20 July 2004
Source: Digital file from Southern District Reporters Office; (212) 805-0300.
This is the transcript of Day 24 of the proceeding and Day 15 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 19, 2004
10 9:15 a.m.
11
11 Before:
12
12 HON. JOHN G. KOELTL
13
13 District Judge
14
15
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25
SOUTHERN DISTRICT REPORTERS, P.C.
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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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SOUTHERN DISTRICT REPORTERS, P.C.
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1 (Trial resumed)
2 (In open court; jury not present)
3 THE COURT: Good morning all. Please be seated.
4 I received this morning a letter from Ms.
5 Shellow-Lavine raising some issues with respect to the prison
6 visits. I haven't had an opportunity to review the letter
7 and -- it's from Mr. Tigar. And the final line is that we are
8 corresponding with the government about the way in which the
9 admissibility proceeding should be handled and the parties
10 should let me know if there is something that I have to decide
11 on that and, if so, when. Plainly if there is an issue I
12 should decide it and have whatever information I need in
13 advance.
14 MS. BAKER: Judge, I just received these letters a few
15 minutes ago, both the letter that is addressed to your Honor
16 and also a letter addressed to us, the U.S. Attorney's Office.
17 I haven't had time to digest the entire letter to your Honor
18 but I did want to address two portions of it. I know that your
19 Honor still needs to read it as well, but I think it would help
20 your Honor to have this in mind in reading it.
21 The front page of it includes four bullet-pointed
22 items. The second bullet-pointed item on the first page asks
23 for production of all parts of the February 2000 recordings,
24 including those redacted or minimized for any purpose by any
25 person or entity, including the FISA court.
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1 I will represent to the court, as I advised Ms.
2 Shellow-Lavine earlier this morning when I received the letter,
3 that throughout the course of this case on several different
4 occasions the defense attorneys have been provided with various
5 forms of recordings of the prison visits. Early in the case it
6 was on VHS tape. Later in the case it was on DVD, but repeated
7 sets of recordings produced by our wall team, specifically the
8 correspondence would have been from AUSA Gary Stein or from
9 AUSA Carl Metzner or from paralegal Jaleen Orange. Any
10 recordings that came from the wall team, specifically including
11 recordings of the February 2000 prison visit, were completely
12 complete, meaning nothing had been minimized out. Nothing had
13 been redacted out from those recordings that came by way of the
14 wall team. So that second bullet point item in this letter is
15 already addressed. The defense has had those recordings for a
16 very long time.
17 The third bullet point item in the letter asserts a
18 belief on the part of defendant Stewart that the FBI agents
19 exceeded the scope of the FISA warrant and therefore concludes
20 with a request for the FISA warrant application and FISA court
21 order. I just wanted to remind the court for the record of a
22 fact that the court is already well aware of, which is in
23 response to the defendants' pretrial motion to suppress the
24 FISA evidence, the court specifically reviewed the way the FISA
25 surveillance had been carried out and the court specifically
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1 found in denying that motion to suppress that the FISA
2 surveillance in this case, including the surveillance of the
3 prison visits, was not only lawfully authorized by the FISA
4 court but also lawfully conducted by the FBI, which means that
5 the court has already found that the FBI agents did not in fact
6 exceed the scope of the FISA warrant and the court already
7 specifically denied a defense request for the FISA applications
8 and orders and the government respectfully submits that there
9 is nothing new in the record, no reason for the court to
10 revisit those issues that were previously decided.
11 Now, turning to the defense letter addressed to the
12 government, and what, if any, issues that creates that might
13 require intervention by the court, unfortunately we may already
14 be at the point of needing the court's intervention. The
15 letter, which is addressed to my office, states in pertinent
16 part that the Jencks material that we provided as to a certain
17 witness "Leads us to seek a hearing on what was recorded, what
18 was redacted, and how the redactions were done.
19 "Second, the hearing would deal with the various
20 techniques to record, edit, alter, copy, and otherwise deal
21 with this material.
22 "Third, we will be wanting to know what technology
23 exists to alter this type of data.
24 "Fourth, we will want to know the extent, if any, to
25 which digital technology was used."
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1 THE COURT: Okay. Hold on.
2 You say that already we are at the point where you
3 need court intervention. The letter is a letter from defense
4 counsel to the government and says that defense counsel either
5 seeks a hearing, and I can't recall the specific way in which
6 it said seeks a hearing, may seek a hearing. So far I don't
7 have a letter from the defendants asking to seek a hearing.
8 It's reminiscent to me of on the other side when
9 shortly before trial, if memory serves me right, there was a
10 letter from defense counsel with respect to the court with
11 respect to transcript issues and the prior letter by the
12 government had said we are willing to talk about these issues
13 and as soon as the defendants got that letter, I got the file
14 of correspondence back and forth and said it would be helpful
15 for your Honor to decide these four issues. Well, it turned
16 out it was not necessary because the parties constructively
17 worked it out.
18 Whether the defendants do seek a hearing or whether
19 the issues can be resolved between you, I don't know. So far
20 the defendants haven't sought it before me and, yes, the issues
21 have to be looked at promptly if these witnesses are going to
22 testify this week and there is something that is being sought
23 before the witnesses testify. But right now I don't have that
24 request. I suggest that at least the parties talk about it and
25 then I need a request.
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1 MS. BAKER: Your Honor, I am not really sure what the
2 parties would talk about. The government is prepared to call
3 before the jury, which we believe is the appropriate approach,
4 the witnesses who will authenticate the original recordings and
5 a witness who will explain how redacted recordings, redacted
6 copies of the recordings, were made, and that is the approach
7 that the government submits is appropriate under the
8 circumstances.
9 We don't expect, based on everything that has happened
10 to date, that there would be any stipulation to replace the
11 testimony of those witnesses. Therefore, we decline to provide
12 free advance rehearsal for the cross examination of the
13 witnesses. We believe that we should simply be permitted to
14 present their testimony in front of the jury. So if nothing
15 else I would ask the court to accept my statements here as the
16 government's declination to consent to the defense request for
17 a hearing out of the presence of the jury. We don't believe
18 that that is necessary or appropriate.
19 THE COURT: Okay.
20 Mr. Tigar.
21 MR. TIGAR: If your Honor please, the letter in
22 question was sent to Mr. Dember, who has just arrived, in
23 answer to a letter that Mr. Dember sent to me. I would be
24 pleased that the purpose of my letter was to have a discussion
25 with Mr. Dember about suggestions I made. I look forward to
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1 that, your Honor.
2 THE COURT: Okay.
3 MR. TIGAR: Now, with respect to my letter, it is my
4 understanding that the government -- that the FBI in addition
5 to recording at the prison did some other recordings in
6 Minneapolis that were not authorized by the FISA court. That
7 is my understanding. I don't want to invade anyone's privacy
8 by anything we do here. That is not my intention. But if that
9 happened, then we have not received the results of it or even a
10 statement as to what happened and when it happened. If it
11 happened that would bring us to the point of wanting to see
12 everything that was done in that surveillance which had an
13 unitary purpose so that we could exercise our rights.
14 If it happened, and if the recording was done without
15 FISA court authorization, then the fact that recordings took
16 place on that visit without court authorization would represent
17 the violation of the act elements of two federal criminal
18 statutes, passing the question of intent. That is the purpose
19 of my letter.
20 Nothing that Ms. Baker says addresses that. It is a
21 serious matter. How it should be addressed, it seems to me, as
22 well as the other issues here, which are quite independent of
23 that, is something as to which if the government has a position
24 I think perhaps they could send a letter or we could take time,
25 because it's not an immediate issue, when we could address it.
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1 But that is the state of play, your Honor, with
2 respect to this request.
3 THE COURT: All right.
4 Let me take care of the other issues.
5 Coming in this morning I saw some jurors from a
6 distance in the corridor and I followed my own instructions to
7 just walk away, so I take it they won't consider that, if they
8 saw me with my clerk, a sign of impoliteness.
9 I got a letter -- not a letter, I was advised by the
10 District Executive that we have a request by an instructor at
11 the Columbia University, American Legal Language Program, to
12 have for class of 30 students observe the trial on July 26th,
13 2004. I bring that to your attention. There is room. No
14 special arrangements have to be made and I intend to tell the
15 representative of the District Executive that it's all right.
16 The courtroom is an open place. It's not as though any special
17 arrangements or anything has to be made, but I just bring that
18 to your attention.
19 Second, I had correspondence on Government Exhibits
20 2757T and 2757. The government objects to my proposed
21 instruction in a letter dated July 16. The instruction that I
22 said I would give was these documents are not admitted for the
23 truth of anything that is said in these statements and you may
24 not consider them for the truth of what is there. And my
25 recollection is that the defendants agreed to that instruction
SOUTHERN DISTRICT REPORTERS, P.C.
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1 and the government objected. And the government submitted a
2 letter explaining why the statements had no truthful content in
3 any event.
4 Is that correct?
5 MR. BARKOW: Yes, your Honor.
6 THE COURT: Mr. Ruhnke.
7 MR. RUHNKE: Yes, your Honor.
8 THE COURT: I am prepared to rule on that.
9 All right.
10 I continue to find that the instruction is correct,
11 that the exhibits are not admitted for the truth of anything
12 that is said. The defendants disagree with that instruction.
13 The defendants do not disagree with that instruction. The
14 government asks me to reconsider it.
15 The government argues that threats are not hearsay
16 because in the words of Stratton, they are not "offered for
17 their truth. The threats are verbal acts." United States
18 against Stratton, 779 F.2d 820, 830 (2d Cir. 1985). The
19 government argues that the statements have no content that the
20 jury could mistake for their truth and that therefore no such
21 instruction is warranted.
22 The government suggests an alternative instruction
23 that indicates the various uses of the statements. But if, as
24 explained in Stratton, threats are not offered for their truth,
25 there is no prejudice to the government from telling the jury
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1 exactly that. Moreover, there are other parts of the
2 statements that discuss such things as prison conditions which
3 are also plainly not being offered for their truth. A simple
4 instruction that the statements are not offered for their truth
5 accurately describes the limitation on the use of these
6 statements.
7 MR. BARKOW: Your Honor, I didn't mean to cut the
8 court off if the court was still ruling.
9 THE COURT: No, I am finished.
10 MR. BARKOW: Since the court is going to give that
11 instruction, we would just ask, and I don't know if the exact
12 contours of the instruction were set out yet, but we would ask
13 the court do include the language of the matters asserted or of
14 the matters asserted therein in the court's instruction to
15 track the actual rule, which we think might lessen the
16 confusion that we were speaking about in our letter.
17 THE COURT: I have no problem saying "not offered for
18 the truth of the matters asserted."
19 Mr. Ruhnke?
20 MR. RUHNKE: That is acceptable, your Honor.
21 THE COURT: Next is the newspaper clippings and
22 Exhibit 2031. The newspaper clippings are 2004, 2005, 2006 and
23 2007. I have read the correspondence.
24 Anyone else want to be heard?
25 No? All right.
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1 And 2031, which are contained in the same
2 correspondence.
3 With respect to the newspaper clippings, the parties
4 agree to the admissibility of Government Exhibits 2002 and
5 2003. The government also asks the court to overrule the
6 objections by Ms. Stewart and Mr. Yousry and to admit
7 Government Exhibits 2004, 2005, 2006 and 2007, or at the very
8 least to allow redacted versions of 2004, 2005 and 2007.
9 I reviewed the exhibits. I will sustain the
10 objection. The asserted relevance of the articles is to show
11 Mr. Sattar's state of mind in that he was aware of convictions,
12 but that is plain from Government Exhibit 2003, which was
13 contained in his file. It is also established from the tapes
14 that have already been admitted in evidence in which Mr. Sattar
15 discusses the conviction and the issues raised and the appeal.
16 The danger of unfair prejudice is that the articles
17 unnecessarily attempt to trade on the use of terms such as
18 "terror trial." The articles are also cumulative of the facts
19 of which the court took judicial notice and the articles which
20 are admitted without objection.
21 The government responds that the fact that Mr. Sattar
22 clipped several additional articles is relevant to his state of
23 mind and thus the three additional articles are not cumulative.
