18 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 23 of the proceeding and Day 14 of the trial.
See other transcripts: http://cryptome.org/usa-v-ssy-dt.htm
Lynne Stewart web site with case documents: http://www.lynnestewart.org/
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1 UNITED STATES DISTRICT COURT
1 SOUTHERN DISTRICT OF NEW YORK
2 -------------------------------------x
2 UNITED STATES OF AMERICA,
3
3 v. S1 02 Cr. 395 (JGK)
4
4 AHMED ABDEL SATTAR, a/k/a "Abu Omar,"
5 a/k/a "Dr. Ahmed," LYNNE STEWART,
5 and MOHAMMED YOUSRY,
6
6 Defendants.
7 -------------------------------------x
7
8 July 15, 2004
8 9:40 a.m.
9
9
10
10 Before:
11 HON. JOHN G. KOELTL
11
12 District Judge
12
13
13 APPEARANCES
14
14 DAVID N. KELLEY
15 United States Attorney for the
15 Southern District of New York
16 ROBIN BAKER
16 CHRISTOPHER MORVILLO
17 ANTHONY BARKOW
17 ANDREW DEMBER
18 Assistant United States Attorneys
18
19 KENNETH A. PAUL
19 BARRY M. FALLICK
20 Attorneys for Defendant Sattar
20
21 MICHAEL TIGAR
21 JILL R. SHELLOW-LAVINE
22 Attorneys for Defendant Stewart
22
23 DAVID A. RUHNKE
23 DAVID STERN
24 Attorneys for Defendant Yousry
25
SOUTHERN DISTRICT REPORTERS, P.C.
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1 (At the sidebar)
2 THE COURT: I checked the calendar, and September 16th
3 is a holiday that I've already indicated we wouldn't sit on.
4 So the juror who has a spouse who won a trip for the 16th
5 through the 20th, the only day that would be affected is the
6 20th.
7 In fairness, it seems to me that I should still call
8 the juror in and say, if you can change it or switch it, that
9 would be good. That's what we ask with respect to vacations.
10 If you can't, then we will understand, because we take days
11 that individual jurors need for personal reasons. So, please
12 check and then tell me.
13 And I think I should do that first thing this morning,
14 to take two minutes with the juror. So the parties are welcome
15 to come back to the robing room.
16 (Continued on next page)
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1 (In the robing room)
2 (Juror No. 292 enters the robing room; Mr. Morvillo
3 and Ms. Shellow-Lavine in attendance)
4 THE COURT: Whenever I talk to a juror, I always have
5 some of the lawyers present, so that shouldn't concern you.
6 You can ignore them.
7 JUROR: Okay.
8 THE COURT: I don't want to talk to you about any of
9 your views of the case or anything like that. I never talk to
10 jurors about substance. The reason I'm talking to you is
11 Mr. Fletcher told me that your spouse won a sweepstakes and
12 it's for the 16th through the 20th.
13 JUROR: 20th of September.
14 THE COURT: Of September. We would not be sitting on
15 the 16th. It's -- I indicated at the outset that there are
16 various holidays that are observed. The 16th is one of them.
17 So we would not be sitting on the 16th in any event. So the
18 only date that's affected for us is the 20th. Now, I don't
19 know what the details of the trip are. Let me leave it with
20 you this way:
21 If it is a trip that can, you know, reasonably be
22 rescheduled so that we don't lose that day, that would be good,
23 because I've asked jurors in general to reschedule vacations
24 because every day that a juror takes off all of us take off.
25 JUROR: I appreciate that.
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1 THE COURT: So if it is reasonably possible to simply
2 take the trip and reschedule it, or return from the trip on the
3 19th so that we don't take off on the 20th, those are
4 possibilities that I suggest to you. And it would be good if
5 you could do that.
6 If all else fails and you tell me, No, Judge, this is
7 really, really important, it's like a doctor's appointment or
8 something else, and -- for my spouse or whatever, this is
9 important, I've also indicated that I defer to personal
10 emergencies for jurors.
11 So I appreciate it if you could look into it and
12 reschedule it or avoid any problem on 20th. That would be
13 great because that gives us that day for everyone.
14 But if you absolutely can't, then it would be a date
15 that none of us could sit.
16 JUROR: I appreciate that. I'll see what I can do to
17 move or come back a day early.
18 THE COURT: I appreciate that. Thank you.
19 JUROR: Thank you.
20 THE COURT: And again, whenever I talk to a juror,
21 don't repeat anything that I say to other jurors.
22 JUROR: No.
23 THE COURT: Thanks.
24 (Juror No. 292 exits the robing room)
25 MR. MORVILLO: Should we seal this portion of the
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1 transcript?
2 THE COURT: Only if it's a matter of -- personal
3 issues. I've done it with health problems and whatever. I
4 don't think I've done it with respect to a vacation. I don't
5 see a reason to do that.
6 MR. MORVILLO: I was just wondering if we needed to.
7 MS. SHELLOW-LAVINE: We have no request to do that.
8 MR. MORVILLO: Nor does the government.
9 THE COURT: Okay.
10 (Continued on next page)
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SOUTHERN DISTRICT REPORTERS, P.C.
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1 (In open court; jury not present)
2 THE COURT: Please be seated, all.
3 MR. RUHNKE: Your Honor, just very briefly before the
4 jury comes in, there is an issue we've been discussing with the
5 government back and forth that may arise around the time of the
6 mid morning break, and that is the government's attempt to
7 introduce Exhibit 508 which is a newspaper article reporting a
8 fatwa involving bin Laden and Taha. We would like to be heard
9 before that is presented to the jury.
