhibit
10 list.
11 MR. BAKER: We will do that, your Honor, and we are
12 aware that your Honor requested that the list bear the dates on
13 which the exhibits were admitted and we believe we found a way
14 to get our data base to generate that. We will try to do that
15 later today.
16 THE COURT: Okay.
17 All right, let's bring in the jury.
18 MR. BAKER: Your Honor, if I might be excused, in
19 addition to leaving 1015 in my office I also left 1000, which
20 we need in order to play the next call, so if I can just leave
21 and come back.
22 THE COURT: All right.
23 (In open court; jury present)
24 THE COURT: Good morning all. Please be seated.
25 We will wait just a moment.
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1 Good morning all. It's good to see you all.
2 All right, ladies and gentlemen, when we left off
3 yesterday we were in the process of hearing a transcript of a
4 recording made. I have already given you instructions with
5 respect to these recordings and the way in which you are to use
6 transcripts. This is a transcript of the Arabic and I gave
7 you, and I will give you again in final instructions, again the
8 instructions about such transcripts.
9 All right.
10 MR. MORVILLO: May we proceed, your Honor?
11 THE COURT: Yes.
12 MR. MORVILLO: Your Honor, may we publish this to the
13 jury?
14 THE COURT: Yes. This is Government Exhibit 1002X.
15 MR. MORVILLO: It's a call that occurred on December
16 12, 1998 and, once again, the attributions to Mr. Sattar will
17 be read by Mr. Forkner. The attributions for Rifa'i Ahmad Taha
18 Musa will be read by myself. And the attributions to
19 Mr. Al-Zayat will be read by Mr. Dember.
20 We were at page 12, line 9.
21 (Reading continued)
22 MR. MORVILLO: Your Honor, at this time the government
23 would request permission to play a portion of Government
24 Exhibit 1003 and then to read 1003X to the jury.
25 THE COURT: All right.
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1 MR. MORVILLO: It's my understanding that headphones
2 have been handed out.
3 THE COURT: All right.
4 MR. MORVILLO: Right now we are just cuing up the
5 recording.
6 THE COURT: All right.
7 Again, ladies and gentlemen, with respect to all of
8 these recordings, I have given you instructions with respect to
9 the recordings and the transcripts and the use of the
10 transcripts and you are to apply those instructions with
11 respect to each of these recordings and each of the
12 transcripts, even though I don't repeat it before each
13 recording is played or transcript is read. And I will also
14 repeat those in my final instructions to you just to remind you
15 about them.
16 MR. BAKER: Your Honor, while we play some of the
17 recording, which is Government Exhibit 1003, may we display the
18 top portion of the first page of Government Exhibit 1003X?
19 THE COURT: Yes.
20 MR. BAKER: We are ready to begin.
21 We would like you to ask the jury to put on their
22 headsets first.
23 THE COURT: Yes, put on your headsets, ladies and
24 gentlemen. Remember that the dot faces out.
25 (At this point, portions of Government Exhibit 1003X
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1 in evidence was played for the jury)
2 THE COURT: All right. You can take your headphones
3 off, ladies and gentlemen.
4 MR. BARKOW: Your Honor, at this point, we would ask
5 permission to read Exhibit 1003X with me reading the lines
6 attributed to Mustafa Hamza and Mr. Forkner reading the lines
7 attributed to Mr. Sattar.
8 THE COURT: Yes.
9 MR. MORVILLO: Your Honor, if you can just inform the
10 jury that they should turn the headphones off because they are
11 operated by battery and can only be charged at night.
12 THE COURT: All right.
13 You can turn the headphones off, ladies and gentlemen.
14 You will hear a click.
15 MR. BARKOW: Your Honor, I think one of the jurors may
16 be indicating that the headphone isn't working.
17 THE COURT: Okay, thank you.
18 If the juror can just place it on the rail, and we
19 will replace it.
20 MR. BARKOW: May we proceed, your Honor?
21 THE COURT: Yes.
22 (At this point, Government Exhibit 1003X in evidence
23 was read to the jury)
24 (Continued on next page)
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1 (In open court; transcription being read)
2 THE COURT: It's probably a good time for us to take
3 our mid morning break. Ladies and gentlemen, please remember
4 my continuing instructions: Keep an open mind.