24 Whatever slight relevance this fact has -- and it is difficult
25 to afford it much weight -- is outweighed by the danger of
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1 unfair prejudice and waste of time. I leave open the one
2 possibility that the list in Government Exhibit 2005 of the
3 other defendants who were convicted may have relevance to
4 Mr. Sattar's state of mind but that would have to be
5 demonstrated in a far more specific proffer than it has thus
6 far been made. Thus, I will sustain the objections to
7 Government Exhibits 2004, 2005, 2006 and 2007.
8 With respect to Government Exhibit 2031, the exhibit
9 is in evidence subject to limiting instructions. The
10 government seeks to read Government Exhibit 2031 up to and
11 including the "terms explained." Those are several portions
12 of the book and may be read. Of course, any of the defendants
13 may seek to read other portions in their own case if they
14 choose to do so. Obviously the defendants have no obligation,
15 requirement, at all to introduce anything or to present any
16 case.
17 I have also reviewed 508 redacted. I reviewed the 508
18 series and I would be prepared to rule on the 508 series also.
19 Anyone want to be heard on that?
20 MR. RUHNKE: No, thank you, your Honor.
21 THE COURT: I have considered all of the arguments of
22 the parties relating to the 508 series of documents. For the
23 reasons already explained in granting the government's motion
24 in limine with respect to the admissibility of the fatwah, this
25 evidence is highly relevant and the 403 considerations do not
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1 indicate that the fatwah should be excluded.
2 The same considerations apply to the admissibility of
3 the report of the interview with Mr. Taha. It is highly
4 relevant on the same issues and the relevance is not outweighed
5 by any danger of unfair prejudice. As the court explained, and
6 is now confirmed by the exhibit themselves, the evidence is not
7 unduly graphic and the references to Osama Bin Laden do not
8 render the evidence unfairly prejudicial. Moreover, unlike
9 other evidence relevant to Count 2, the government consented to
10 a limiting instruction that this evidence is "admitted only
11 against defendant Sattar," and with respect to this evidence
12 cannot be considered against defendants Stewart or Yousry.
13 The transcript of Government Exhibit 1002X
14 sufficiently authenticates the fatwah published in the August
15 15, 1998 Al-Quds newspaper as the fatwah Taha signed and Taha
16 adopted the interview with him and recommended it for
17 distribution and Sattar, similarly, acknowledged the article.
18 See generally Wagstaff v. Protected of Harold Corp. of America,
19 760 F.2d 1074, 1078 (10th Cir. 1985); In Re Columbia Securities
20 Litigation, 15 FRD 466, 478 (S.D.N.Y. 1994).
21 Sattar expressed his familiarity with the article and
22 thus it and the fatwah would be admissible for his state of
23 mind and intent. The fatwah itself is a threat and would be
24 admitted as a verbal act and not for its truth. See United
25 States against Stratton, 779 F.2d 820, 830 (2d Cir. 1985).
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1 While it is true that the interview itself reflects some
2 statements about Taha's intent and state of mind, which are not
3 hearsay under 803(3), this would include such statements as "we
4 will continue our hostility to the United States so long as the
5 Americans are hostile to our nation and as long as they hold
6 our sheikh in its prisons and as long as they continue to
7 support the Zionist entity in our Palestine, in our Jerusalem."
8 The interview also contains statements that go beyond
9 Taha's state of mind to describe what the Islamic Group has
10 done and how the Egyptian government responded. These
11 statements if offered for their truth could be admissible, as
12 the government proffers, against Mr. Sattar alone as statements
13 of a co-conspirator during and in furtherance of a conspiracy
14 of which Sattar and Taha were members. See United States
15 against Tracy, 12 F.3d 1186, 1199 (2d Cir. 1993); United States
16 against Geaney, 417 F.2d 1116, 1120 (2d Cir. 1969).
17 The fact that the statements were made before the
18 Count 2 conspiracy charged in the indictment would not prevent
19 their admission as co-conspirator statements so long as the
20 government eventually shows under Tracy and Geaney that the
21 requirements of a co-conspirator statement in accordance with
22 Rule 801(d)(2)(g) are satisfied. See also Stratton, 779 F.2d
23 at 829. The appropriate instruction for this evidence is "I
24 will take it subject to connection, which means you can
25 consider the evidence unless I subsequently instruct you to
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1 disregard it."
2 Therefore, the appropriate instructions for this
3 evidence is as follows:
4 Government Exhibit 508 redacted, 508T redacted, 508T2
5 unredacted, and 508 T3 redacted, are admitted in evidence. You
6 will note that certain portions of Government Exhibits 508,
7 508T and 508T3 have been redacted. That simply means that
8 parts have been taken out or blacked out or removed. That is
9 done for legal reasons that do not affect your consideration
10 and you should not be concerned about that. These exhibits are
11 admitted only against Mr. Sattar and not against Ms. Stewart or
12 Mr. Yousry and you cannot consider those exhibits against Ms.
13 Stewart or Mr. Yousry for any purpose.
14 With respect to Mr. Sattar, the exhibits are admitted
15 only as to Counts 2 and 3 and you may assign to these exhibits
16 whatever weight you consider appropriate in your consideration
17 of Counts 2 and 3. However, I instruct you that Exhibit 508T
18 is received subject to connection with respect to the truth of
19 any matter asserted in it. That means you can consider the
20 article for the truth of any statements made in the article
21 unless at some point I instruct you to disregard them.
22 Finally, I have reviewed the redactions. The
23 redactions are appropriate. The article itself should be
24 redacted by taking out the photograph of Bin Laden. The text
25 does not have to be redacted because it is not otherwise
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1 readable, unless I hear an objection that suggests that the
2 remainder of the article should be redacted to conform to the
3 redacted transcript.
4 The translation of 508T should be redacted as
5 indicated except the following redactions should also be added
6 or redacted: In addition to the redactions already in the
7 article, on page 2, the first two full paragraphs, should be
8 redacted beginning with "the signing" and ending with "from
9 different Arab countries." And the sixth full paragraph on
10 page 2 should also be redacted beginning with "the sources" and
11 ending with "collective leadership."
12 Are we ready to bring in the jury?
13 MR. BARKOW: I wanted to let the court know that what
14 we were going to do was start by finishing the speech that was
15 being read at the end of the day and then there is one more
16 that I think was admitted yesterday or, rather, Thursday. We
17 were going to read that.
18 At the end of that point I was going to offer into
19 evidence a series of Sattar search exhibits that are not
20 objected to and I didn't know if the court wanted me to list
21 those now just so the court and the parties are aware of which
22 ones I am going to be listing, or I can just do it when we get
23 to that point. We are not going to publish them. We are just
24 going to offer them.
25 THE COURT: If there are no objections I will take
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1 your representation and I don't have to take a list now.
2 All right.
3 Bring in the jury.
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 Good morning, ladies and gentlemen.
7 Good to see you all.
8 All right, I believe when we left on Thursday we were
9 in the middle of a document.
10 MR. BARKOW: Your Honor, if I may, I would like to
11 publish briefly the first page of the exhibit just so the jury
12 can see the exhibit number and then pick up with page 5, with
13 the top of page 5. This is from the Sattar search evidence.
14 And it's a speech of Abdel Rahman.
15 Your Honor, if I may, if we can publish page 5. We
16 had finished page 4 on Thursday.
17 THE COURT: All right.
18 MR. BARKOW: May I proceed by reading the exhibit?
19 THE COURT: Yes.
20 (At this point the reading of Government Exhibit 2077T
21 in evidence was continued)
22 MR. BARKOW: At this point Mr. Dember, with the
23 court's permission, is going to read Government Exhibit 2079.
24 THE COURT: All right.
25 MR. DEMBER: Your Honor, may we publish Government
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1 Exhibit 2079T?
2 THE COURT: Yes.
3 Ladies and gentlemen, I gave you the instruction to
4 consider on 2077 and 2079. The exhibits are admitted only
5 against Mr. Sattar and not against Ms. Stewart or Mr. Yousry.
6 They are admitted solely with respect to the knowledge and
7 intent and state of mind of Mr. Sattar and Omar Abdel Rahman
8 and you may consider them solely for that purpose.
9 MR. DEMBER: Your Honor, this is an exhibit from the
10 Sattar search.
11 (At this point, Government Exhibit 2079T in evidence
12 was read to the jury by Mr. Dember)
13 (Continued on next page)
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15
16
17
18
19
20
21
22
23
24
25
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1 MR. BARKOW: Your Honor, at this point the government
2 would offer into evidence and seek to publish to the jury
3 government Exhibit 2031.
4 THE COURT: All right. My recollection was this was
5 subject to the limine instruction.
6 MR. BARKOW: Yes, your Honor.
7 THE COURT: That is offered solely against Mr. Sattar
8 and not against Ms. Stewart or Mr. Yousry. And it's being
9 offered only with respect to the knowledge, intent and state of
10 mind of Mr. Sattar, and you may consider it only for that
11 purpose. All right?
12 MR. BARKOW: Your Honor, may we publish it to the
13 jury, the first portion, and read it as we publish it?
14 THE COURT: All right.
15 (Government's Exhibit 2031 received in evidence)
16 (At this point, Government Exhibit 2031, in evidence,
17 was displayed and read to the jury)
18 MR. BARKOW: May I have just a moment, your Honor, to
19 confer with Miss Shellow-Lavine?
20 THE COURT: All right.
21 (Off the record)
22 MR. BARKOW: At this point, I'll just offer a series
23 of exhibits from the Sattar search and publish them at a later
24 time.
25 THE COURT: All right.
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1 MR. BARKOW: 2002, 2003, 2010S, 2013, 2013T, 2020,
2 2020T, 2021, 2022, 2023, 2023T, 2025, 2026, 2028, 2029, 2029T,
3 2037, 2041, 2046A, 2046B, 2046D, 2052, 2057, 2057T, 2066,
4 2066T, 2067, 2068, 2070, 2070T-A, 2073, 2083, 2083A.
5 THE COURT: All right. No objections. Those exhibits
6 are received in evidence.
7 (Government's Exhibits 2002, 2003, 2010S, 2013, 2013T,
8 2020, 2020T, 2021, 2022, 2023, 2023T, 2025, 2026, 2028, 2029,
9 2029T, 2037, 2041, 2046A, 2046B, 2046D, 2052, 2057, 2057T,
10 2066, 2066T, 2067, 2068, 2070, 2070T-A, 2073, 2083, 2083A
11 received in evidence)
12 MS. BAKER: Your Honor, at this time the government
13 recalls Scott Kerns.
14 THE COURT: Before we move to a witness, this may be a
15 convenient time for our morning break. Please remember my
16 continuing instructions not to discuss the case.
17 All rise, please. Follow Mr. Fletcher into the jury
18 room.
19 (The jury exits the courtroom)
20 THE COURT: All right. Please be seated, all. One
21 thought occurred to me which was on 508-T, I didn't see an
22 objection with respect to the translation. Is the translation
23 subject to a stipulation or is it just not objected to as a
24 stipulation -- as a translation?
25 MS. BAKER: Your Honor, we had not had a chance to ask
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1 defense counsel about that. Since your Honor rejected the
2 other objections, it was our intention to put that question to
3 defense counsel during this break.
4 THE COURT: Okay.
5 MR. TIGAR: Your Honor, with respect to Agent Kerns,
6 who is the next witness to come, and having in mind the Court's
7 sustaining of the government's motion in limine on GX 1300,
8 which is the exhibit he will sponsor, there is a file,
9 19990702_161314, containing 33,576,763 bytes. On the discovery
10 file, the file name is the same, and contains only 1,654,511
11 bytes. I would ask the Court's permission to inquire of Agent
12 Kerns, because these are both VOC files, containing the same
13 file name, what, if any, explanation there is for that
14 disparity.
15 MS. BAKER: Your Honor, this is one of the several
16 issues on which your Honor granted the government's motion in
17 limine to avoid wasting time and confusing the jury. The
18 explanation -- and obviously I'd have to check with Agent
19 Kerns, but the explanation would be that in the mass production
20 of the very large number of files in discovery, there were
21 certain files that were misnamed, and on the trial DVD's, the
22 signal-related information, the nonaudio data that appears in
23 each file on the trial DVD's, makes clear that each file on the
24 trial DVDs are what the government claims they are as far as
25 the dates and times of the calls.