10 And I just clarified with the government that it was
11 not an article that was taken out of anyone's home or during a
12 search. It's simply an article that the government has
13 obtained, and we want to be heard on it before it's presented,
14 and we think around the break will be a natural time.
15 THE COURT: Fine. The government should not seek to
16 admit it, refer to it, until I've heard the parties.
17 MR. BARKOW: One other quick issue, your Honor -- this
18 may also occur around the break -- we may seek to publish a
19 portion of Government Exhibit 2031, which the Court ruled
20 admissible. That's the protocols of the elders of Zion. What
21 we're proposing to publish to the jury was the introduction --
22 from the cover to the introduction, and we wanted to raise
23 that. We didn't know if any of the parties were going to seek
24 to have us publish the entirety of the exhibit.
25 THE COURT: All right. You can raise that with the
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1 defendants. If you sought to publish it, it would be subject
2 to the limiting instructions that I had given. Okay? So don't
3 admit it before the break, until you've had an opportunity to
4 discuss the issue. Okay?
5 Anything else? All right, let's bring in the jury.
6 (Continued on next page)
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1 (Jury entering courtroom)
2 (In open court)
3 THE COURT: All rise, please. Please be seated, all.
4 Good morning, ladies and gentlemen.
5 JURORS: Good morning.
6 THE COURT: It's good to see you all. Mr. Barkow?
7 MR. BARKOW: Your Honor, we would like to proceed, if
8 we can, with the publication of and reading of government
9 Exhibit 1044X, where we ended yesterday.
10 THE COURT: All right.
11 MR. BARKOW: If we may, can we start just by putting
12 the first page on so we get the date? This is a call, your
13 Honor, on November 14 of 1999. I will continue reading the
14 part of Sa'ad Hasaballah, and Mr. Forkner will continue reading
15 the part of Ahmed Abdel Sattar. We finished yesterday with
16 Page 17.
17 THE COURT: Okay.
18 MR. BARKOW: May I proceed?
19 THE COURT: Yes, please.
20 (At this point, Government Exhibit 1044X, in evidence,
21 was displayed and read to the jury, continuing)
22 MR. BARKOW: Your Honor, at this point we'd ask --
23 we're shifting, if we may, to some of the Sattar search issues.
24 I'd ask Mr. Forkner be excused.
25 THE COURT: All right.
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1 MR. BARKOW: Specifically, your Honor, what we'd like
2 to do is offer into evidence and then read government
3 Exhibit 2042 and -- which I think is not yet in evidence. We
4 would offer that in evidence and ask if we can publish it to
5 the jury.
6 THE COURT: All right. Ladies and gentlemen, this
7 exhibit is subject to the same limiting instructions that I
8 gave you with respect to this series of exhibits. This exhibit
9 is offered only against Mr. Sattar and not against Ms. Stewart
10 or Mr. Yousry, and it's offered only with respect to the
11 knowledge, intent and state of mind of Mr. Sattar, and that's
12 the only purpose for which you can consider it.
13 MR. BARKOW: Your Honor, may we publish on the screen
14 for the jurors Exhibit 2042?
15 THE COURT: Yes.
16 (At this point, Government Exhibit 2042, in evidence,
17 was displayed and read to the jury)
18 THE COURT: This is a convenient time for us to take a
19 stretch break, as long as there's a summary there. Ladies and
20 gentlemen, when I say a stretch break, that means you can get
21 up and physically, you know, stretch.
22 (Brief recess)
23 THE COURT: All right. You may proceed.
24 (At this point, Government Exhibit 2042, in evidence,
24
25 was read to the jury, continuing)
25 (Continued on next page)
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1 MS. BAKER: Your Honor, the government offers at this
2 time a stipulation marked as Government Exhibit 2086T-B.
3 THE COURT: All right. No objection, Government
4 Exhibit 2086T-B received in evidence.
5 (Government's Exhibit 2086T-B received in evidence)
6 MS. BAKER: May I read it to the jury, your Honor?
7 THE COURT: Yes.
8 (At this point, Government Exhibit 2086T-B in evidence
9 was read to the jury by Ms. Baker)
10 THE COURT: All right.
11 MS. BAKER: Your Honor, based on that stipulation and
12 prior testimony, the government at this time offers Government
13 Exhibit 2040 and 2040T, 2077 and 2077t, 2079 and 2079T.
14 THE COURT: All right. No objections, Government
15 Exhibits 2040 and 2040T, 2077 and 2077t, 2079 and 2079T
16 received in evidence.
17 (Government's Exhibits 2040, 2040T, 2077, 2077T, 2079
18 and 2079T received in evidence)
19 MS. BAKER: At this time we request permission to
20 display to the jury and read Government Exhibit 2040T.
21 THE COURT: All right.
22 (At this time, Government Exhibit 2040T in evidence
23 was read to the jury by Ms. Baker)
24 THE COURT: Could you hold on one moment?
25 Ladies and gentlemen, with respect to these three
SOUTHERN DISTRICT REPORTERS, P.C.
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1 exhibits and the translations of those exhibits, these exhibits
2 are admitted only against Mr. Sattar and not against Ms.
3 Stewart or Mr. Yousry. They are admitted solely with respect
4 to the knowledge, intent, and state of mind of Mr. Sattar and
5 Omar Abdel Rahman, and you may consider them solely for that
6 purpose.
7 Thank you.
8 Go ahead.
9 (Reading continued)
10 THE COURT: All right.
11 Ladies and gentlemen, we will take our mid-morning
12 break for ten minutes. Please remember my continuing
13 instructions not to talk about the case. Keep an open mind.
14 All rise please.
15 Follow Mr. Fletcher to the jury room.
16 (Jury left the courtroom)
17 THE COURT: Please be seated all.
18 There was one issue that you all were going to discuss
19 but there was another issue, which was 508, that was not one
20 that you were going to discuss.