5 All rise, please.
6 Follow Mr. Fletcher to the jury room
7 (The jury exits the courtroom)
8 (Morning recess)
9 (In open court; jury not present)
10 THE COURT: By the way, a notebook of the transcripts
11 are being read. Is the government providing that?
12 MR. BARKOW: We're in the process of that.
13 THE COURT: I see everyone else following along, and
14 it would be useful to have that.
15 MR. BARKOW: We will do that, your Honor.
16 THE COURT: Thank you. Where are we now? What's
17 next?
18 MR. BARKOW: 1004X, your Honor, which is actually a
19 continuation of 1003X. It's a continuation of that call.
20 THE COURT: All right. Let's bring in the jury.
21 (Whereupon, the jury enters the courtroom)
22 (In open court)
23 THE COURT: Be seated, all. All right?
24 MR. BARKOW: Your Honor, at this point we'd ask
25 permission to read and display to the jury Government
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1 Exhibit 1004X, which is a continuation of a prior call.
2 THE COURT: All right.
3 (At this point, Government Exhibit 1004X, in evidence,
4 was read to the jury)
5 MR. BARKOW: Your Honor, at this point we ask
6 permission to play for the jury the beginning portion of 1005X
7 and then read to the jury 1005X and 1006X, which are the same
8 call carried over between the two.
9 THE COURT: All right.
10 MR. BARKOW: Your Honor, if the jurors are ready,
11 we'll play 1005X.
12 THE COURT: Yes. Ladies and gentlemen of the jury,
13 you may put on your headphones. Turn on the headphones, ladies
14 and gentlemen.
15 MR. BARKOW: And we'll display the pertinent portion
16 of 1005X.
17 (At this point, Government Exhibit 1005X, in evidence,
18 was played and displayed to the jury).
19 MR. BARKOW: All right. Ladies and gentlemen, you can
20 take off your headphones.
21 MR. BARKOW: Your Honor, may we read 1005X?
22 THE COURT: Yes.
23 (At this point, Government Exhibit 1005X, in evidence,
24 was read to the jury).
25 THE COURT: At this point, your Honor, may we read
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1 Government Exhibit 1006X?
2 THE COURT: 1005?
3 MR. BARKOW: We just finished 1005X. This is a
4 continuation. It is 1006X.
5 THE COURT: Okay.
6 MR. BARKOW: May we display this to the jury?
7 THE COURT: Yes.
8 (At this point, Government Exhibit 1006X, in evidence,
9 was displayed and read to the jury)
10 MR. BARKOW: Your Honor, may I retrieve, from my
11 colleague, what's next?
12 THE COURT: Yes.
13 MR. BARKOW: Your Honor, at this point we'd ask
14 permission to read to the jury and publish the transcript to
15 the jury of Government Exhibits 1007X and 1008X.
16 THE COURT: All right.
17 MR. BARKOW: 1007X is a call on March 9, 1999.
18 (At this point, Government Exhibit 1007X, in evidence,
19 was displayed and read to the jury)
20 (Continued on next page)
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1 MR. BARKOW: Your Honor, at this point we ask
2 permission to read the next call, Government Exhibit 1008X, and
3 publish it to the jury on the screen.
4 THE COURT: All right.
5 (At this point, Government Exhibit 1008X in evidence
6 was read to the jury)
7 MR. MORVILLO: Your Honor, at this time the government
8 requests permission to read Government Exhibit 1009X and to
9 display that for the jury.
10 THE COURT: All right.
11 MR. MORVILLO: For the record, this is a call that
12 occurred on March 22, 1999 between Ahmed Abdel Sattar and
13 Rifa'i Ahmad Taha Musa.
14 (At this point, Government Exhibit 1009X in evidence
15 was read to the jury)
16 MR. DEMBER: Your Honor, at this time, we would like
17 to read from Government Exhibit 1010X and may we first display
18 the transcript to the jury?
19 THE COURT: Yes.
20 MR. DEMBER: Your Honor, this is a recorded
21 conversation on March 24, 1999.
22 THE COURT: Could you actually keep your voice up.
23 MR. DEMBER: I am sorry, your Honor.
24 This is a recorded conversation which occurred on
25 March 24, 1999, and there are three participants, Montasser
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1 Al-Zayat, whose part I will read, Ahmed Abdel Sattar, who Mr.
2 Forkner will read again of course, and there is the part of
3 Lisa Sattar which Mr. Morvillo will read, and we will share the
4 podium if that is acceptable, your Honor.