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1 Without looking specifically at the prior file to
2 which Mr. Tigar is referring, I can only infer from all of the
3 circumstances that the file previously produced in discovery
4 was misnamed, and to go into the production of files in
5 discovery and the steps that the FBI took to produce
6 approximately 85,000 files all at the same time in various
7 different sets brings us precisely back to the time wasting and
8 confusion that the government sought to avoid by virtue of its
9 motion in limine. So we would ask the Court to adhere to its
10 prior ruling and not permit that cross-examination.
11 MR. TIGAR: My first observation is since counsel
12 doesn't know what the problem is, it's hard to know whether or
13 not this is relevant, what the government is doing.
14 My second observation is that in addition to what
15 counsel has described as a discovery problem, if you take a
16 look at the very first file listed on 1300L, which is the list
17 of files that the government is proceeding to put in evidence,
18 you find that the signal-related information gives us a
19 creation time of January 1st, 1970. And that's a date, your
20 Honor.
21 I'm not going to go into the rest of the ones listed
22 here, but of course I have a few more. That's not covered by
23 the motion in limine, but I'm trying to indicate I think we
24 have a problem here. I'm trying to do the responsible thing
25 and bring it to the Court's attention.
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1 THE COURT: The first item -- in response to what
2 Ms. Baker said, you raised another issue which doesn't appear
3 to be covered by the motion in limine. So that's not, so far
4 as I can tell, at issue.
5 I would allow a limited number of questions with
6 respect to the VOV files. The main thrust of the motion in
7 limine was the files produced in MP3 format and .wav format
8 rather than the VOC format, and, as I say, I would allow a
9 limited number of questions, if they go to the trial DVD and
10 the authenticity, reliability of the trial DVD.
11 MS. BAKER: Your Honor, I have a request which goes to
12 whether there is a good faith basis for the cross-examination
13 that Mr. Tigar proposes to conduct. If I am correct, and the
14 file produced in discovery that had the same name as the file
15 that we're now offering was misnamed when it was produced in
16 discovery, the signal-related information in the copy produced
17 in discovery would make that clear. And so I would request
18 that Mr. Tigar make the discovery disk available so that we can
19 see whether the signal-related information in that previously
20 produced file makes clear that it's a different call, because
21 if it does make clear that it's a different call and the
22 problem was with the naming of some other call produced in
23 discovery, then there's not a good faith basis for asking this
24 witness now whether there was some change in the same recording
25 from when it was produced in discovery till now, because it
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT2
1 would obviously be clear that it was, in fact, two different
2 recordings, and the problem was a problem of a naming of a file
3 in discovery which has nothing to do with the accuracy or
4 authenticity of the recordings on the trial.
5 MR. TIGAR: The government presumably has a copy of
6 what it produced to us and can look at it. We'll bring a copy
7 and the government can look at our copy if they want, but what
8 Ms. Baker says about file naming isn't quite right. We have
9 now, your Honor, the Lockheed Martin -- what was purported to
10 be the Lockheed Martin materials. Well, they're not. The
11 government produced a diskette to us and I look now, for
12 example, at the -- a call on -- their proposed Exhibit 1300L.
13 Let's just take as an example, Item Number 2 there, which is a
14 1999 call, on the Lockheed Martin materials produced to us.
15 There's a file creation date of July 10th, 2004. So that's not
16 helpful to us to identify. The file name on the Lockheed
17 Martin production is the same file name as in 1300L, but with a
18 DDR suffix, not a VOC suffix. When we opened the Lockheed
19 Martin file, we find that the header and footer information
20 that purports to tell the date of the call is not there, which
21 means that file naming must have been a manual process done by
22 human beings because from the most original -- the originals
23 having been destroyed -- the Lockheed Martin compressed files
24 do not contain signal-related information that would permit you
25 to get all the information that is characterized as
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT2
1 signal-related on the trial DVD.
2 And then if we turn to the trial DVD, we have all
3 these other problems of missing dates and so on. So I just
4 want to ask about that. And I will, if I may.
5 MS. BAKER: Your Honor, the files on the disk that
6 Mr. Tigar was recently given that are the files in the Lockheed
7 Martin format are copies of the files in the Lockheed Martin
8 format. The modified date that appears when you look at the
9 list of files, either on screen in a Windows environment, or
10 printing out a list like this (indicating). The last modified
11 date is supplied by Windows.
12 So that date is a reflection of when a Windows
13 operating computer was used to burn those files to DVD, and it
14 has nothing to do with when those files were originally
15 created, which was the date and time that the calls occurred.
16 I don't know what software Mr. Tigar used to look at
17 the Lockheed Martin files, but when I looked at them, using
18 Notepad to open each file, there is, in fact, nonaudio
19 signal-related information at the beginning of each file which
20 includes the telephone number and the date, although I will
21 proffer to Mr. Tigar maybe he didn't recognize it as the date
22 because it's a date in a different format. It's a string of
23 digits, which is the telephone number. It -- immediately at
24 the end of that string of digits is another string of digits
25 which is a two-digit year, a three-digit Julian date, and then
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47JLSAT2
1 a six-digit time. And when I say Julian date, I mean it's a
2 dating system in which you -- the days of the year are
3 consecutively numbered, 1 through 365, or 366 in the case of a
4 leap year. And so, for example, a date of a particular file
5 might show as 99117, and then a six-digit time, so that would
6 be the 117th day of the year 1999.
7 All of that has nothing to do with the question that
8 he just said that he wanted to ask Agent Kerns on
9 cross-examination, and I still request that -- I mean,
10 Mr. Tigar is right: I have a copy of whatever was produced in
11 discovery. It's obviously not here in the courtroom; I don't
12 know which particular disk or set of discovery disks he's
13 talking about. And I ask that he not be permitted to ask that
14 cross-examination until we've had an opportunity to determine
15 whether that original question he proposes to ask has a good
16 faith basis.
17 THE COURT: Well, Mr. Tigar is alerted to your concern
18 as to whether there's a good faith basis for asking the
19 question. I can't decide that, based upon what I've heard
20 here. Certainly -- and some of the arguments obviously have
21 nothing to do with the original question that was asked. They
22 raise other questions with respect to individual items on the
23 Government Exhibit 1300. And obviously I'll listen to whatever
24 the cross is and, if necessary, the redirect on it.
25 If there is a good faith basis to ask questions about
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT2
1 whether a file in the VOC format identified on Government
2 Exhibit 1300 is, in fact, accurately identified, that would be
3 a reasonable subject for cross. It goes -- it goes beyond the
4 motion in limine which said, Look, essentially, we have 200 to
5 250 calls which we're attempting to authenticate. They've been
6 recorded on the trial DVD in the way in which it's been
7 explained. Going into the production of 85,000 calls in
8 various other formats over a period of time and glitches in
9 that production would be unnecessarily confusing and a waste of
10 time.
11 These questions appear to be directed directly to the
12 trial DVD, items identified on the trial DVD in the same format
13 as the trial DVD, and frankly, it doesn't seem to me to be a
14 big deal. If in fact the facts are whichever way the parties
15 posit, whether there was another file with the same number or
16 whether this number on this DVD may refer to another file name
17 and there is an explanation for that, that would normally be
18 something developed on cross and then by redirect. It doesn't
19 go into another format. It doesn't go into the production of
20 the 85,000 records and any gaps in that production. It relates
21 to the calls on Government Exhibit 1300.
22 MS. BAKER: Your Honor, with all due respect, it did
23 go into the production of the 85,000 files in the VOC format,
24 because when they were produced in the VOC format, they were
25 retrieved en masse. They were renamed through the running of a
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT2
1 software application because, as I think Agent Kerns testified
2 when he was here last time, on the magneto optical disks, the
3 files are merely named sequential numbers, all on one MO disk.
4 So on one particular MO you have files named from 1 through --
5 I don't know, whatever thousand. So for purposes of people who
6 are using them, being able to recognize which files are which,
7 this software script was run on each one, which was supposed to
8 take the signal-related information from inside the header and
9 generate this file name that had meaningful information in it.
10 When the 85,000 files were produced en masse in
11 pretrial discovery in any format, including when they were
12 produced the last time in VOC format, because of the very large
13 number of files all being produced together, nobody did
14 anything to check individual files to ensure that each file's
15 newly-generated file name matched the signal-related
16 information, whereas in this much, much smaller universe of
17 files that are on the trial DVD's, that is not the case, and,
18 in fact, there has been a determination that these file names
19 match the signal-related information in each file.
20 So it does bring up the issue of the production of the
21 85,000 files, and how that was done and how the doing of that
22 differed from the preparation of this disk.
23 THE COURT: But that doesn't -- Agent Kerns has
24 already testified to the existence of 85,000 files, and I
25 believe has testified to the production to the defendants. If
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47JLSAT2
1 not, it would be -- if defendants open it up, it's something to
2 be -- that could be responded to. He already said the reasons
3 for retrieving 85,000 files was for production purposes, unlike
4 cross-examination directed to the production of the 85,000
5 files and gaps in the production or problems with the
6 production, and the parties can ask themselves if there's a
7 good faith basis for it in view of everything that they've
8 heard, but it goes to a very limited subject, which is the
9 naming of a specific file on Government Exhibit 1300, how that
10 came about, and what the basis for its authenticity is for
11 that. And if there's a question raised with respect to the
12 naming of that file, it will be subject to explanation as to
13 why that's true. And it doesn't seem to me at all to raise the
14 kinds of general issues that I decided on the motion in limine.
15 You can consider whether there's a good faith basis.
16 I'll take 10 minutes.
17 (Recess)
18
19
20
21
22
23
24
25
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47JSSAT3
1 (PAGES 3822-3823 SEALED)
2 (In open court; jury not present)
3 MS. BAKER: Your Honor, shall I bring in the witness?
4 THE COURT: Yes, thank you.
5 All right, let's bring in the jury.
6 (In open court; jury present)
7 THE COURT: Please be seated all.
8 THE COURT: The government can call its next witness.
9 MS. BAKER: The government recalls Scott Kerns.
10 SCOTT L. KERNS - recalled
11 THE CLERK: Agent Kerns, having been previously sworn
12 the government reminds you you are still under oath.
13 THE WITNESS: I understand.
14 THE COURT: Ms. Baker, you may continue.
15 MS. BAKER: Thank you, your Honor.
16 MS. BAKER: May I approach the witness?
17 THE COURT: Yes.
18 DIRECT EXAMINATION
19 BY MS. BAKER:
20 Q. Good morning, Agent Kerns. Let me remind you again to
21 please try to speak into the microphone so everyone will be
22 able to hear you.
23 I have handed you two items that are marked for
24 identification as Government Exhibits 1300 and 1301. Let me
25 ask you to look first please at Government Exhibit 1300.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1 Kerns - direct
1 Do you recognize that item?
2 A. Yes, I do.
3 Q. What is it?
4 A. This is a DVD that I created for the U.S. Attorney's
5 Office.
6 Q. How are you able to recognize it as a DVD that you created?
7 A. By my handwriting, signature, and the date on which I
8 created the DVD.
9 Q. In what color writing does that information appear on the
10 DVD?
11 A. It's in black at the bottom.
12 Q. What is on that DVD?
13 A. There are telephone calls that the U.S. Attorney's Office
14 asked me to put on for this trial.
15 Q. I want to ask you about the process that you went through
16 to put those recordings on that DVD. Would it help you in
17 explaining that to refer to one of the diagrams that you used
18 during your previous testimony?
19 A. The one we used last Monday that had the servers, as well
20 as the process along, yes.
21 MS. BAKER: Your Honor, may I place Government Exhibit
22 1310A, which is already in evidence, on the ELMO and publish
23 it?
24 THE COURT: Yes.
25 Q. Agent Kerns, do you have 1310A now on the screen in front
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47JSSAT1 Kerns - direct
1 of you?
2 A. Yes, I do.
3 Q. If you would by referring to Government Exhibit 1310A,
4 please explain to the jury the process you went through to make
5 the DVD which is marked as Government Exhibit 1300.
6 A. What I did was with 1300 some of the calls came off of the
7 5 servers that are listed at the top. The majority of the
8 calls for this particular DVD came off of the MOs which are
9 listed next to position one. From there whether it was servers
10 or whether it was the MOs, I would copy it to position number
11 2, which was the computer that had a DVD burner on it, at which
12 point I would then burn the DVD.
13 Q. When you copied the files from magneto optical disks to the
14 computer shown in computer number 2, were those exact copies?
15 A. Yes, they were.
16 Q. When you copied files from the servers to the computer
17 shown in position number 2, were those exact copies?