21 MR. RUHNKE: It was the issue of 508, yes, your Honor.
22 THE COURT: Right.
23 MR. RUHNKE: Your Honor, I don't know if you have seen
24 Exhibit 508 or if the government has a copy that they can
25 display for the court.
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1 THE COURT: I have it.
2 MR. RUHNKE: Okay. It's a newspaper -- do you have
3 the newspaper page?
4 THE COURT: I just have the translation 508T.
5 MR. RUHNKE: 508 is a translation of the newspaper
6 page which is the government is now putting up on the screen,
7 your Honor.
8 THE COURT: Okay.
9 MR. RUHNKE: This comes up in the following context:
10 As part of the government's first motion in limine, or one of
11 their motions in limine, they sought permission from the court
12 to introduce evidence of the fact that Taha was a signatory to
13 a fatwah issued by Osama Bin Laden in February 1998. That
14 fatwah called upon Muslims "to kill Americans and plunder their
15 wealth wherever and whenever they find it."
16 You granted the government's motion in limine at page
17 9 of your order dated June 11, 2004. You did so based on the
18 government's proffer that the evidence would include telephone
19 calls between Taha and Sattar during which the two discussed
20 the fatwah. You noted the government sought to admit the
21 evidence only against Sattar and not Stewart and Yousry.
22 I believe we have had the telephone call that is
23 referred to in the government's paper and in your order. If I
24 am wrong on that, the government will certainly correct me.
25 But that was 1002X, which was played yesterday, or the day
SOUTHERN DISTRICT REPORTERS, P.C.
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1 before. This is a discussion between Taha and Al-Zayat,
2 Montasser Al-Zayat. And at page 19 of that transcript Taha
3 tells -- at page 20 -- Taha tells Al-Zayat that he wants him to
4 read a newspaper article of an interview with him that was
5 published in Al-Quds on August 15, 1998. The context is that
6 the bombings of the American embassies in Tanzania and Kenya
7 had taken place on August 7, 1998, and most of the article is
8 discussing who was responsible or could have been responsible
9 for the bombings of the American embassies. And in the article
10 reference is made to a February 1998 fatwah that nobody had
11 paid much attention to to kill Americans wherever they can be
12 found.
13 To put some further time frames on this, the phone
14 conversation occurs on December 12, 1998, and what Taha is
15 telling Al-Zayat is that they should read the interview of him
16 that is contained in that newspaper article; that he should
17 read it and he would like the brothers "inside," which I take
18 is a reference to prison members of the Islamic Group, to also
19 read it as an example of the kind of things people should be
20 saying in the media.
21 I do not see a reference in the discussion of the
22 fatwah at that point, and if there is some other discussion,
23 believe me, there is enough going on in this case that I could
24 have missed it. I don't see any discussion of the fatwah
25 itself, just of the newspaper interview of Taha.
SOUTHERN DISTRICT REPORTERS, P.C.
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1 The newspaper article itself, which the government
2 seeks to introduce, is not an article that was recovered
3 anywhere. It's not an article, for example, that Sattar had in
4 his house or Mr. Yousry had in his house or anybody had in
5 their house. The government simply went and got the article
6 from public sources and now wishes to introduce the article,
7 the entire article, into evidence. We have had for some time a
8 translation -- I have believe we had it for some time, I may be
9 wrong on that too -- of parts of the article. Although I am
10 looking at the translations that are 508T, 508T2, 508T3, and
11 508T4, and they are dated this month, some as recently as
12 yesterday. So I guess maybe we couldn't have had the final
13 translations for more than a week or so.
14 But it does not appear that what was stated on the
15 tape between Taha and Al-Zayat would in any sense justify
16 introduction of the entire newspaper article, part of which is
17 a long discussion of who is responsible for the bombing, part
18 of which is a biography, a biographical sketch of Osama Bin
19 Laden, a large photograph of Osama Bin Laden, a biographical
20 sketch of Taha that is all contained within this newspaper
21 article.
22 I understand that it's only admissible and offered
23 against Mr. Sattar and I presume somewhere in this conversation
24 of December 12, '98 Mr. Sattar was a participant and may have
25 been there as part of a three-way telephone call. Otherwise,
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1 it would not have been recorded. So Sattar at least is a
2 passive listener to part of the conversation.
3 But our application is -- now that we have it all in
4 context as distinct from the in limine motion -- to have the
5 court not admit it at all pursuant to Rule 403 or,
6 alternatively, certainly not to admit the parts of the
7 newspaper article -- for example, the photograph of Bin Laden
8 and the discussion of who Bin Laden is and his background -- as
9 unfairly prejudicial.
10 When we were selecting a jury in this case the court
11 told the jury this case had nothing to do with September 11.
12 September 11 is not alleged to be part of this case. I think
13 to my mind, and to every American, Osama Bin Laden and
14 September 11 are inseparable. So our application is to not
15 allow the exhibit to the extent that there may be a discussion
16 of the fatwah in there that in the context now that you have
17 heard it all and in the context of everything else you have
18 seen, that it's unfairly prejudicial to everybody on trial and
19 to not allow the evidence.