5 THE COURT: Sure.
6 MR. DEMBER: We will now start.
7 (At this point, Government Exhibit 1010X in evidence
8 was read to the jury)
9 MR. DEMBER: Your Honor, with your permission, we
10 would like to read now from Government Exhibit 1011X.
11 May we display it to the jury?
12 THE COURT: Yes.
13 MR. DEMBER: This is a telephone call on March 24,
14 1999. It has the same three participants and we will read
15 those parts.
16 (At this point, Government Exhibit 1011X in evidence
17 was read to the jury)
18 MR. DEMBER: Your Honor, with your permission we would
19 now to read from Government Exhibit 1012X.
20 May we display it to the jury?
21 THE COURT: Yes.
22 MR. DEMBER: Your Honor, this is a conversation
23 recorded which occurred on March 24, 1999. I will again be
24 reading the part of Montasser Al-Zayat. Mr. Forkner again will
25 be reading Mr. Sattar's part, and Mr. Morvillo will read the
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1 part of Salwa.
2 THE COURT: All right.
3 (At this point, Government Exhibit 1012X in evidence
4 was read to the jury)
5 MR. BARKOW: Your Honor, at this point, we ask
6 permission to publish to the jury on the screens and read to
7 the jury Government Exhibit 1013X, which has been admitted into
8 evidence.
9 THE COURT: All right.
10 MR. BARKOW: Your Honor, this is a call recorded that
11 occurred on March 25, 1999 and the participants are Ahmed Abdel
12 Sattar and Mustafa Hamza. I will read the lines attributed to
13 Mustafa Hamza and Mr. Forkner will read the lines attributed to
14 Ahmed Abdel Sattar.
15 THE COURT: All right.
16 (At this point, Government Exhibit 1013X in evidence
17 was read to the jury)
18 MR. MORVILLO: Your Honor, at this time the government
19 would seek permission to play a portion of Government Exhibit
20 1014 for the jury and then to read Government Exhibit 1014X,
21 and to display it for the jury with the header.
22 THE COURT: Please remember to keep your voice up. If
23 you are playing a portion of Government Exhibit 1014 you want
24 the jury to put on the headphones. Yes?
25 MR. DEMBER: May we play it.
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1 THE COURT: I was just asking, the jury should put on
2 their headphones?
3 MR. MORVILLO: Yes, your Honor.
4 THE COURT: All right, ladies and gentlemen.
5 (At this point, portions of Government Exhibit 1014 in
6 evidence were played for the jury)
7 THE COURT: All right.
8 Ladies and gentlemen, you can take off the headsets,
9 and remember to turn them off to save the battery.
10 MR. MORVILLO: Your Honor, at this time we would read
11 Government Exhibit 1014X.
12 THE COURT: All right.
13 MR. MORVILLO: It's a call on April 6, 1999. Mr.
14 Forkner will read attributions to Ahmed Abdel Sattar. I will
15 read attributions to Rifa'i Ahmad Taha Musa, and Mr. Dember
16 will read attributions to Montasser Al-Zayat.
17 THE COURT: All right.
18 (At this point, Government Exhibit 1014X in evidence
19 was read to the jury)
20 (Continued on next page)
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1 MR. BARKOW: Your Honor, at this point the government
2 requests permission to read to the jury and publish to the jury
3 on screens Government Exhibit 1016X, which has been admitted
4 into evidence.
5 THE COURT: All right.
6 MR. BARKOW: Your Honor, this is a call -- purported
7 call that occurred on April 29th of 1999 between Yassir
8 Al-Sirri and Ahmed Abdel Sattar.
9 THE COURT: All right.
10 (At this point, Government Exhibit 1016X, in evidence,
11 was displayed and read to the jury).
12 MR. BARKOW: Your Honor, would you like us to go to
13 the next call as well?
14 THE COURT: How long.
15 MR. BARKOW: This one is only two pages, actually.
16 THE COURT: All right.
17 MR. BARKOW: At this point, we'd ask to display to the
18 jury and read to the jury Government Exhibit 1017X, which is
19 admitted into evidence.