18 A. Yes, they were.
19 Q. And then when you used computer number 2 to burn the DVD,
20 were those exact copies from the computer burned onto the DVD?
21 A. Yes, they were.
22 Q. Now, the DVD marked as Government Exhibit 1300, is that DVD
23 the outcome, the output of that third stage in the process, the
24 DVD represented in the diagram in position number 3?
25 A. Position 3, yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1 Kerns - direct
1 Q. Now, for the particular calls that are on the DVD marked as
2 Government Exhibit 1300, were some of those calls originally on
3 electromagnetic tape?
4 A. Yes, they were.
5 Q. And were those calls put onto MO disks through the same
6 conversion process that you described in your testimony last
7 time?
8 A. The same process, yes.
9 MS. BAKER: Your Honor, may I approach the witness
10 again?
11 THE COURT: Yes.
12 Q. Agent Kerns, I have handed you two documents marked for
13 identification as Government Exhibits 1300L and 1301L. Let me
14 ask you to look first at Government Exhibit 1300L. Do you
15 recognize that document?
16 A. Yes, I do.
17 Q. What is it?
18 A. This is a printout of all the files that are listed on
19 Government Exhibit 1300.
20 Q. And how many files is that altogether?
21 A. There are 47 on this particular DVD and 47 listed on
22 Government Exhibit 1300L.
23 Q. Before you came to court, did you compare the actual
24 contents of the DVD marked as Government Exhibit 1300 with the
25 list of files on Government Exhibit 1300L?
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47JSSAT1 Kerns - direct
1 A. Yes, I did.
2 Q. Did they match?
3 A. Yes, they did.
4 Q. Did you indicate that somehow on the DVD and on the list?
5 A. Yes, I did.
6 Q. What did you do?
7 A. On the DVD I initialed and dated it in red right up at the
8 top here, and with 1300L I just signed my name and dated it as
9 well.
10 Q. Let me ask you to set aside 1300 and 1300L for now and turn
11 to the DVD marked as Government Exhibit 1301. Do you recognize
12 Government Exhibit 1301?
13 A. Yes, I do.
14 Q. What is it?
15 A. This is what I labeled as Sattar Trial DVD number 3, once
16 again calls requested by the U.S. Attorney's Office.
17 Q. Did you make that DVD? Did you put the calls on there?
18 A. Yes, I did.
19 Q. Referring again to the diagram which is Government Exhibit
20 1310A, would you explain to the jury the process that you went
21 through to create that third DVD which is marked as 1301?
22 A. On this one there is -- there are only a few calls and I
23 used the MO disks. Whether they were from the conversion, from
24 the Lockheed Martin system or the Raytheon system, I just
25 copied them straight across. I did not use the servers for
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47JSSAT1 Kerns - direct
1 this particular operation. I copied it to the computer that
2 has a DVD burner at which point then I burned the DVD.
3 Q. And, again, when you were copying the files from the MO
4 disks onto the computer with the DVD burner, were those exact
5 copies of the recordings?
6 A. Yes, they were.
7 Q. And when you then copied the files onto the DVD, burned the
8 DVD, were those, again, exact copies of the recordings?
9 A. Yes, they were.
10 Q. Let me ask you to look please at the document marked as
11 Government Exhibit 1301L. Do you recognize that document?
12 A. Yes, I do.
13 Q. What is that?
14 A. This is a printout of the 12 files that are currently on
15 Government Exhibit 1301.
16 Q. Before you came to court, did you compare the list of files
17 with the actual files that are on Government Exhibit 1301, the
18 DVD?
19 A. Yes, I did.
20 Q. Did they match?
21 A. Yes, they did.
22 Q. And did you indicate that somehow?
23 A. Yes, I did. The same process as with Government Exhibit
24 1300 in red I put my initials and the date, and on the piece of
25 paper I signed it and dated it right on the Government Exhibit.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1 Kerns - direct
1 Q. Turning back to the DVD for the moment, I don't remember if
2 I asked you this: Are your initials and the date on the DVD,
3 Government Exhibit 1301, twice?
4 A. Yes.
5 Q. They are there in black once and in red once?
6 A. Yes.
7 Q. What do your initials and the date in black signify?
8 A. That, along with the title, is the date that I actually
9 burned this DVD.
10 Q. On each of the instances when you burned a DVD, 1300 on one
11 occasion, and then 1301 on another occasion, did you burn at
12 the same time multiple copies or duplicate originals of those
13 DVDs at each occasion?
14 A. Yes, I did.
15 Q. Agent Kerns, in the process of preparing the second trial
16 DVD, the one that is marked as Government Exhibit 1300, did you
17 do something that allowed you to determine what the last
18 modified date of each file represents? That is something you
19 were asked about during your previous testimony.
20 A. Yes, I did.
21 Q. Could you explain what you did and what that caused you to
22 figure out about what "last modified date" means?
23 A. Sure.
24 Can I go back to the Government exhibit and just look
25 at that real quick? Because I need the date.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT1 Kerns - direct
1 Q. Yes.
2 A. On one file based on the questioning from last Monday, what
3 I did was I was curious on the last modified date because I
4 didn't know exactly how that date came about. One of the calls
5 on here on page number 2, I found the original MOs and what I
6 did was I copied it from position number 1 to position number
7 2. When I did that, it gave me the last modified date of the
8 date and time on that computer when it was copied. So that was
9 how that last modified date came about.
10 Q. So based on that work that you did and that observation
11 that you made, what do you now understand the last modified
12 date of each file to represent as far as which stage in the
13 process for each file it corresponds to?
14 A. It is between stages 1 and 2, moving from the UNIX system
15 where I am searching for the file and actually copying once I
16 find it, copying that file to number 2, which I stated
17 previously was a Windows computer, and it put in the last
18 modified date as it appeared on that computer.
19 Q. And just so that the record is clear, when you were copying
20 any file on any one of the trial DVDs from the MO using that
21 UNIX computer system to the Windows computer with the DVD
22 burner, did you in any way modify the audio recording inside
23 any file?
24 A. No.
25 Q. Did you in any way modify the nonaudio signal-related
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47JSSAT1 Kerns - direct
1 information inside any file?
2 A. No.
3 MS. BAKER: Your Honor, may I have a minute to confer?
4 THE COURT: Yes.
5 MS. BAKER: Your Honor, at this time the government
6 offers the two DVDs, which are Government Exhibits 1300 and
7 1301, and specifically each of the audio files on each of the
8 DVDs and the number of each audio file, the Government exhibit
9 number is shown on the corresponding list. The lists are 1300L
10 and 1301L. We also offer the lists.
11 And as to each of the audio files themselves as
12 previously, the government specifically offers the
13 signal-related information contained in each file and those
14 portions of the audio in each file that correspond to the
15 excerpted transcripts that the government will use at trial.
16 THE COURT: All right.
17 MS. BAKER: And I have no further questions of the
18 witness.
19 THE COURT: All right.
20 MR. TIGAR: May I inquire, your Honor?
21 THE COURT: Yes.
22 MR. TIGAR: May I please have 1310A.
23 Thank you.
24 CROSS EXAMINATION
25 BY MR. TIGAR:
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Q. Agent Kerns, I am not going to go back over everything that
2 we talked about before, but I wanted to ask, first, do you over
3 there in your office have a program called Gold Wave?
4 A. Yes, we do.
5 Q. And what is your understanding of what Gold Wave does?
6 A. It's an audio player.
7 Q. Do you understand that you can edit audio files on Gold
8 Wave?
9 MS. BAKER: Objection.
10 THE COURT: Basis?
11 MS. BAKER: It assumes a fact not in evidence.
12 THE COURT: Overruled.
13 Q. I am not trying to trap you, sir.
14 Do you understand whether or not you can? I guess
15 that is the deal.
16 A. I have never done any editing on Gold Wave. I use it
17 strictly to play audio.
18 Q. Now, you testified here about this signal-related
19 information, correct?
20 A. That is correct.
21 Q. Now, the Lockheed Martin files, that is where this began,
22 correct?
23 A. For some of them, yes.
24 Q. For some of these recordings.
25 MR. TIGAR: May I show him 1310A, your Honor?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 THE COURT: Yes.
2 Q. And we have heard before that from the hard disk somebody
3 made these electromagnetic tapes, correct?
4 A. That is correct.
5 Q. And then eventually the information winds through the
6 various stages that are shown on this exhibit, correct?
7 A. Correct.
8 Q. Now, for your work today, the 1300 and 1301, you copied
9 some files from a server and some from MO disks, correct?
10 A. Correct.
11 Q. And what was the difference? Why some from a server and
12 why some from the MO disks?
13 A. Due to the fact that I had some of the information from
14 previous discovery on those servers, which I stated in prior
15 testimony that in DVD number 1 a good amount of it came from
16 the servers. However, it became easier just to go back to the
17 MOs and do it that way because I stated before the servers, the
18 conductivity lines had to be established in order to copy the
19 information.
20 Q. The what?
21 A. The conductivity lines. These are stand-alone. The
22 servers were stand-alone, which means they are not connected to
23 anything other than themselves. And I needed to connect them,
24 which is why I drew the lines, from there to 2. The
25 conductivity already existed from 1 to 2. So it was just much
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47JSSAT3 Kerns - cross
1 easier to do it that way.
2 Q. By conductivity, you mean one wire stuck into one machine
3 and one wire stuck into another machine?
4 A. Correct.
5 Q. All right.
6 Now, at what point in this process did these files get
7 a name?
8 A. Once they came to computer number 2.
9 Q. And that is this computer hard drive here right by my
10 finger, correct?
11 A. That is correct.
12 Q. And the name you chose was a 4-digit year, correct?
13 A. Correct.
14 Q. Would you like to have a copy of the exhibit to look at?
15 A. Sure.
16 MR. TIGAR: May I show him the exhibit, your Honor?
17 THE COURT: Yes.
18 Q. This is not in evidence yet, Agent, but that is a copy --
19 oh, you have the original one, all right. If you will look at
20 yours, I will look at mine.
21 There is a 4-digit year, correct?
22 A. Correct.
23 Q. And then a date, such as 0702, correct?
24 A. Correct.
25 Q. An underscore, and then is that a time of day?
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47JSSAT3 Kerns - cross
1 A. Yes, it is.
2 Q. And then the next thing is a telephone number, correct?
3 A. Correct.
4 Q. Now, for the files that were done on the Lockheed Martin
5 system, where did you get that information for the date and
6 time?
7 A. Well, for the Lockheed Martin system after they were
8 converted they were converted into VOC and that information was
9 taken out of the VOC header.
10 Q. Out of the VOC header?
11 A. Yes.
12 Q. Now in the Lockheed Martin format, the date and time
13 information is different than this, isn't it?
14 A. Yes, it is.
15 Q. In the Lockheed Martin format they don't have an actual day
16 of the month in there, do they?
17 A. The one call that I looked at, no, it was not.
18 Q. And you say the one call that you looked at. So you didn't
19 look at all the calls?
20 A. No.
21 Q. Well, if it didn't have the actual day of the month in the
22 Lockheed Martin file, how did you get the day of the month to
23 put in here?
24 A. The conversion process, as I stated previously and you
25 questioned me on, I do not know how the SRI data was pulled
SOUTHERN DISTRICT REPORTERS, P.C.
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1 from the Lockheed Martin during the conversion and was put in
2 the header once it was converted. As to the exact process, I
3 don't know.
4 Q. But you have looked at Lockheed Martin files, correct?
5 A. In their original format?
6 Q. Yes, sir.
7 A. One, yes.
8 Q. One, okay.
9 Now, is that one of the ones that you gave to us on a
10 diskette?
11 A. No, I gave it to you on a CD.
12 Q. I call it a DVD, a diskette. It's one of the ones you gave
13 to us, correct?
14 A. That is correct.
15 MR. TIGAR: May I approach, your Honor?
16 THE COURT: Yes.
17 MS. BAKER: Your Honor, may I also approach so I will
18 see what he is showing to the witness?
19 THE COURT: All right.
20 MR. TIGAR: Yes, please.
21 Q. This is the Lockheed Martin DVD you made, right?
22 A. It's the CD, yes. That is the one I created.
23 Q. So we are going to put it in here and now I have loaded the
24 directory, correct?
25 A. Correct. You are looking at it in I believe it's "My
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Computer". So it shows all the files that are there.