20 MR. TIGAR: Your Honor, may I add a few words?
21 THE COURT: Sure.
22 MR. TIGAR: In addition to the general problems of a
23 media article that sweeps well beyond the fatwah, I would point
24 in Exhibit 1002X to page 23 which is a reference by Mr. Sattar
25 to the group, presumably the group that issued whatever
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1 statement Taha was telling Al-Zayat about. He says -- excuse
2 me, the front -- and let me start again. The front is the
3 group that issued the statement. "The group" I take to be the
4 Islamic Group. Because Mr. Sattar says at lines 8 through 10
5 "the group is not part of the front." And then he says
6 beginning at line 20, "even when they talk about the front,"
7 and he names the members of the front, which means the Islamic
8 Group is not part of it.
9 Then at page 25 Al-Zayat picks up again, beginning at
10 line 5, and says, "The group has a lot of problems. They don't
11 need to get into conflict with another power, especially if it
12 is a great power, a superpower." And Taha says "Uhm," and then
13 Al-Zayat picks up and says, "We don't need enmity with
14 America."
15 So to the extent there is discussion on 1002 that
16 supports the fatwah, it points exactly away, and to introduce
17 this bunch of stuff which comes out of the newspaper in the
18 context of the embassy bombings and Osama Bin Laden, well,
19 raises a problem that Mr. Ruhnke is talking about. But I did
20 want to point out those additional paragraphs or passages from
21 1002.
22 THE COURT: All right.
23 MS. BAKER: Your Honor, let me begin by addressing Mr.
24 Ruhnke's last point and then by proffering some of the contents
25 of 1002X, which is already in evidence, and the proposed
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1 Exhibit 508 by reference to its translations. I hope to make
2 clear to the court the relevance of this evidence and refute
3 the points that Mr. Ruhnke and Mr. Tigar have raised.
4 First, at the end Mr. Ruhnke seemed to be suggesting
5 that there would be unfair prejudice from introduction of this
6 exhibit because it includes reference to and includes a
7 photograph of Bin Laden. Your Honor has already ruled on the
8 403 prejudice argument with respect to this type of exhibit
9 generally -- that is, the fatwah to which Bin Laden was a
10 signatory -- in your June 11 order and ruled that there was not
11 undue prejudice. The fact that the original Arabic newspaper
12 article includes a photograph of Bin Laden doesn't change the
13 prejudice calculus.
14 There are going to be references to Bin Laden in this
15 case and, indeed, later in the case there will be telephone
16 calls that relate to the conference that was broadcast on
17 Al-Jazeera in September of 2000, which was a conference of Bin
18 Laden, Taha, Al-Zawahiri, in which they talked about waging
19 jihad to free Abdel Rahman. And that conference, broadcast on
20 Al-Jazeera, is referenced in a series of telephone calls.
21 Mr. Sattar is watching it on television as the calls
22 demonstrate. And so the government's evidence at that part of
23 the case will include the video of the conference and obviously
24 the video of the conference will depict Bin Laden.
25 So your Honor has already addressed the 403 issues
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1 relating to the fact that Bin Laden essentially makes an
2 appearance in this case in these limited contexts and in light
3 of the fact that one of those limited contexts is in fact a
4 video that depicts Bin Laden, we respectfully submit that the
5 fact that this newspaper article includes a photograph of Bin
6 Laden doesn't change the prejudice calculus here.
7 But to get specifically to the contents of the article
8 and how they relate to the telephone call, which is already in
9 evidence and was already read as reflected in the excerpted
10 transcript, which is Government Exhibit 1002X.
11 (Continued on next page)
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1 (In open court; jury not present)
2 (Continuing argument)
3 MS. BAKER: 1002X, or the call reflected in that, is a
4 three-way call in which Sattar and Taha begin speaking to each
5 other, as reflected on Page 1 of Government Exhibit 1002X. And
6 then Sattar conferences in Montasser Al-Zayyat. The first
7 relevant part of the conversation is at Pages 19 to 20 of
8 Government Exhibit 1002X. And it's important that the Court
9 know exactly what this portion of the transcript says, so I'm
10 going to just briefly read from the transcript.
11 THE COURT: It would have been helpful before now to
12 have reference to the transcript.
13 MS. BAKER: I understood you had a hard copy. It
14 should be on your screen right now, Judge.
15 MR. TIGAR: You can borrow ours.
16 MS. BAKER: I apologize, your Honor. You don't have a
17 hard copy?
18 THE COURT: It's a request I made yesterday.
19 MS. BAKER: I'll hand up a hard copy, and also, it's
20 on the screen.
21 The relevant portion starts at Page 15, on Line 19, at
22 which Taha says: There was an interview with me that was
23 published in Al-Quds newspaper dated August 15, Page 3.
24 Al-Zayyat: Ah.
25 Taha: August 15, '98.
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1 Al-Zayyat: Yeah.
2 Taha: Page 3.
3 Al-Zayyat: We haven't seen that one.
4 Taha: Okay. Try to get that issue, please. It's
5 dated August 15, '98.
6 And turning now to Page 20.
7 MR. MORVILLO: May I hand up a hard copy of the
8 transcript?
9 THE COURT: Fine. What page?
10 MS. BAKER: 20.
11 Al-Zayyat: August.
12 Taha: Hah?
13 Al-Zayyat: Okay. I'll try to get it from Cairo
14 office or retrieve it from the, eh...
15 And then Sattar, who has been listening all along,
16 chimes in at that point, which indicates he's been specifically
17 following this conversation. He chimes in by saying: From the
18 Internet.
19 Taha: Ah, issue dated 15 and 16.
20 Al-Zayyat: Okay.
21 Taha: Which is Saturday's and Sunday's weekly issues,
22 Page 3.
23 Al-Zayyat: Was it published in two issues?
24 Taha: No, no.
25 Sattar -- again, Sattar chiming in, simultaneously:
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1 It's one issue.
2 Taha: It's one issue.
3 Sattar: It's one issue for Saturday and Sunday.
4 Al-Zayyat: Perfect.
5 Taha: Eh, eh, I want you to read this interview. I
6 also want the brothers inside to get it alongside with or
7 without the book.