20 THE COURT: All right.
21 MR. BARKOW: This is a recorded call that occurred on
22 April 29th, 1999, between participants Abdel Ahmed Sattar and
23 Yassir Al-Sirri. I will continue to read the lines of Yassir
24 Al-Sirri and Mr. Forkner will read the lines of Ahmed Sattar.
25 THE COURT: All right.
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1 (At this point, Government Exhibit 1017X, in evidence,
2 was displayed and read to the jury).
3 THE COURT: All right. Ladies and gentlemen, we'll
4 break for lunch now, and we'll break until 2:00 o'clock.
5 Please remember my continuing instructions: Not to talk about
6 the kiss, keep an open mind.
7 Have a very good lunch. I look forward to seeing you
8 this afternoon.
9 All rise, please.
10 (Whereupon, the jury exits the courtroom)
11 THE COURT: All right, Mr. Forkner, you may step down.
12 Please be back by five of 2:00.
13 (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 2:05 p.m.
3 (In open court; jury not present)
4 THE COURT: Good afternoon, all. Please be seated.
5 Shall we bring in the jury?
6 MR. MORVILLO: The government's ready, your Honor.
7 Your Honor, at some point before the break there's
8 going to be a conversation between Sattar and Mr. Yousry.
9 David Kahn from our office will be reading the attributions for
10 Mr. Yousry, if that's okay with the Court.
11 THE COURT: All right.
12 MR. BARKOW: Your Honor, we've realized that on some
13 of these --
14 DEPUTY CLERK: All rise.
15 (Continued on next page)
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1 (Whereupon, the jury enters the courtroom)
2 (In open court)
3 THE COURT: Please be seated, all. Good afternoon,
4 ladies and gentlemen.
5 JURORS: Good afternoon.
6 THE COURT: Good to see you all.
7 Counsel had just begun to take up something, we can
8 take it up at the break?
9 MR. BARKOW: It's not an issue, your Honor.
10 THE COURT: Okay.
11 MR. BARKOW: Your Honor, at this point I'd ask the
12 Court's permission to read and publish to the jury on the
13 screen Government Exhibit 1022X which has been admitted into
14 evidence.
15 THE COURT: All right.
16 MR. BARKOW: Your Honor, this is a recorded call that
17 occurred on September 13th of 1999. There are two
18 participants: Ahmed Abdel Sattar and Firas Jandali. I will be
19 reading the lines attributed to Firas Jandali and Mr. Forkner
20 will be reading the lines of Ahmed Abdel Sattar.
21 THE COURT: All right.
22 MR. BARKOW: May we proceed?
23 THE COURT: Yes.
24 (At this point, Government Exhibit 1022X, in evidence,
25 was displayed and read to the jury)
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1 MR. BARKOW: Your Honor, at this point the government
2 would ask permission to publish to the jury by reading and also
3 by publishing on the screen Government's Exhibit 1023X.
4 THE COURT: All right.
5 MR. BARKOW: Your Honor, this is a call also on
6 September 13th, 1999. The participants in this excerpt are
7 Ahmed Abdel Sattar and Mustafa Hamza. There's an unidentified
8 child. This is in the header, that that part has been
9 excerpted per agreement by the parties and it's been replaced
10 by asterisks.
11 THE COURT: All right.
12 MR. BARKOW: I will be reading the lines attributed to
13 Mustafa Hamza. Mr. Forkner will be reading the lines
14 attributed to Ahmed Abdel Sattar.
15 (At this point, Government Exhibit 1023X was displayed
16 and read to the jury)
17 MR. MORVILLO: Your Honor, at this time the government
18 would request permission to publish to the jury and read
19 Government Exhibit 1025X.
20 THE COURT: All right.
21 MR. MORVILLO: For the record, this is dated
22 September 13th, 1999. I will do the attributions of Ahmad Taha
23 Musa; and the attributions of Abdel Sattar will be Mr. Forkner.
24 As previous, the attributions of Mohammed Elmasry were redacted
25 out per agreement.
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1 (At this point, Government Exhibit 1025X, in evidence,
2 was displayed and read to the jury).
3 MR. MORVILLO: Your Honor, with the Court's
4 permission, may we read Government Exhibit 1026X and publish it
5 to the jury?