2 Q. Do you remember which one you opened to look at?
3 A. No, I don't.
4 Q. Well, can we just do one?
5 A. Sure, open any one of them.
6 Q. Open any one, okay.
7 We are opening it in Notepad, correct?
8 A. Correct.
9 Q. Now, what the Notepad is going to do is give us only the
10 hexidecimal information and not the audio, correct?
11 A. It gives you text, correct, or what it says, what it can
12 determine is text within the file.
13 Q. Is that also known as hexidecimal?
14 A. I don't really know. I don't think I have ever referred to
15 it as that.
16 Q. Okay. Well, it's text, right?
17 A. It's text.
18 Q. And we can read it?
19 A. We can read it.
20 Q. All right.
21 And here we can read a phone number, correct?
22 A. That is correct.
23 Q. And then is the next number a year? What do you understand
24 that to mean there?
25 A. Let's see here. I just need to be able to see it better.
SOUTHERN DISTRICT REPORTERS, P.C.
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1 When we looked at this file or when I looked at the
2 file and we went through the first part of it from 1 it states
3 the numbers, the way they go are 17184423513, which I
4 understand is the telephone number.
5 Q. Right. In fact, then, when somebody named the file, they
6 gave it a file name that included that information, correct?
7 A. During the conversion process, correct. That is how it
8 would work.
9 The next two numbers, 99, is what is supposed to be
10 the year of that particular call.
11 Q. Now, how do you know that?
12 A. Because that is how -- based on my just looking at it I
13 don't know for a fact but that is what I understand how these
14 were named.
15 Q. My question is how do you understand that? Where did you
16 learn it?
17 A. I just looked at the file and said, oh, this is how it's
18 named.
19 Q. It says 99 so somebody then made the 99 into a 1999,
20 correct?
21 A. That is correct.
22 Q. Who did that?
23 A. That was whoever built the conversion program.
24 Q. Not you?
25 A. No, not me.
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1 Q. Now, then, the next thing we see in the file name is a
2 0126, et cetera, right?
3 A. Correct.
4 Q. And the file name, what does that mean?
5 A. Are you referring to here?
6 Q. Looking up here.
7 A. Up here, this would be 0126, which would be January 26.
8 Q. Of 1999?
9 A. That is correct.
10 Q. And the next information is 054634, 5 hours, 46 minutes, 34
11 seconds?
12 A. 05 o'clock in the morning, correct.
13 Q. 05.
14 A. 05, correct.
15 Q. Like military time?
16 A. It is military time.
17 Q. Now, where is the January 26 information?
18 A. It's right after the 99. It says 026.
19 Q. 026. So your interpretation is it just counts the number
20 of days since the beginning of the year?
21 A. Julian date, that is correct.
22 Q. So that information somebody used to make this file header?
23 A. That is correct.
24 Q. And that file name with a different suffix is the same file
25 name that is on Exhibit 1300 if that call is on there, correct?
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1 A. That is correct.
2 Q. Now, was there a computer program that assigned these file
3 names with these dates or did a human have to do something?
4 A. Are you referring to these particular DVDs?
5 Q. Yes.
6 A. On these particular DVDs I actually went through and opened
7 up the file in Notepad and then typed out the file name.
8 Q. So you did it manually, correct?
9 A. I did it manually for these two DVDs, that is correct.
10 Q. So you tell me you opened -- what file did you open in
11 Notepad?
12 A. The VOC file.
13 Q. And then you gave it a file name, correct?
14 A. Then I renamed that file to the SRI data, correct.
15 Q. What name did it have before?
16 A. These, as I believe I testified earlier, are sequentially
17 numbered on their MOs. So, in fact, I believe it is Government
18 Exhibit 1301 is a good example. One DVD had one of the calls
19 as 000026 .VOC, which I copied over to the computer. I went to
20 another MO looking for a particular call requested of me. When
21 I found the call it was listed on that MO as 0000026 .VOC. If
22 I copied that file it would overwrite on the computer. So what
23 I had to do was rename the first one properly, then I copied
24 it, then I renamed it so I wouldn't overwrite it. That is why
25 we had to rename all the files other than the fact that you
SOUTHERN DISTRICT REPORTERS, P.C.
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1 would have no idea what you were looking at unless you opened
2 every single file in Notepad.
3 Q. So it is the case that the FBI in your office has the
4 ability to rename files?
5 A. Sure, yes.
6 Q. And do you also have the ability to go in and change the
7 text information in the file?
8 A. If somebody wanted to do that, yes, because it is text.
9 They could change the text.
10 Q. In other words, all you would have to do is if you want to
11 change the text is you put your MO disk or you open it up in
12 the hard drive and open it up in a program like Notepad,
13 correct?
14 A. Once they moved it to a Windows computer, sure, they can do
15 that.
16 Q. Now, the computer on which you did these things here, is
17 that computer number 2?
18 A. That is correct.
19 Q. What platform was that?
20 A. It's a Windows platform.
21 Q. And are the servers Windows platform too?
22 A. No, sir, they are UNIX.
23 Q. So some of the files on 1300 are in a UNIX platform and
24 some of the files in 1300 come from UNIX servers and some from
25 Windows, right?
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1 A. No, everything came -- position number 1, that system is
2 also UNIX. That is the operating system that we use for the
3 Raytheon system. So what we did was everything was copied over
4 but I copied it to a Windows computer because that is where the
5 DVD burner was. But the servers and position number 1, all
6 those systems are UNIX.
7 Q. The server up in position -- you say where you wrote the
8 word "servers", correct?
9 A. Right.
10 Q. Okay.
11 The files that are on 1300 that came from the servers,
12 those files on the servers were in a Windows environment?
13 A. No, the server is UNIX.
14 Q. But the DVD that is in front of you, 1300, all the calls
15 are in Windows, correct?
16 A. Yes, because that computer is Windows, that is correct.
17 Q. That meant then that you had to convert, did you not, from
18 a UNIX-based VOC system to a Windows VOC-based system?
19 A. I don't know. You had mentioned that previously. I don't
20 know a difference between UNIX VOC and Windows VOC. I never
21 heard that before. I don't know if that is --
22 Q. I am only asking a question.
23 A. I am going from one operating system to another operating
24 system, that is correct.
25 Q. I am not trying to testify here. I don't know. But you
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1 did say you went from one system to another?
2 A. Absolutely.
3 Q. Do you know whether or not you can open up in the UNIX
4 environment with a text editor, such as Notepad or the
5 equivalent, and edit text?
6 A. It does have a text editor function. I have never tried to
7 do it. But if it had a text editor function I am sure you can
8 probably open the file in a text format and edit text.
9 Q. All right, sir.
10 Now, would you take a look please at 1300 and do you
11 see on there a file name 1990702 underscore 161314?
12 A. Yes.
13 Q. All right, sir.
14 MR. TIGAR: May I approach, your Honor?
15 THE COURT: Yes.
16 MS. BAKER: Your Honor, may I also approach?
17 THE COURT: Yes.
18 Q. Now, would you hand me -- oh, here is 1300, correct?
19 A. Yes.
20 Q. I put 1300 in there. Now we are going to go into Windows
21 Explorer and is that the file I was just asking you about,
22 0702?
23 A. Yes, it is.
24 Q. All right. Let's see what happens. We have opened --
25 let's look here. It's a big file.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 A. It takes a while to open the big files in a text editor.
2 Q. There we go.
3 Now, I am going to maximize that screen, all right?
4 A. Okay.
5 Q. And I want you to look here. It starts with various
6 information, correct?
7 A. Correct.
8 Q. And this information is more extensive, is it not, than the
9 header information on the equivalent Lockheed Martin file?
10 A. In this format, I didn't go through the whole Lockheed
11 Martin but, yes, this seems to be more than -- that is also due
12 to the fact that it was converted to VOC and this information
13 is necessary.
14 Q. In the Lockheed Martin file we looked at the header
15 information was basically the date in some specific format and
16 then the time, correct?
17 A. Right. And there was other information as in case file and
18 some of the other information.
19 Q. All right.
20 Now, I hit "control end." Now, you notice here at the
21 end of the file there are lines and lines and lines of footer
22 information, correct?
23 A. Yes.
24 Q. Now, do you know whether or not in a Lockheed Martin file
25 in the DDR format there is footer information like this?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 A. I don't know.
2 Q. Well, I am not going to load and unload this. We will look
3 at that in a minute. But let's just look at -- for example,
4 this says creation time, right?
5 A. Yes, it does.
6 Q. Do you see a date there?
7 A. Yes, I do.
8 Q. And what year is that?
9 A. It says 1970.
10 Q. And then it says V start time, correct?
11 A. Correct.
12 Q. And that is a 1970 year also, right?
13 A. Yes, it does.
14 Q. Do you know what that means?
15 A. No, I don't.
16 Q. Okay. So you don't know why there would be a 1970 date in
17 a file about a 1996 conversation, correct?
18 A. I don't know.
19 Q. I am going to take the exhibit out.
20 THE COURT: Are we talking 1996 or '99?
21 MR. TIGAR: 1999.
22 Thank you very much, your Honor.
23 Q. Amending it to the year you don't know that either, right?
24 A. Right.
25 MR. TIGAR: Thank you, your Honor.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT3 Kerns - cross
1 Q. Now, do you know how that information that I showed you at
2 the end of that file got in there?
3 A. No, I don't.
4 Q. Do you know whether a human put it in or whether the
5 computer generated it itself?
6 A. I don't know.
7 Q. How many of the files, audio files on GX 1300, did you open
8 and listen to?
9 A. I don't know. I mean, the only time I ever opened files
10 was if I needed to make sure that the DVD worked or if a
11 linguist had a question. But I don't sit there and listen to
12 this.
13 Q. And with respect to all of the Lockheed Martin original
14 files that are on 1300 and 1301, is it your testimony that you
15 supervised the conversion from A to 1? That is, from the
16 electromagnetic tape to the magneto optical disk?
17 A. Correct.
18 Q. And to do that you used a program, correct?
19 A. That is correct.
20 Q. That is a conversion program?
21 A. That is correct.
22 Q. Now, that conversion program -- withdrawn.
23 The files in the Lockheed Martin format are DDR files,
24 correct?
25 A. I don't know where that name came from. That was just when
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1 it was provided to me by the engineers that that was what they
2 had named them. I don't know what that means.
3 Q. Now, a little while ago we looked at the Lockheed Martin
4 diskette, correct?
5 A. Correct.
6 Q. That you provided. Is it your testimony that that diskette
7 was prepared by engineers and not by you?
8 A. Oh, I was on my honeymoon. It was not prepared by me.
9 Q. All right.
10 When did you become aware that it had been prepared?
11 A. Let me see, I testified on the 12th. On the 11th I came in
12 to the office after returning and I spoke to the engineers that
13 were going to provide this that they were going to make a copy
14 from -- and they had a list of calls from the U.S. Attorney's
15 Office and that they were going to provide that to me, which I
16 was then going to provide to the U.S. Attorney's Office.
17 Q. And that was why you wrote on it and signed it, correct?
18 A. Correct. What you have is a copy of what I made, which I
19 believe I did -- I would have to look at the date on it but I
20 was here all day on Monday. I believe I did it either on
21 Monday or Tuesday of last week.
22 Q. With regard to the Lockheed Martin conversion of the
23 earlier files, that is, when they were originally placed on the
24 MO disks for eventual use in this trial, did the engineers do
25 that conversion or did you?
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47JSSAT3 Kerns - cross
1 A. No, I did not do it, neither did the engineers. They
2 provided the program and technical personnel in our office were
3 the ones doing that over a period of time.
4 Q. Who provided the program?
5 A. It was provided to us from ERF, from the engineering
6 research facility down in Quantico.
7 Q. Did you check the bytes in, bytes out of the conversion?
8 A. No, I did not.
9 Q. Do you know as you sit there today what proportion or
10 percentage of VOC bytes is to DDR bytes?
11 A. No, I don't.
12 Q. And that was something that the Quantico people did, right?
13 A. With respect to what?
14 Q. They wrote the programs.
15 A. Yes, they are the ones that created the program.
16 Q. Now, you said a few minutes ago that you had listened to a
17 call or some calls, right?
18 A. Yes.
19 Q. Now, in your last appearance here you said you were
20 concerned about file degradation, correct?