8 Al-Zayyat: Ah.
9 Taha: And they are to be told that this is our way of
10 media coverage of issues.
11 So that portion of 1002 is significant for two
12 reasons. First is Taha adopting the article. And, as I'll get
13 to in a moment, when I start proffering some of what's in the
14 article, portions of the article are an interview of Taha,
15 explicitly presented as such. But then there's also some other
16 text which is background to why the interview is occurring and
17 some of the issues in the interview.
18 But the government submits that by virtue of that
19 portion of 1002X, Taha is essentially adopting the article in
20 its entirety as his statement and his -- a demonstration of his
21 way that the Islamic Group, in his view, should be dealing with
22 the media on the various issues that it is in the process of
23 addressing.
24 Now, to turn to a portion of the translation of the
25 article itself, a portion of the translation that is marked as
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1 Government Exhibit 508-T2. That portion of the translation is
2 the translation of the fatwa itself. And if your Honor looks
3 at that portion of the translation, you'll see that the fatwa
4 is entitled: Text of World Islamic Front's statement urging
5 jihad against Jews and crusaders, so the substance of the fatwa
6 is there is or should be the formation of this united front, so
7 that the key reference there is the term "Front".
8 By the way, in the text of the article itself, it does
9 make clear, 508-T, Page 2, the article makes clear that the
10 fatwa for the formation of the Front was initially issued in
11 February, February of 1998, so the existence of the fatwa and
12 the Front have been around for approximately six months at the
13 time of this article that we are offering, 508; and has been
14 around for about 10 months, almost 10 months, at the time of
15 the telephone call, Government Exhibit 1002.
16 And some of the rest of the conversation in 1002
17 examine, which I'll turn to right now -- indicates that Sattar
18 was familiar with the fatwa and the Front event, if he had not
19 yet read this specific article that Taha was urging that he
20 adopt and read.
21 So if you would turn to 1002X, Page 23, you will see
22 the discussion relating to the fatwa, specifically to the Front
23 created in the fatwa, continues with Sattar saying, at Lines 8
24 to 10: Among the things I want to say is, your statement that
25 came on the Internet, [stuttering] that we, eh, that the group
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1 is not a part of the Front and so forth.
2 And then they continue down. And then at the bottom
3 of Page 23, Lines 20 to 23, Sattar says: Okay, this is
4 [stuttering] the way they think here. They didn't name....
5 Even when they talk about the Front, which is, the Front for
6 fight against Jews and Christians --
7 Let me pause to say that's his paraphrasing or a
8 slightly different translation of the title of the fatwa
9 itself.
10 And then, continuing with the transcript of the call:
11 Eh, they mean al Qaeda, the jihad, a Pakistani group and a
12 group of Bangladesh.
13 Now, it appears that what Sattar is referring to in
14 that portion of the call is what was alleged in the embassy
15 bombing indictment that had been handed down in this district.
16 And that that indictment made a certain reference to this front
17 established by this fatwa. And Sattar is, in this sentence,
18 making the point that when the embassy bombing indictment
19 talked about the fatwa, the embassy bombing indictment did not
20 specify that the Islamic Group was a part of the Front created
21 by the fatwa.
22 Now, that assertion by Sattar of the embassy bombing
23 indictment is the same point that Mr. Tigar was just making,
24 that there's reason to believe that the Islamic Group as a
25 whole, the Group, was not part of the Front formed by the
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1 fatwa. The government respectfully submits that that point is
2 irrelevant to this admissibility determination and to the
3 government's theories in this case. The government's case, the
4 charges in this indictment that is on trial here now, is not
5 about the Islamic Group as a whole. The Islamic Group is
6 relevant because of its activities in the past, its history,
7 but at the time of the events at issue in this trial, the
8 Islamic Group has become factionalized: It's not functioning
9 as a united whole. There's the Taha faction and there's the
10 other faction. And what's become clear in this case is that
11 Sattar is on the side of the Taha faction, and so the relevance
12 here is that Taha individually signed on to this fatwa,
13 creating this front. And the fact that the Islamic Group as a
14 whole refused to do so and that Taha later stated publicly that
15 the group as a whole was refusing to do so, is -- I mean, it
16 may be relevant, that may be evidence that the defense seeks to
17 advance, but that doesn't defeat the relevance or admissibility
18 of this evidence because Taha himself is the coconspirator in
19 the Count 2 conspiracy to kill and kidnap.
20 And Taha himself is a participant in the solicitation
21 to violence in Count 3. He's also a coconspirator in Count 1.
22 But for this evidence, the relevance is Counts 2 and 3.
23 And so, because Taha is a participant in that
24 activity, the fact that he, individually, not the Group as a
25 whole, is the signatory to this fatwa creating this front, is
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1 the relevant point for purposes of determining admissibility,
2 weighing the 403 issues and so on.
3 Just to provide the Court a little more information,
4 again on Page 25 of Government Exhibit 1002X, they continue
5 discussing this fatwa. On Page 25 is Al-Zayyat referring to
6 it. And then on Page 26 it's referred to again, I believe by
7 Taha himself.
8 So the government submits that in light of Taha's
9 express adoption of this article, which is marked as 508, in
10 the call 1002, of its transcript 1002X, and in light of
11 Sattar's obvious familiarity with the fatwa and the Front as
12 reflected in the content of the call, and the fact that Sattar
13 chimes in right at that point in the conversation when this
14 article is referenced, that he's either seen the article or he
15 has essentially been tasked by Taha to go see the article, the
16 government therefore respectfully submits that therefore the
17 article should be received in its entirety against Sattar as
18 relevant evidence on Counts 2 and 3, adopted statements by Taha
19 in furtherance of the Count 2 conspiracy.