6 THE COURT: Yes.
7 MR. MORVILLO: For the record, this call is also from
8 September 13th, 1999.
9 (At this point, Government Exhibit 1026X, in evidence,
10 was displayed and read to the jury)
11 MR. MORVILLO: Your Honor, if the government may read
12 Government Exhibit 1027X and publish it to the jury?
13 THE COURT: All right.
14 MR. MORVILLO: This call also occurred on
15 September 13th, 1999. It also involves, in addition to Ahmad
16 Taha and Ahmed Abdel Sattar, Montasser Al-Zayyat.
17 (At this point, Government Exhibit 1027X, in evidence,
18 was displayed and read to the jury).
19 MR. MORVILLO: Your Honor, at this time the government
20 would request permission to read Government Exhibit 1028X.
21 THE COURT: All right.
22 MR. MORVILLO: And this is a call between Ahmed Abdel
23 Sattar and Mohammed Yousry, September 19, 1999. The government
24 would request permission to have David Kahn from our office
25 read the attributions of Mr. Yousry.
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1 THE COURT: All right.
2 MR. MORVILLO: May we also display it for the jury,
3 your Honor?
4 THE COURT: Yes.
5 (At this point, Government Exhibit 1028X, in evidence,
6 was displayed and read to the jury)
7 MR. MORVILLO: Your Honor, at this time the government
8 would request permission to read Government Exhibit 1029X and
9 publish it to the jury.
10 THE COURT: All right.
11 MR. MORVILLO: For the record, this is a call on
12 September 20th, 1999 between Ahmed Abdel Sattar and Rifa'i
13 Taha.
14 (At this point, Government Exhibit 1029X, in evidence,
15 was displayed and read to the jury)
16 (Continued on next page)
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1 MR. MORVILLO: Your Honor, at this time the government
2 would request permission to read to the jury and display for
3 the jury Government Exhibit 1030X. Once again, this is a call
4 again with Ahmed Abdel Sattar and Mohammed Yousry.
5 May we ask Mr. Kahn to help read the portions of
6 Mr. Yousry?
7 THE COURT: Yes.
8 (At this point, Government Exhibit 1030X in evidence
9 was read to the jury)
10 MR. MORVILLO: Your Honor, I think there are pages out
11 of order.
12 If you go to page 6 you can start at the top of that
13 page.
14 (Reading continued)
15 MR. BARKOW: Your Honor, at this point -- actually
16 might I approach to give the transcript to Mr. Forkner?
17 THE COURT: Yes.
18 MR. BARKOW: Your Honor, at this point the government
19 requests permission to publish to the jury, both on the screen
20 and by reading, what has been admitted into evidence as
21 Government Exhibit 1031X.
22 THE COURT: All right.
23 MR. BARKOW: Your Honor, this is a call recorded that
24 occurred on October 23, 1999. It has three participants, Ahmed
25 Abdel Sattar, Yassir al-Sirri, and an unidentified male. I
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1 will be reading the lines of Yassir al-Sirri. Mr. Forkner will
2 be reading the lines of Mr. Ahmed Abdel Sattar, and Mr. Dember
3 will be reading the lines of the unidentified male.
4 (At this point, Government Exhibit 1031X in evidence
5 was read to the jury)
6 MR. MORVILLO: Your Honor, the government requests
7 permission to read Government Exhibit 1032X.
8 THE COURT: All right.
9 MR. MORVILLO: May I approach Mr. Forkner?
10 THE COURT: Yes.
11 MR. MORVILLO: Your Honor, may we publish it to the
12 jury?
13 THE COURT: Yes.
14 MR. MORVILLO: For the record, this call is October
15 30, 1999. The header reflects five participants but in this
16 one there is actually three. Ahmed Abdel Sattar is Mr.
17 Forkner, and Rifa'i Ahmad Taha Musa I will read, and Mr. Barkow
18 will read Salem Hashim.
19 (At this point, Government Exhibit 1032X in evidence
20 was read to the jury)
21 THE COURT: This is a convenient time for us to take
22 our break.
23 We will take ten minutes, ladies and gentlemen.
24 Please remember my continuing instructions not to talk about
25 the case. Keep an open mind.
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1 All rise please.
2 (Jury left the courtroom)
3 THE COURT: See you in ten minutes.
4 (Recess)
5 THE COURT: Let me see the lawyers.
6 (Side bar conference)
7 THE COURT: Mr. Fletcher advises me that two jurors
8 have complained about Juror Number 9 dozing off. I am prepared
9 to call Juror Number 9 in and explain to Juror Number 9 the
10 importance to all the parties of attentiveness and say, please,
11 if at any time you feel that you are having a problem, just
12 raise your hand and I am happy to call a break. And if the
13 parties think that I should do anything else, I am perfectly
14 happy to do anything else. I would tend to do this, in order
15 to avoid any embarassment -- I would attempt to do it I think
16 first thing tomorrow. I could do it now. I could also do it
17 first thing in the morning.