21 A. On --
22 Q. On some EMT.
23 A. On some of the tapes, yes, that is correct.
24 Q. Electromagnetic tapes, right.
25 And you told us what you did to deal with that
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47JSSAT3 Kerns - cross
1 problem, correct?
2 A. Correct.
3 Q. Now, did you listen to all of the audio files to see
4 whether or not there were problems in the audio that might have
5 been due to tape degradation?
6 A. No.
7 (Continued on next page)
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47JLSAT4 Kerns - cross
1 BY MR. TIGAR:
2 Q. Did you listen to any files to see if there were problems
3 that might have been due to calls being cut off?
4 A. No.
5 Q. Have you looked at transcripts prepared by the government,
6 either the FBI or the U.S. Attorney's office in this case?
7 A. No.
8 Q. May I approach, your Honor?
9 THE COURT: Yes.
10 Q. I'm going to show you, Sir, what has been received in
11 evidence as Government 1002X. You're familiar with that sort
12 of format, correct?
13 A. Yes. This is, as I testified earlier, this is what a
14 technical cut looks like, as I was talking with regard to
15 pertinent phone calls, when someone actually writes up a call.
16 MR. TIGAR: May I show the witness 1002X, your Honor,
17 on the screen?
18 THE COURT: Yes.
19 Q. This has been received in evidence, Sir, and you'll notice
20 that there's some information here at the top, correct?
21 A. Correct.
22 Q. Can you help us out? What's the monitor number?
23 MS. BAKER: Objection. Relevance; lack of personal
24 knowledge.
25 Q. If you know.
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47JLSAT4 Kerns - cross
1 THE COURT: If you know.
2 A. No, I don't know.
3 Q. Call direction, is that something you would expect to find
4 in a header or footer?
5 A. It may be in there, I'd have to actually look at the header
6 or footer to see if the call direction is maintained. Whether
7 it's in the actual text or whether it's in the audio, I don't
8 know.
9 Q. Now, call direction is something that's important, correct,
10 In an investigation?
11 A. Yes.
12 Q. So if it's unknown, you like to know it, right?
13 MS. BAKER: Objection.
14 THE COURT: Sustained.
15 MR. TIGAR: I'm sorry, your Honor?
16 THE COURT: I said sustained.
17 MR. TIGAR: Thank you, your Honor.
18 Q. Now, a couple more questions. Here's Line 2, phone
19 ringing. It says UI. That's unintelligible, right?
20 A. That's my understanding, yes.
21 Q. It's my understanding nobody asked you to go back to those
22 original files and see why there were these unintelligibles?
23 A. No.
24 Q. Do you know if anybody in the Federal Bureau of
25 Investigation was asked to go back into those original
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1 electromagnetic tapes with which you were dealing and try to
2 see why there were these unintelligibles in there?
3 A. No.
4 Q. Now, at the end of 1002X, the last words at Line 11
5 are "recording stopped". Do you see that?
6 A. Yes, I do.
7 Q. Do you know what that means?
8 A. It means that whoever wrote that, the recording stopped,
9 and they annotated that.
10 Q. Now, based on your knowledge of the call, do you know
11 whether that means the machine stopped recording or what that
12 means in terms of the investigation?
13 MS. BAKER: Objection. Lack of personal knowledge.
14 THE COURT: If you know.
15 A. I have no idea.
16 Q. But did anyone ask you to go into these calls where the
17 recording stopped and look back at the electromagnetic tapes
18 and see why the calls stopped?
19 A. No.
20 Q. Do you know how many calls there are that are being used in
21 this case in which a call stops and then somebody picks it up
22 again later?
23 A. No, I don't.
24 Q. That was not part of your job?
25 A. No. The only thing that we worked on was converting tapes
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1 and turning everything over to the U.S. Attorney's office to be
2 turned over to defense.
3 Q. Now, have you worked with the U.S. Attorney's office to
4 prepare the tapes for trial?
5 A. When you say --
6 Q. Have you played -- excuse me, bad word. Have you played
7 DVDs or CDs on U.S. Attorney's office's machines?
8 A. Once they loaded GoldWave and I showed them how to
9 basically use it.
10 Q. The U.S. Attorney's office has GoldWave also?
11 A. Yes, they do. It's the only way you can listen to these.
12 Q. Have you ever read the instruction manual on GoldWave?
13 A. I believe I've used the Help on it once or twice, but, no,
14 I have not.
15 MR. TIGAR: May I have a moment, please, your Honor?
16 THE COURT: Yes.
17 (Off the record)
18 MR. TIGAR: Your Honor, there is a matter about which
19 I may wish to inquire of the witness. However, I would need to
20 get a diskette that has arrived and look at it. I don't want
21 to --
22 THE COURT: Okay.
23 MR. TIGAR: I'd ask your Honor's assistance.
24 THE COURT: We'll take a 10-minute break. I don't
25 like to break for lunch at this point, ladies and gentlemen,
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1 because I know your lunch comes at a certain time. So we'll
2 take a 10-minute break. If it goes on more time so that you
3 run into your lunch hour, I hear that your lunch has arrived,
4 we'll continue it into the lunch hour. But otherwise, we'll
5 just take a 10-minute break. It will be a good time to
6 stretch. Please remember my continuing instructions not to
7 talk about the case.
8 All right. All rise. Follow Mr. Fletcher to the jury
9 room.
10 (The jury exits the courtroom)
11 THE COURT: All right. Take 10 minutes. Agent Kerns,
12 you can step down. You're still on cross-examination, so
13 please don't talk to anyone about your testimony.
14 THE WITNESS: Yes, your Honor.
15 (Recess)
16 (In open court; jury not present)
17 THE COURT: Please be seated, all. Are we ready to
18 proceed?
19 MR. TIGAR: Yes, your Honor.
20 THE COURT: All right. Let's bring in the jury.
21 (Jury enters the courtroom)
22 (In open court)
23 THE COURT: Please be seated, all.
24 Agent Kerns is still on the stand. Mr. Fletcher?
25 DEPUTY CLERK: Agent Kerns, you understand you are
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1 still under oath.
2 THE WITNESS: I understand.
3 THE COURT: Mr. Tigar?
4 MR. TIGAR: I have no further questions at this time.
5 THE COURT: All right. Ms. Baker, you may examine.
6 MS. BAKER: I'm sorry, your Honor, I didn't hear you.
7 THE COURT: I said, you may examine.
8 MS. BAKER: Thank you.
9 REDIRECT EXAMINATION
10 BY MS. BAKER:
11 Q. Agent Kerns, during cross-examination, Mr. Tigar asked you
12 some questions about the information that's in the headers of
13 the Lockheed Martin files in their original format before
14 conversion. Do you remember those questions?
15 A. Yes, I do.
16 Q. And you had testified that you had only looked at one
17 example of that file in its original format?
18 A. That's correct.
19 Q. Mr. Tigar was asking you which, if any, information from
20 the header of the file in its original format ended up in the
21 header of the VOC files after the conversion. Do you remember
22 those questions?
23 A. Yes, I do.
24 Q. And the way Mr. Tigar was asking his questions, he was
25 asking you whether somebody used --
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1 MR. TIGAR: Excuse me, your Honor. "The way Mr. Tigar
2 was asking --"
3 THE COURT: Rephrase.
4 BY MS. BAKER:
5 Q. You were asked whether somebody used certain information
6 from the original Lockheed Martin header to result in
7 information being the headers of the VOC files?
8 A. That's correct.
9 Q. You testified that you didn't personally -- you testified
10 previously that you didn't personally do any of the conversions
11 of the Lockheed Martin files to the VOC format, correct?
12 A. That's correct.
13 Q. But you were present while it was going on?
14 A. I was, from when I came onto the squad until this point,
15 yes, that's correct.
16 Q. From what you saw of that conversion process that the other
17 people were doing, was there any manual transferring of
18 particular header information from particular Lockheed Martin
19 files into VOC files, or was it an automated process?
20 A. Everything was automated.
21 Q. You were asked on cross-examination at one point whether it
22 would be possible, using a Windows computer, to change
23 signal-related information in the VOC files, which is
24 essentially the text in the files. Do you remember being asked
25 that?
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1 A. Yes.
2 Q. Did you personally at anytime change any signal-related
3 information in any file?
4 A. No.
5 Q. To your knowledge, did anyone else change any
6 signal-related information in any file?
7 A. No.
8 Q. Mr. Tigar asked you at one point whether there was -- I
9 think the word he used was conversion, when a VOC file was
10 copied from the UNIX operating system to the Windows system on
11 the computer in Position Number 2 on the diagram. Do you
12 remember that question?
13 A. Yes.
14 MS. BAKER: Your Honor, before I continue, may I put
15 the diagram back up, Government Exhibit 1310A?
16 THE COURT: Yes.
17 Q. So that we're clear, position Number 1 in the diagram,
18 which is where the magneto optical disks are read, is that the
19 UNIX operating system?
20 A. It runs on a UNIX platform, yes, it does.
21 Q. And then the computer shown in position Number 2, which is
22 the computer that was used to burn the DVDs, that's a Windows
23 operating system?
24 A. That's correct.
25 Q. Were you copying the VOC files from position Number 1 on
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1 the magneto optical disk to the Windows computer in position
2 Number 2?
3 A. Yes.
4 Q. To your knowledge, did that copying from the computer in
5 position Number 1 to the computer in position Number 2 cause
6 any change in the audio content of any of the files?
7 A. No.
8 Q. Did that copying from the computer in position Number 1 to
9 the computer in position Number 2 cause any change in the
10 signal-related information inside any of the files?
11 A. No.
12 MR. TIGAR: Personal knowledge.
13 THE COURT: Overruled.
14 Q. Mr. Tigar also asked you whether you know if the GoldWave
15 program or computer application is capable of editing audio
16 content in files. Did you ever use the GoldWave software or
17 application to edit or to fry to edit any of the files in this
18 case?
19 A. No.
20 Q. To your knowledge, did anyone else?
21 A. No.
22 MS. BAKER: Your Honor, may I have a minute?
23 THE COURT: Yes.
24 (Off the record)
25 MS. BAKER: Your Honor, if I might, I would like to
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1 approach the witness with a laptop computer and ask him to look
2 at the contents of one of the files on Government Exhibit 1300
3 for identification just as Mr. Tigar did.
4 THE COURT: All right. If you want to approach, also,
5 Mr. Tigar?
6 MR. TIGAR: I have a DVD here, your Honor. So unless
7 I need, to I'll just do it from here.
8 BY MS. BAKER:
9 Q. Agent Kerns, let me ask you to put in the DVD marked as
10 Government Exhibit 1300. And if you would use the my computer
11 application to pull up the list of the files that are on the
12 DVD. And then I'm going to ask you to use Notepad to look at
13 the signal-related information in the same file that Mr. Tigar
14 was asking you about, which is the first one.
15 A. (The witness complies)
16 Q. On cross-examination -- withdrawn.
17 Let me ask you to go down to the information at the
18 very end of the file which Mr. Tigar referred to as footer
19 information.
20 A. (The witness complies)
21 It's just taking a second to load.
22 Q. Agent Kerns, right now you have the file open in QuickView
23 Plus. Do you want to switch to Notepad? That might open it
24 more quickly.
25 A. I can.
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1 Q. Actually, before you go down to the bottom of the file,
2 once it opens, let me ask you about some of the information at
3 the top of the file.
4 A. Okay. There it is.
5 Q. And you're looking now at the nonaudio or the
6 signal-related information at the top of the file, correct?
7 A. That's correct.
8 Q. Which, if any, field or line of data in what you see on the
9 screen in front of you now indicates the start date and time of
10 the call?
11 A. There's a field three-quarters of the way down called
12 session start =, which is, I understand, as the start date and
13 time of this particular call.
14 Q. Let me ask you now to go down to the information at the end
15 of the file.
16 A. Okay.
17 Q. On cross-examination, Mr. Tigar asked you about two other
18 date fields that appear in the signal-related information or
19 nonaudio data at the end of the file. Do you know what either
20 of those fields represents?
21 A. No, I don't.
22 Q. To go back to the field at the top of the file, where it
23 showed session start?
24 A. Correct.
25 Q. If you would go back to that. Does the date and time shown
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1 in the session start field match the date and time reflected in
2 the file name of this particular audio file?
3 A. Yes, it does.
4 Q. You testified that you were the person who gave each of
5 these files on these DVDs the names that they have now?