20 Now, the government initially sought to introduce just
21 the text of the main article itself, which includes the
22 explicit interviews of Taha portions. And that main portion of
23 the article is reflected in the translation marked as 508-T.
24 Plus the government seeks the text of the fatwa
25 itself, which is set forth, translated, in 508-T2.
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1 And if I might just display for your Honor for a
2 moment the way the government intends to present the original
3 508. It's a full-size copy of the page of the newspaper. The
4 main article -- the beginning of it is indicated by this flag
5 with the Number 1 in the upper right hand corner of the
6 document, because Arabic reads from right to left. So the text
7 of the main article is all set forth, basically spread around
8 the whole two-page -- or the whole one large page. And then
9 there are three separate pieces, additional pieces, each of
10 which is set forth in a box. The box at the bottom of the page
11 flagged with the flag marked Number 2 is the text of the fatwa.
12 And this is the translation marked as 508-T2.
13 In the middle of the page are two additional boxes
14 each of which has a photograph and some text underneath it.
15 The government was not originally seeking to offer a
16 translation of that text, but it's our understanding that
17 Mr. Sattar requests that translations of that text be included
18 as well, so now the translations of those two pieces of text
19 are set forth in 508-T3 and 508-T4. And each of these sections
20 of the exhibit has been flagged with a 3 and a 4 to show the
21 corresponding parts.
22 And just to be clear, the government obtained this
23 exhibit from the publisher of Al-Quds. The handwriting at the
24 top of the page when it says, 15 August 1998, that was written
25 on there by somebody who was involved with sending it to us.
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1 But it also does say, printed -- in the upper right hand corner
2 in Arabic, it indicates -- sorry, in a mixture of Arabic and
3 regular numerals, it says at one point, 15/16 1998, and then at
4 the bottom of the page it is printed, Al-Quds Al-Arabi,
5 Volume 10, issued 2881, Saturday/Sunday, 15/16, August, 1998.
6 And in the call, Taha does specifically indicate that
7 it was Page 3 of that particular issue of the newspaper. And
8 the upper left-hand corner of the original exhibit does reflect
9 that it's Page 3.
10 MR. RUHNKE: By way of brief reply, your Honor, it is
11 the core of our argument that a couple of brief references to a
12 newspaper article in the course of a long, long conversation,
13 is a very thin vehicle for what the government is attempting to
14 make out of it. That Taha in the conversation cites an
15 interview as an example of how we should handle, quote, "our
16 way of media coverage of issues", close quote, and from that,
17 the government posits they can bring Osama bin Laden into this
18 case, to bring the very virulent and prejudicial, in the
19 nonlegal sense, "fatwa", which basically says that Americans
20 are to be attacked, wherever they are and wherever they may be
21 found.
22 Whatever probative value there is to the interview of
23 Taha in which he discusses the -- his views of any number of
24 things -- I think that probative value is substantially
25 outweighed by the danger of unfair prejudice. And there's also
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1 the problem of confusion of the issues under 403 because there
2 is all this almost Byzantine back-and-forth about who's part of
3 what group and who supports what group; are we in Group A or
4 Group B? Who's in the Islamic Group; who's in the Front?
5 What is the Front?
6 And a concern that we had by the number of limiting
7 instructions the Court is required to give the jury that part
8 of the danger is, to us, being Mr. Yousry and, referentially,
9 Miss Stewart, that the government will lose sight of who this
10 evidence is admitted against. And it's a case of a little bit
11 of discussion supporting an overwhelmingly prejudicial offer on
12 the government's part. It's not as if the newspaper articles
13 cited earlier were found in anyone's home. It's not as if
14 although Mr. Sattar is on the line as a listener and as a
15 participant, that the search of his home in fact uncovered this
16 article, therefore putting him on notice of what the article
17 was.
18 We think, in an overall sense, the article should not
19 be admitted; the interview should not be admitted, now that
20 your Honor has had the context and seen what this looks like,
21 in the actual presentation of the trial, so we renew our
22 objection to this article.
23 MR. TIGAR: Your Honor, may I speak briefly on behalf
24 of Miss Stewart? In addition to Mr. Ruhnke's points, which I
25 think are coherent and cogent, of course, you know the embassy
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1 bombing case did deal with this fatwa, and did not at all bring
2 in the Islamic Group. The government didn't mention the
3 Islamic Group. That wasn't their theory. They didn't do
4 anything with it. We've got lawyers that were in that case
5 here.
6 But for us, the important thing, in addition to what
7 Mr. Ruhnke says is, suppose that Mr. Taha's statement is an
8 adoption of the interview portion of the article? That's about
9 as far as that would go. Why would that be admissible against
10 anybody here?
11 We have some interest in Count 2, as the Court has
12 pointed out. So let me talk about that. It is before the
13 conspiracy charged in Count 2 began because it is a 1998
14 conversation. Moreover, Mr. Al-Zayyat was said to be a
15 conspirator. The government said that. Mr. Sattar was said to
16 be a conspirator, the government said that. But what we have
17 here is that when Mr. Taha says something, Mr. Sattar
18 contradicts him and points out that this Front that issued the
19 fatwa does not include the Islamic Group, and even goes so far
20 as to mention that the government isn't saying that.
21 And then, in the portions that I read, Mr. Al-Zayyat
22 rebukes Mr. Taha and tells him it's a bad idea to incur the
23 enmity of the United States. This is a strange conspiratorial
24 conversation when by a vote of two to one the people are saying
25 that they're not part of it and you shouldn't do it. So
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1 therefore the 801(e)(2)(E) link that the government needs to
2 have in order to make the alleged adoption -- which it already
3 overstates -- work, simply fails.