18 Just because of transportation, I don't like keeping
19 everyone else.
20 MR. TIGAR: Your Honor, I have a suggestion.
21 THE COURT: Sure.
22 MR. TIGAR: Why not start the next session by saying,
23 you know, this may not be the most interesting part of this
24 trial, or whatever introduction you would say, but if any
25 jurors are having trouble, it can be hard to concentrate on the
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1 written word. I myself have trouble with my eyes, and so on.
2 If anybody has a problem and feels they need a break please
3 raise your hands. Attentiveness is important. Raise it to the
4 generality of attentiveness. I am not trying to make light of
5 it.
6 MR. STERN: We agree with that, your Honor. Probably
7 the ones complaining are also sleeping. She is not the only
8 person and she shouldn't be singled out. I am sure some jurors
9 mentioned her by number and I think it's appropriate to mention
10 it to everyone.
11 MR. DEMBER: We were going to take the opportunity
12 before the juror was brought back into the courtroom that
13 members of our team have noticed she was sleeping and there are
14 other jurors who are trying to wake her during the course of
15 these proceedings.
16 MR. PAUL: I would also point out that it's true Juror
17 9 is nodding out periodically, but she is clearly not the only
18 juror doing that. I can name at least two other jurors who
19 have nodded out in the last period of time.
20 THE COURT: I really try to follow the jury very
21 carefully and to stare as them as a helpful way of --
22 MR. PAUL: Keeping them awake.
23 THE COURT: -- of making sure that they know that
24 people are watching, because I believe that all of the parties
25 are entitled to that sort of attentiveness and constant
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1 attentiveness and my observation is that Juror Number 9
2 presents a particular issue, but I really don't like to single
3 people out and I don't want to embarrass anyone. And I don't
4 want to interfere with any of the parties' desire not to
5 distinguish among any of the jurors.
6 I will give a general talk to the jurors without
7 attempting in any way to disparage any of the evidence or any
8 of the jurors and what I may try to do also is I will take
9 periodic breaks. I will take stretch breaks in order to help
10 people even in addition to the break that I take so that people
11 can go to the facilities and all. I do that during the charge
12 and I have done it during trial. So transcripts are difficult
13 and it also would be useful to put on the headphones at the
14 beginning of more of the transcripts and I will give the talk
15 because I think it's important.
16 MR. TIGAR: Ms. Shellow-Lavine also suggests a stretch
17 break, everybody stand up and breathe.
18 THE COURT: That is what I meant by the extra break.
19 MR. BARKOW: May we have a moment before they come in
20 so we can get the computer ready to play a few more? It takes
21 a second just to get that lined up.
22 THE COURT: Sure.
23 (Recess)
24 (In open court; jury not present)
25 THE COURT: Please be seated all.
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1 Let's bring in the jury.
2 MR. MORVILLO: Your Honor, we are going to read the
3 next two calls and then play one, at least a portion of one.
4 THE COURT: All right.
5 MR. MORVILLO: There are probably three more
6 transcripts that should get us through the afternoon. Again,
7 like yesterday, if it's in the middle of the call around 4:30
8 we should request the break.
9 THE COURT: Fine.
10 (In open court; jury present)
11 THE COURT: Please be seated all.
12 Ladies and gentlemen, we were in the middle of reading
13 the transcripts. Let me just make a couple of announcements.
14 We will break today at 4:30. As I told you, we will
15 break tomorrow at 12:15. So if there are arrangements or
16 anything that you would want to make for the afternoon you are
17 welcome to make them. We obviously don't sit on Fridays, and
18 then we will resume on Monday at 9:30.
19 The particular evidence that we are going through at
20 this point I have given you instructions on it, including the
21 use of transcripts, and I should also explain to you that
22 evidence comes in different types and when evidence comes in
23 through recordings and through transcripts it is somewhat more
24 difficult obviously to follow and to be attentive as opposed to
25 a live witness testifying. But that doesn't in any way mean
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1 that the jurors don't have to be just as attentive to all of
2 the other evidence. It's more difficult. It requires a
3 greater effort because it's not live testimony. But all of the
4 parties, as I have always told you, are entitled to your fair
5 consideration of all of the evidence. That is part of
6 fairness, keeping an open mind until you have heard,
7 considered, all of the evidence, I have instructed you on the
8 law, and you have gone to the jury room to begin your
9 deliberations.