6 A. Yes, DVD 2 and 3, I named all of them. And I did that
7 manually, not through a program.
8 Q. When you were naming the files, you were determining which
9 information to put in the name of each of the files, which
10 field of that signal-related information were you looking at to
11 know which information to put in the name of each file?
12 A. I would open up the file, just as we have here in Notepad.
13 I'd look for the session start, which is the first part of the
14 telephone call which is the date and the time. I would then
15 take that and rename the part of the file, and then I would
16 look up in the t num = field for the telephone number and add
17 in there, put VOC and then rename that file.
18 MS. BAKER: Thank you. No further questions.
19 THE COURT: All right. You may attend, limited to
20 redirect.
21 MR. TIGAR: Yes, of course.
22 THE COURT: Do you want that laptop?
23 MR. TIGAR: No, your Honor, this is fine.
24 THE COURT: All right.
25 RECROSS EXAMINATION
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1 BY MR. TIGAR:
2 Q. When you manually renamed the files, did you go back to the
3 Lockheed Martin files to check your work?
4 A. No.
5 Q. When the Lockheed Martin files were changed to VOC,
6 everything was automated, correct?
7 A. Yes, it was.
8 Q. Did you go back and manually check each file?
9 A. No.
10 Q. Did you manually check each one of the files that's on 1300
11 and 1301 against the Lockheed Martin files?
12 A. The original format? No.
13 Q. So is that basically the same automated process that you
14 used to produce the discovery files or not? The conversion?
15 A. The conversion, yes. All the discovery was done using the
16 conversion, that's correct.
17 Q. So the automated process used to produce these files was
18 the same as the automated process used for the discovery files,
19 correct?
20 MS. BAKER: Objection. Vague.
21 THE COURT: Rephrase.
22 Q. Is the automated process that you used to create -- to put
23 the files in 1300 and 1301 the same automated conversion
24 process that's used to convert Lockheed Martin files to VOC
25 files, for discovery?
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1 A. When you say "conversion", are you talking about converting
2 from a tape to an MO?
3 Q. Yes.
4 A. Okay, yes, then that absolutely was -- those -- those MO's
5 that were converted, those were the ones used, both in
6 discovery as well as in these DVDs.
7 Q. And did you participate in the creation or conversion of
8 the files that were produced in the discovery process?
9 A. I did. The DVDs and some of the CDs were created, more
10 DVDs and CDs, I was part of that process of burning those and
11 providing those to the U.S. Attorney's office, yes.
12 Q. But you didn't personally do the conversions, correct?
13 A. No, I did not do the conversions.
14 Q. You were asked on redirect examination whether you changed
15 any SRI's, correct?
16 A. That's correct.
17 Q. You were asked whether, to your knowledge, anybody had
18 changed SRIs, correct?
19 A. That's correct.
20 Q. You were asked whether you changed any audio files using
21 GoldWave, correct?
22 A. That's correct.
23 Q. And you were asked whether, to your knowledge, anybody did,
24 correct?
25 A. That's correct.
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1 Q. Is your testimony today that there is no audit trail file
2 in the New York field office that requires that if a file is
3 changed, that there be an audio record of that?
4 A. As I attested to previous, I don't believe we have anything
5 like that, no.
6 MR. TIGAR: No further questions.
7 THE COURT: All right. Ms. Baker, limit it to
8 recross.
9 REDIRECT EXAMINATION
10 BY MS. BAKER:
11 Q. Agent Kerns, just so there's no confusion about conversion,
12 what was done and how many times it was done, for any one tape
13 that was made by the Lockheed Martin system, how many times did
14 any one tape go through conversion to take the recordings on
15 the tape and put them into VOC format?
16 A. If a tape went through, it was converted once. That's all
17 you would have to do it. If the tape only ran a percentage and
18 stopped, and -- as I testified to I believe on Monday -- and
19 the computer crashed, we would then attempt to do it again,
20 start from scratch. You always started from the beginning
21 again. And once it ran 100 percent, it was done. The MO's
22 then were taken out and they were put together with the
23 original tape.
24 Q. Sometime in advance of the trial of this case, were you
25 involved to some degree in providing copies of all of the
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1 recordings from the surveillances in this case?
2 A. Yes.
3 Q. Was it your understanding that copies of those recordings
4 would be provided --
5 MR. TIGAR: Objection. Personal knowledge, your
6 Honor.
7 THE COURT: All right.
8 MS. BAKER: Your Honor, it's offered for its effect on
9 the witness.
10 THE COURT: No, overruled -- no, sustained.
11 BY MS. BAKER:
12 Q. When you were involved in that process of making copies of
13 recordings long ago in advance of trial, were you making
14 multiple copies of the recordings?
15 A. Every single time we did it, yes.
16 Q. And to whom were you providing the multiple copies of the
17 recordings?
18 A. To the U.S. Attorney's office.
19 Q. What was your understanding of what was being done with the
20 copies of the recordings?
21 A. They were keeping some for themselves. They were keeping a
22 set for themselves. It was being provided to the defense
23 attorneys. That was pretty much it.
24 Q. And the conversion process from the original Lockheed
25 Martin tapes to the VOC files did, that occur with each tape
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1 before any of the recordings were ever copied to those earlier
2 sets of disks that you provided to the U.S. Attorney's office?
3 A. I'm sorry, Miss Baker, I don't -- could you restate that
4 for me?
5 Q. Sure. Let me withdraw the question and see if I can ask it
6 a better way.
7 The conversion of the original Lockheed Martin
8 recordings from their original format on tape to the VOC
9 format?
10 A. Uh-huh.
11 Q. Did that conversion process occur back before any sets of
12 copies of any of the recordings were ever made, or was that
13 something that just was done more recently in connection with
14 copying recordings for use at trial?
15 A. No. The conversion, we had to convert it in order to get
16 the information into VOC format so that we could then provide
17 it to the defense. So that process was ongoing, as tapes were
18 converted and put on MO's, those MO's were then -- there was a
19 process of getting the information from this case off those
20 MO's, putting them on CDs and DVDs and then providing it to the
21 U.S. Attorney's office. It was a process that was going along
22 the whole time.
23 Q. And more recently, when you were asked to make certain --
24 to copy certain recordings to DVD for use at trial, did you go
25 back -- were conversions redone or were you using MO's that
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1 resulted from the conversions that had been done previously?
2 A. No. They were all conversions that had been done
3 previously. I just -- I found the MO's to be labeled and then
4 copied the information to position Number 2 on the diagram, and
5 then burned the DVDs and provided them to the U.S. Attorney's
6 office.
7 MS. BAKER: Thank you.
8 MR. TIGAR: May I ask one question, your Honor?
9 THE COURT: One. Limited to redirect.
10 MR. TIGAR: May I approach?
11 THE COURT: Yes.
12 RECROSS EXAMINATION
13 BY MR. TIGAR:
14 Q. Placing in front of you what I've now marked as LS20, which
15 you have previously testified about --
16 A. Correct.
17 Q. -- from what source were the files on LS20 copied?
18 MS. BAKER: May I see it?
19 THE COURT: Yes.
20 MR. TIGAR: I'm sorry, your Honor.
21 A. They were copied from another CD just like this, and I
22 made, I think, two or three copies and then provided them to
23 the U.S. Attorney's office.
24 Q. They were not copied from EMT's?
25 A. No, they were copied from the original tapes. That's the
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1 only way you could get this information. They were taken --
2 it's my understanding they were taken off the tapes and then
3 copied to a CD that was provided.
4 Q. When? That happened during your honeymoon?
5 A. Right. They started after Mr. Elliott's testimony. They
6 came to New York, I was told.
7 MR. TIGAR: Thank you, your Honor. Nothing further.
8 MS. BAKER: Nothing further.
9 THE COURT: All right.
10 MS. BAKER: And the government renews its offer of
11 1300, 1301 and the portions of each of the recordings thereon
12 as I described earlier, along with the two lists, 1300L and
13 1301L.
14 MR. TIGAR: We'd like to be heard with respect to the
15 instruction, your Honor.
16 THE COURT: All right. Ladies and gentlemen, it's
17 time for lunch. We will break until 2:00 o'clock. Please
18 remember my continuing instructions, not to talk about the
19 case, keep an open mind. See you after lunch. All rise,
20 please.
21 Please follow Mr. Fletcher to the jury room.
22 (The jury exits the courtroom)
23 (In open court; jury not present)
24 THE COURT: Agent, you may step down.
25 THE WITNESS: Thank you, your Honor.
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1 MR. TIGAR: Your Honor, in light of the Court's ruling
2 on admissibility, and order on admissibility of the prior
3 diskettes, I can't say that this testimony is materially
4 different. I think we have some more questions we would raise,
5 particularly about the manual creation of SRI's, but I
6 understood your Honor's ruling to sweep rather broadly across
7 this area. Of course, we disagree with it and we've preserved
8 our position. But I'm not going to waste the Court's time
9 unless the Court has questions. But we would ask if the Court
10 is going to admit this evidence that it give the same
11 instruction as it did last time. We do have questions. We
12 have raised them. We will be putting on something in the
13 defense case. And that's where it sits.
14 THE COURT: All right. Does anyone else want to be
15 heard?
16 MS. BAKER: Your Honor, I just wanted to note for the
17 record, there was no testimony about manual creation of SRI.
18 It was only manual naming of the files.
19 THE COURT: All right. My recollection last time is
20 that with respect to the lists, which would be the equivalent
21 of what's now been presented to me as Government Exhibits 1300L
22 and 1301L, there were no objections to the counterparts to
23 that, to 1000. No objections to 1300L and 1301L. And the
24 objections with respect to 1300 and 1301 are the same I passed
25 on with respect to the other equivalent exhibits.
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1 MR. TIGAR: Your Honor, the reason that I didn't
2 single out the "L" exhibits is that they are simply a minor
3 reformatting of what would appear in the directory file of the
4 relevant diskettes. I mean, you read right-to-left across, it
5 contains exactly the same information. So that if the
6 diskettes or DVDs are in, we can't maintain an objection to the
7 "L" exhibits. We do object to them, but only derivative of our
8 objection to the DVDs.
9 THE COURT: Okay. Well then for all the reasons that
10 I've previously explained, I'll admit 1300, 1301, 1300L and
11 1301L, subject to the same limiting instruction that I gave to
12 the previous parallel exhibits.
13 (Government's Exhibits 1300, 1301, 1300L and 1301L
14 received in evidence)
15 MR. TIGAR: And, your Honor, just to -- so that I'm
16 clear, I had understood that if, as the conversation comes
17 along, we want to make a hearsay objection or other objection
18 that's internal to the conversation, that those opportunities
19 are still there. Obviously in a case of this kind, that
20 objection gets done at the end of the day here.
21 THE COURT: Well, what I said was, last time, that
22 it's -- that the objections that I was passing on were
23 objections that were made. And those were authenticity
24 objections. I specifically accepted objections to the content
25 of the calls, 106 objections, and any other objections that
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1 might be made to the content of the call. Because I
2 couldn't -- no one had raised those objections at that time,
3 and I didn't think that the parties had waived any objections
4 to the content of the calls. And the parties are welcome to
5 raise those objections at the time, and any objections should
6 be raised. I've already passed on at least one objection.
7 I've listened to other objections as the calls have gone on.
8 We've discussed 106 objections. And so I'm not passing on the
9 content of the calls, and the defendants are free to raise such
10 objections at any appropriate time.
11 MR. TIGAR: Thank you, your Honor.
12 THE COURT: Anyone else want to be heard? All right.
13 Can I talk with the lawyers at the sidebar for a moment?
14 (At the sidebar)
15 THE COURT: Mr. Fletcher advises me that juror who
16 sits in seat Number 10, I believe Juror 146, that a very close
17 friend of the juror's spouse who's like a parent is terminally
18 ill and the juror may have to attend a funeral outside the
19 country, and it's simply something that I will have to add that
20 to something to be explored with the juror after lunch.
21 MR. TIGAR: Thank you.
22 MR. DEMBER: Thank you, your Honor.
23 THE COURT: Okay. See you after lunch.
24 (Luncheon recess)
25 (Continued on next page)
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47JLSAT4
1 (Whereupon, previous pages 3873 - 3880 were sealed,
2 by Order of the Court)
3 (In open court; jury not present)
4 THE COURT: I'm sorry, Ms. Shellow Levine and
5 Mr. Barkow is okay, at the sidebar.
6 (At the sidebar)
7 THE COURT: I'm going to seal that portion of the
8 transcript which talks about the jurors' personal affairs.