4 MS. BAKER: Your Honor, the adoption by Mr. Taha at
5 Page 19 of the transcript could not be more explicit. And
6 Sattar's chiming in references at that point indicate that he
7 has read the article. He chimes in by saying it's one issue
8 dated the 15th and 16th or Saturday and Sunday.
9 But just to turn back to the content of the article
10 itself, at Page 2 of Government Exhibit 508-T, which is the
11 translation of the main part of the article, there's an
12 explanation of the fact that the Islamic Group as a whole was
13 not part of the fatwa and the Front, but in the middle of that
14 page is the following paragraph. Asked why he signed the
15 religion ruling with Bin Laden/Al-Zawahiri, Taha said: The
16 purpose was for Muslims to unit in their confrontation against
17 the forces of tyranny and aggression that dominate Muslim
18 peoples.
19 So again, as I argued earlier, Taha himself is
20 signatory to the fatwa, is re-endorsing it here, clearly
21 believes in it, and that is its relevance here for purposes of
22 this case.
23 I want to also point to Page 5 of 508-T, just to make
24 clear that this article has a lot of relevant content. It's
25 not just a little passing reference.
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1 The third full paragraph on Page 5 of 508-T is quoting
2 Taha directly, and at that point he says the following,
3 starting in the middle of that paragraph:
4 We have declared our position toward the United
5 States. We are hostile to the United States because it is
6 hostile to the Islamic nations because it is trying to
7 subjugate them, and because Dr. Omar Abdel Rahman is still in
8 American prisons. The Egyptian and the U.S. security agencies
9 know that the Group tried to carry out operations against the
10 U.S. interests but could not succeed. We will continue our
11 hostility to the United States as long as the Americans are
12 hostile to our nations, as long as they hold our sheikh in its
13 prisons, and as long as they continue to support the Zionist
14 entity in our Palestine, in our Jerusalem.
15 Highly relevant. Makes clear that Sattar read it.
16 And for all these reasons, the government submits that it is
17 clearly relevant to Counts 2 and 3 and that the prejudice does
18 not outweigh the high probative value.
19 Your Honor, if you wish to bring the jury back in and
20 not rule on this now -- we had another speech that we could
21 turn to. I didn't realize that this was taking so long to
22 address this issue. We started on what was supposed to be a
23 break.
24 THE COURT: Right. But we'll take three minutes. I'm
25 plainly not going to rule on it now, in any event. And I'll
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1 give you a couple of observations at the end of the morning and
2 give you the opportunity to give me anything further that you
3 want on this.
4 Okay. We'll just take three minutes so that you can
5 have a break
6 (Recess)
7 (In open court; jury not present).
8 THE COURT: Okay, let's bring in the jury.
9 (Continued on next page)
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1 (Jury entering)
2 THE COURT: Please be seated, all.
3 Ladies and gentlemen, as I've told you, we'll be
4 breaking at 12:15 today. Our break took longer because again I
5 was dealing with some legal issues that have nothing to do with
6 any of your -- the issues you will decide. And so I appreciate
7 your indulgence on it.
8 MR. MORVILLO: Your Honor, at this time the government
9 would request permission to read to the jury Government Exhibit
10 2077-T, which is in evidence.
11 THE COURT: Ladies and gentlemen, I've given you a
12 limiting instruction regarding this exhibit, and I ask you to
13 follow that instruction.
14 MR. MORVILLO: Your Honor, this will take up the
15 approximately 15 minutes we have left.
16 THE COURT: Yes, go ahead.
17 MR. MORVILLO: May I proceed, your Honor?
18 THE COURT: Yes.
19 (At this point, Government Exhibit 2077-T, in
20 evidence, was displayed and read to the jury)
21 THE COURT: This is a convenient time to break.
22 Ladies and gentlemen, we'll break for the day, and we'll resume
23 on Monday morning at 9:30. Please remember my continuing
24 instructions: Please don't look at or listen to anything to do
25 with the case. Keep an open mind until you have heard all the
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1 evidence, I have instructed you on the law, and you have gone
2 to the jury room to begin your deliberations. Please don't
3 talk about the case or anything having to do with it.
4 Have a good weekend. I look forward to seeing you
5 Monday. All rise. Follow Mr. Fletcher to the jury room.
6 (Jury exits the courtroom)
7 (In open court; jury not present)
8 THE COURT: Please be seated, all. The -- I'll view
9 the articles and I'll consider the transcript. Is there
10 anything else that the parties wanted to tell me on this?
11 Ms. Baker?
12 MS. BAKER: Two things very briefly, your Honor.
13 First, obviously, as your Honor is aware, at Page 10 of your
14 June 11, 2004 order, you previously found that the high
15 probative value of fatwa is not substantially outweighed by the
16 danger of unfair prejudice to any of the defendants, and so the
17 government's argument today was essentially that your Honor
18 should adhere to that prior ruling, and that nothing about the
19 nature of the article in which the fatwa is here referenced and
20 incorporated in any way changes that prior ruling.
21 The other thing is, I'm not able to say as I stand
22 here right now which, if any, other intercepted telephone calls
23 that we are presenting may include references to the fatwa or
24 Front, so I just would request the opportunity -- we will
25 search the transcripts of the calls and advise your Honor later
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1 this afternoon which other ones may reference --
2 THE COURT: The motion in limine refers to telephone
3 calls.
4 MS. BAKER: Yes, and we will advise your Honor of
5 which other calls.
6 THE COURT: All right. There are -- the parties can
7 give me, if they wish -- I'm not requiring this -- anything
8 else that they want to address by today at 5:00 o'clock. Is
9 that reasonable? I don't want to place burdens on you that --
10 you know, I don't want to -- if you say, you know, we've
11 explained our position to you, that's fine. And then if
12 there's any response, it would be by 10:00 a.m. tomorrow.