10 If at any time anyone needs a break, as I told you I
11 believe in my initial instructions, just raise your hand and I
12 will be happy to take a break for you. Similarly, it may be
13 that in addition to the regular breaks that we take, if I think
14 it's necessary we will take a brief stretch break at various
15 times just to help all of us. It's difficult to use our eyes
16 and read and listen, and so if I take a stretch break don't
17 consider it unusual. It just means that we all get up, stand
18 in place, and stretch.
19 You may have noticed me in my chair moving somewhat
20 more than usual. I am simply stretching in place without
21 getting up. But it may be necessary that I will have all of us
22 stretch and get up. So even if I don't take a stretch break,
23 please feel free on your own to take your own stretch break in
24 place, but I may well at various times have all of us get up
25 and stretch.
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1 And I do all of this in fairness to all, all, all of
2 the parties and I reiterate again that it's very important for
3 the jurors to keep an open mind until they have heard all of
4 the evidence, I have instructed them on the law, and they have
5 gone to the jury room to begin their deliberations. Fairness
6 and justice to the parties requires that you do that.
7 Okay. The government may proceed.
8 MR. MORVILLO: Your Honor, at this time the government
9 would request permission to read Government Exhibits 1033X and
10 then follow that with the reading of Government Exhibit 1035X.
11 Both are telephone calls between Ahmed Abdel Sattar and Rifa'i
12 Ahmad Taha Musa on different dates. The first call is October
13 30, 1999. That is Government Exhibit 1033X.
14 May we display it to the jury, your Honor?
15 THE COURT: Yes.
16 (At this point, Government Exhibit 1033X in evidence
17 was read to the jury)
18 MR. MORVILLO: For the record, this is Government
19 Exhibit 1035X, November 7, 1999.
20 May we have permission to display this to the jury,
21 your Honor?
22 THE COURT: Yes.
23 (At this point, Government Exhibit 1035X in evidence
24 was read to the jury)
25 (Continued on next page)
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1 MR. BARKOW: Your Honor, at this point we would ask
2 that we be permitted to play to the jury a portion of
3 Government Exhibit 1044, which has been admitted into evidence,
4 if they could put on their headphones.
5 THE COURT: All right. Ladies and gentlemen, if
6 you'll put on your headphones and remember the dot goes out and
7 you have to turn it on.
8 MR. BARKOW: May we start?
9 THE COURT: Yes.
10 (At this point, portions of Government Exhibit 1044,
11 in evidence, was played for the jury)
12 THE COURT: All right, take your headphones off.
13 MR. BARKOW: We'd like to start with 1044X, which has
14 been admitted into evidence. I believe it's going to be too
15 long to finish, but we can go until the break point.
16 THE COURT: All right.
17 MR. BARKOW: November 14th, 1999. It involves Ahmed
18 Abdel Sattar, read by Mr. Forkner; and Sa'ad Hasaballah, which
19 will be read by me.
20 May we begin, please?
21 THE COURT: Yes.
22 (At this point, Government Exhibit 1044X, in evidence,
23 was displayed and read to the jury)
24 MR. BARKOW: Your Honor, this is a good spot.
25 THE COURT: All right. This is a convenient point for
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1 us to break, ladies and gentlemen. We'll break tomorrow till
2 9:30. Please follow all my instructions. Please remember not
3 to read or look at anything involving the case. Please
4 remember not to talk about the case or anything to do with it.
5 Please remember always to keep an open mind until you've heard
6 all of the evidence, I've instructed you on the law and you've
7 gone to the jury room to begin your deliberations. Fairness
8 and justice to the parties requires that you do that.
9 Have a very good evening, and I look forward to seeing
10 you all tomorrow.
11 (The jury exits the courtroom)
12 THE COURT: All right. Please be seated, all. Please
13 be here tomorrow morning at 9:15. Unless there's something
14 else someone wants to bring up to me?
15 MR. BARKOW: Your Honor, there's one very, very quick
16 matter. Yesterday, when we offered into evidence the "X"
17 transcripts, the Court admitted them, and the government's
18 recollection was that the Court said in essence that the
19 exhibits were received in evidence subject to whatever future
20 limiting instructions might be given or requested or something
21 to that effect -- I don't know exactly what.
22 It was reported in the transcript as, and I'll
23 quote -- this is Page 3679 -- Those exhibits are all received
24 in evidence such as has been given with limiting instructions,
25 end quote.
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1 We don't think that that's what the Court said,
2 because the limiting instruction had not yet been discussed or
3 crafted and we thought it was something more along the lines of
4 they were admitted subject to whatever limiting instructions
5 might be given, and we were just requesting that perhaps that
6 could be corrected in the records because it seems instead to
7 be a reference to --
8 THE COURT: Could you just hand me the page? Or
9 what's the page number?
10 MR. BARKOW: It's 3679. It's the tab sticking out on
11 the copy I just handed Mr. Fletcher.
12 THE COURT: I have my transcript here.
13 MS. SHELLOW-LAVINE: 3679? Was that the page number?
14 THE COURT: 3679. What I meant was, these exhibits
15 are all received in evidence subject to the limitations that I
16 put on. And what that meant was I overruled the objections
17 with respect to 1000 and 1015 that were specifically made. And
18 that was the discussion that I had later with Mr. Tigar.
19 I also, in overruling the objections, which were
20 specifically made to 1000 and 1015, said that I hadn't ruled on
21 any subsequent objections that might be raised to the content
22 such as 106 objections or other such objections to the content.
23 And so I awaited any such objections which were made, and to
24 the extent that any objections, any such objections were made,
25 I would rule on them.
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1 And we had a subsequent decision with respect to that
2 on 106. And then we had a subsequent discussion with respect
3 to the limitation that I put on 1001.
4 So that was what that meant.
5 MR. BARKOW: Yes, your Honor. It was our
6 understanding that what the Court said was what the Court just
7 explained. But it was our reading of the transcript that it
8 actually didn't capture accurately what the Court said, so I
9 think that with the Court's explanation, even -- that the
10 record is clear now. Just we had thought the Court had
11 actually spoken different words than those that were reflected
12 in the transcript.
13 However, as I said, with the Court's explanation, at
14 the very least I think it's clear now.
15 MR. TIGAR: Your Honor, first, we don't think, or I
16 don't think it's a good idea to get into editing the transcript
17 on a rolling basis. I think the question was what further
18 objections might want be made, and our reservation of rights is
19 addressed in a colloquy that the Court had beginning at the
20 bottom of Page 3685 and continuing on to 3686. And that was
21 when Ms. Baker said something, then I said something. And I
22 respectfully suggest that with that, the transcript accurately
23 reflects the status of where we are and accurately reflects the
24 views that your Honor has just expressed.
25 THE COURT: Okay. Well, everyone agrees that the
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1 transcript is -- now accurately reflects what was done.
2 MR. BARKOW: Thank you, your Honor.
3 THE COURT: And I'll return your copy of the
4 transcript.
5 Okay? Anything else?
6 MR. BARKOW: Not from the government.
7 THE COURT: One moment.
8 (Off the record)
9 THE COURT: Can I talk to the parties?
10 (Continued on next page)
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1 (At the sidebar)
2 THE COURT: I got a note from the juror who sits in
3 chair Number 8, who is Juror 292. The parties are welcome to
4 review it. We'll mark it as Court Exhibit 2. It says,
5 Number 292, vacation, September 16 to the 20th. Thursday to
6 Monday.
7 Mr. Fletcher explains to me that the juror's wife won
8 this vacation. I don't know how she won it, but she won it,
9 and that would be -- if these dates are correct, those are two
10 days. I can talk to the juror tomorrow about whether there's
11 any way of changing the days. Even if the juror couldn't
12 change those days, it's only two days, a Thursday and a Monday.
13 I'll probably talk to the juror at the break tomorrow, just
14 inquire further.
15 The parties are welcome to inspect the note.
16 (Court Exhibit 2 received in evidence)
17 MR. DEMBER: Thank you, your Honor.
18 MR. MORVILLO: No, thank you.
19 MR. TIGAR: Thank you.
20 THE COURT: Okay.
21 (In open court)
22 THE COURT: Have a good evening.
23 (Adjourned to Thursday, July 15, 2004, @ 9:15 a.m.)
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