13 The arguments today, it seems to me, raise a couple of
14 additional issues. And they may or may not be additional; I
15 just raise them for you. Part of the argument by the counsel
16 for Mr. Yousry and Ms. Stewart was that the article actually
17 goes beyond what could be viewed as adopted by Taha. Taha
18 says, Read my interview. That's a way of -- that we get the
19 message to read. And so Taha is quoted in the article which is
20 referred to. And his interview also discusses the fatwa
21 itself. The article seems to go somewhat beyond that with, for
22 example, the information with respect to the embassy bombings,
23 which is not referred to as I saw it in the transcript.
24 (Continued on next page)
25
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1 Now, some of the background may be sought as context
2 or 106 completeness, particularly by Mr. Sattar, but I haven't
3 heard that other than the government's representation that
4 Mr. Sattar wanted the two boxes in the article. So I point
5 that out to you.
6 Second, as I have repeatedly said, it's very important
7 to define what this is being offered for and what the area of
8 admissibility is, whether it's being offered for state of mind
9 or intent, which are in and of themselves exceptions to the
10 hearsay rule.
11 I gave in my motion in limine one limiting
12 instruction, which I said I would give with respect to this
13 evidence. That was without the benefit of the specific
14 evidence that was being sought to be admitted.
15 Counsel for Ms. Stewart raised the issue of whether
16 this could be admitted under 801(d)(2)(e). I didn't hear that
17 the government was seeking to admit this under 801(d)(2)(e). I
18 just didn't hear what the response was. Whether it's being
19 offered for the truth, whether it's an exception to the hearsay
20 rule, or whether it's being offered as not hearsay under
21 801(d)(2)(e), or whether it is not only not being offered
22 against Ms. Stewart, who made that objection, but that the jury
23 should not consider it for its truth against that objecting
24 defendant.
25 So you can look at the proposed limiting -- the
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1 government can respond on that issue and the parties can look
2 at what I have already said would be a limiting instruction
3 with respect to this evidence and determine whether any other
4 limiting instruction, if any, should be given if I decide that
5 the evidence would come in.
6 There is another issue which is out there, which in
7 deciding the motion in limine I went through the issues. I
8 went through the 403 analysis and that 403 analysis still is
9 quite applicable to to the issues that I dealt with and
10 considered at some length in the motion in limine. It is
11 possible, as I said, that there could be specific redactions to
12 the article if there are specific issues. For example, there
13 are photographs in the article which are not essential to the
14 article. There is the discussion of the embassy bombings,
15 which I don't see in the telephone transcript being discussed
16 and which, as I said, raises a different issue.
17 And if there were to be -- and I am not saying that
18 there have to be, because I want to see what the parties'
19 positions are -- if there were redactions from the article,
20 then the issue would be whether the article itself with plain
21 redactions goes in or, rather, whether some stipulated excerpt
22 from the article goes in. But I couldn't, I don't think,
23 simply admit the excerpt from the article without some
24 stipulation.
25 So those were the additional questions in my mind that
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1 were raised by the arguments of the parties.
2 Okay?
3 Both sides can submit anything they want, all sides,
4 by 5 o'clock, and you can respond, everyone else, by 10 o'clock
5 tomorrow morning.
6 Anything else?
7 Good afternoon, all.
8 MR. BARKOW: Your Honor, what time should we be here
9 on Monday?
10 THE COURT: Oh, I will try to get to this over the
11 weekend, but is there any reason why this issue has to be
12 decided by first thing Monday morning?
13 MR. MORVILLO: I don't believe so, your Honor. We
14 intend to present some witnesses on Monday that we would be
15 able to move past this.
16 THE COURT: And there are all of these other
17 transcripts which I thought were being read in chronological
18 fashion.
19 MR. MORVILLO: They are, your Honor. But of course
20 this article fits in with what we have already read and to the
21 extent we can avoid having to double back too far, we would
22 like to read it as close to the reading of the transcript as
23 possible. But having said we are already about a year past it.
24 THE COURT: I thought so.
25 MS. BAKER: Just to be clear, your Honor, our plan is
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1 to go chronologically. We already need to double back a little
2 bit because we have a second DVD with additional calls that we
3 will be seeking to introduce on Monday. Some of those calls
4 are earlier than where we are now in the chronology but we
5 didn't have a choice because we didn't have that disk in
6 evidence yet, which we hope we will on Monday.
7 So our intention at this point is before continuing
8 further forward in the chronology to double back and pick up
9 some of the things that we skipped over, which would include
10 some earlier calls as well as this article. But on Monday we
11 will take a break from the chronological move forward to
12 present some witnesses.
13 THE COURT: Okay.
14 MR. TIGAR: That will be Agent Kerns?
15 MS. BAKER: Agent Kerns is one of the witnesses who
16 will testify on Monday.
17 MR. TIGAR: We will look forward to receiving the
18 names and Jencks material of the witnesses that will be
19 attending.
20 THE COURT: I think you should all be here by 9
21 o'clock Monday. All right.
22 I can't tell you that I will have resolved all of your
23 issues on these exhibits, but I think 9 o'clock is the more
24 prudent time for you to be here on Monday. Okay.
25 (Trial adjourned to July 19, 2004 at 9 a.m.)
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1 GOVERNMENT EXHIBITS
2 Exhibit No. Received
3 2086T . . . . . . . . . . . . . . . . . . . 3761
4 2040, 2040T, 2077, 2077T, 2079, 2079T . . . . 3761
5 o 0 o
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