9 MR. BARKOW: Yes, Sir.
10 MS. SHELLOW-LAVINE: Of course.
11 (In open court; jury not present)
12 THE COURT: Thank you.
13 All right. Please be seated, all.
14 MR. TIGAR: Your Honor, Mr. Dember and I did have a
15 chance to talk during the luncheon break, and at the end of the
16 day today, we've agreed it would be helpful to bring to your
17 Honor's attention the kinds of issues that are going to arise
18 here with respect to these prison calls, visits, and so on in a
19 nonadversarial way, but just to lay out the different
20 difficulties that we've perceived coming up.
21 THE COURT: That's fine. Let me ask a question. Are
22 there -- is there going to be a stipulation with respect to the
23 transcripts that correspond to Government Exhibits 1300 and
24 1301? I raise that just because I can do it in the same way
25 that I did for 1000 and 1015, which is to say that exhibits
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1 1000 and 1015 -- I'm sorry, Exhibits 1300 and 1301, 1300L and
2 1301L, are received in evidence, subject to any objections, any
3 specific objections, with respect to the content of the
4 telephone calls. At such time -- that's the end of the
5 instruction there.
6 At such time as 1300, 1301 are played along with
7 transcripts, I will give the lengthier instruction about the
8 authenticity and accuracy of recordings and the way in which
9 the jury is to consider transcripts, which are conversations
10 not in English, and transcripts of English conversations.
11 I just -- that's the way I'll do it, because that's
12 the way it was done the last time, I think.
13 MS. BAKER: If your Honor wishes to do it at that way,
14 the government does not object. The other alternative that
15 occurs to me, if your Honor thinks it will be cleaner and
16 easier, what we really wanted today was to establish the
17 authenticity, have any objection to the authenticity raised,
18 and which has been accomplished -- it's not critical to our
19 purpose today that the jury be told right now that the
20 recordings are in. So if your Honor thinks it would be easier
21 to wait until we get to the presentation of each particular
22 recording, your Honor could then formally admit each recording
23 at that time. It only mattered to us to resolve all of the
24 authenticity admissibility issues today.
25 MR. TIGAR: Your Honor, we certainly agree with so
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1 much of that as says we don't need to do it today. We would
2 like to have, of course, the same general instruction with
3 respect to tapes which we would agree that, as before, need
4 only be given once, and perhaps the best time is when they play
5 the first one.
6 If your Honor has asked whether there's going to be a
7 global agreement about transcripts, we received a whole bunch
8 of those over the weekend, and for us, it's simply a question
9 of checking and making sure, before we go forward. I think one
10 can anticipate something similar to what happened last time.
11 THE COURT: Well, why don't I, just because these were
12 offered right before, do it the same way I did it before and
13 nothing will be played for the jury at this point. Exhibits
14 1300 and 1301 and 1300L and 1301L received in evidence subject
15 to the specific objections with respect to the content of the
16 telephone calls, and I'll tell the jury before any of these
17 recordings are played, they would be played with transcripts,
18 and I will give you a similar limiting instruction with respect
19 to the telephone recordings and the transcripts as I've given
20 you before, but I don't believe that one of those recordings is
21 going to be played today. Is that satisfactory?
22 MR. TIGAR: To the defense, yes, your Honor.
23 MS. BAKER: Yes, your Honor.
24 THE COURT: Okay. Where are we going then after I do
25 that?
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1 MR. MORVILLO: Your Honor, we have three witnesses
2 here from the FBI, Minnesota, who are prepared to testify.
3 THE COURT: Okay.
4 MR. MORVILLO: Would you like me to call the first one
5 to the stand, have him take a seat?
6 THE COURT: Yes, and let's bring in the jury.
7 (Jury entering the courtroom)
8 THE COURT: All right. Please be seated all.
9 Good afternoon, ladies and gentlemen.
10 JURORS: Good afternoon.
11 THE COURT: Good to see you all. Ladies and
12 gentlemen, Government Exhibits 1300 and 1301, 1300L and 1301L,
13 are received in evidence subject to any specific objection with
14 respect to the content of any of the telephone calls.
15 Ladies and gentlemen, as you've heard, there are
16 telephone recordings on 1300 and 1301L. And these will be
17 subject to similar limiting instructions with respect to the
18 recordings that I gave you with respect to 1000 and 1015, and
19 there will likely be transcripts that go along with those
20 recordings, and I've given you instructions -- limiting
21 instructions with respect to how to use transcripts of foreign
22 languages, Arabic recordings, and how to use transcripts as an
23 aid when English recordings are played. And I will give you
24 those specific instructions before the first recording that
25 appears on Government Exhibit 1300 or 1301 is played for you,
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1 but I don't expect that any of those recordings will be played
2 today, so I won't give you that instruction yet. Before the
3 first one of those recordings is played, I will give you those
4 instructions.
5 All right. The government can call its next witness.
6 MR. MORVILLO: Your Honor, at this time the government
7 would call Cynthia McGrath.
8 (Witness sworn)
9 DEPUTY CLERK: You may be seated. Please state your
10 full name for the record.
11 THE WITNESS: Cynthia McGrath.
12 DEPUTY CLERK: Thank you.
13 THE COURT: Mr. Morvillo, you may examine.
14 MR. MORVILLO: Thank you, your Honor.
15 CYNTHIA MCGRATH,
16 called as a witness by the Government,
17 having been duly sworn, testified as follows:
18 DIRECT EXAMINATION
19 BY MR. MORVILLO:
20 Q. Good afternoon, Miss McGrath.
21 A. Good afternoon.
22 Q. How are you employed?
23 A. I'm a special agent with the Federal Bureau of
24 Investigation.
25 Q. And how long have you been a special agent with the FBI?
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1 A. 14 years.
2 Q. Where are you currently assigned?
3 A. I'm currently assigned to Minneapolis, field division.
4 Q. Minneapolis, Minnesota?
5 A. Yes.
6 Q. And how long have you been assigned to the Minneapolis
7 field division of the FBI?
8 A. For 14 years.
9 THE COURT: Please, keep your voice up.
10 BY MR. MORVILLO:
11 Q. Agent McGrath, are you assigned to a particular unit or
12 division with the FBI?
13 A. I'm currently assigned to the foreign counter-intelligence
14 squad.
15 Q. And how long have you been assigned to that squad?
16 A. Approximately two years.
17 Q. Directing your attention to February 19th of 2000, what
18 unit or division were you assigned to at that time?
19 A. The squad at that time was the foreign counter-intelligence
20 and counter-terrorism squad.
21 Q. On that day, what was your assignment?
22 A. I was assigned to go down to the federal medical center in
23 Rochester, Minnesota, and record a visit at the prison.
24 Q. And incidentally, what day of the week, if you recall, was
25 February the 19th of 2000?
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1 A. That was a Saturday.
2 Q. Were you working by yourself that day?
3 A. No, I was not. I was working with Agent Brian Bartholmey
4 from the Rochester office.
5 Q. Is that B-a-r-t-h-o-l-m-e-y?
6 A. Yes.
7 Q. Why did you go to Rochester, Minnesota that day?
8 A. A court order had been issued for us to record the visit
9 between Sheikh Abdel Rahman, the interpreter and an attorney.
10 Q. What did you do when you got to the FMC in Rochester that
11 day?
12 A. When we arrived, we went into the entrance area and signed
13 the logbook.
14 MR. MORVILLO: May I approach, your Honor?
15 THE COURT: Yes.
16 BY MR. MORVILLO:
17 Q. Agent McGrath, I've just handed you what's been marked for
18 identification as Government Exhibits 1760 and 1760C. I'd ask
19 you to take a look at those and let me know whether you
20 recognize them.
21 A. Yes, I recognize them.
22 Q. What is Government Exhibit 1760?
23 A. 1760 is the official visitors' record book, and it says
24 Closed, 3-1-01.
25 Q. Is that the logbook that you saw on February 19th, 2000?
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47JLSAT4 McGrath - direct
1 A. Yes, it is.
2 Q. Could you turn to the first tabbed page in that book? Do
3 you recognize that page?
4 A. Yes, I do.
5 Q. What is that page, if you could describe it?
6 A. It's the page on which I signed when I arrived at the FMC.
7 Q. If you would now look at Government Exhibit 1760C. Do you
8 recognize that?
9 A. Yes.
10 Q. What is that?
11 A. It's a photocopy of the pages I just looked at in the
12 logbook.
13 Q. Is that a true and accurate photocopy of that page?
14 A. Yes, it is.
15 MR. MORVILLO: Your Honor at this time the government
16 would offer into evidence Government Exhibit 1760C.
17 THE COURT: No objection. Government Exhibit 1760C
18 received in evidence.
19 (Government's Exhibit 1760C received in evidence)
20 Q. Agent McGrath, directing your attention to 1760C, do you
21 see where you signed in?
22 A. Yes, I do.
23 Q. And can you read your name?
24 A. Cynthia M. Whiteside.
25 Q. And is that your maiden name?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 McGrath - direct
1 A. Yes, it is.
2 Q. And what other information is contained in the signature
3 line where you signed in?
4 A. My signature, and then that I was with the FBI Minneapolis.
5 The date, February 19th, 2000. And time in, 7:40 a.m. And the
6 time out, at 3:13 p.m.
7 Q. And did you sign in with anyone else?
8 A. I did. I signed in with Brian Bartholmey.
9 Q. And is his signature also on this page, on this document?
10 A. Yes.
11 Q. You can put that aside. Where did you go after you signed
12 in?
13 A. After we signed in, we went into the security building,
14 into the basement, into an office, across from the warden's
15 conference room.
16 Q. When you say the security building, is that a separate
17 building from where you entered?
18 A. Yes, it is.
19 Q. And do you know whose office that was that you went to?
20 A. Her name was Kara Christenson.
21 Q. When did you go into that office?
22 A. That is where the recording equipment had been set up.
23 Q. Did you set up that equipment?
24 A. No, I know not.
25 Q. Could you please describe for the jury what Miss
SOUTHERN DISTRICT REPORTERS, P.C.
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1 Christenson's office looked like on February 19th, 2000?
2 A. Sure. It's not a very big office. We entered the room.
3 To the left was the stand on which the recording equipment was.
4 And not very far into the room was a desk with a chair behind
5 it and a computer. And there was a window behind the desk.
6 The room is below grade, except up to the point where the
7 window is.
8 Q. Were there any other windows in the office?
9 A. There was a window onto the hallway but that was covered
10 with a blind.
11 Q. And in relation to Miss Christenson's office, where was the
12 conference room?
13 A. It was catty-corner from Kara's office.
14 Q. You said that there was recording equipment set up in
15 there?
16 A. Yes.
17 Q. Can you describe that to the jury?
18 A. Sure. There was a stand, and then there were two decks,
19 and then on top of that was a black-and-white monitor.
20 Q. What type of decks were they, do you know?
21 A. Recording decks that you put the tapes in. I don't know
22 the make.
23 Q. Did you bring cassette tapes with you to the prison that
24 day?
25 A. No, they were left by the agents who set up the equipment.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 McGrath - direct
1 Q. Do you have any training in technology?
2 A. No, I don't.
3 Q. Did there come a time when the meeting in the conference
4 room that you were there to record actually began?
5 A. Yes.
6 Q. What did you do at that time?
7 A. At the time that the meeting began, I opened the tapes and
8 put them in the deck. The -- I turned the power on and pressed
9 record on both decks.
10 Q. Do you know why there were two decks?
11 A. There's -- it's standard procedure. You have two decks for
12 two reasons: One is in case there's a malfunction, the second
13 deck could cover; and also, if you -- the meeting goes long and
14 you need to change tapes, while you change the first tape,
15 the -- while you're taking out Tape A, Tape B is still
16 recording, so you'd replace Tape A and then you would take
17 Tape B out and put the other -- the next copy in.
18 Q. So then while you're changing Tape A, Tape B is recording?
19 A. Exactly. So there's no gap.
20 Q. What happened when you pressed "record" on the two tape
21 decks?
22 A. The recording began. The recording of the meeting began.
23 Q. And how do you know?
24 A. You listen -- there is a headset there. You listen in to
25 make sure you could hear sound. And then the meters on the
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 McGrath - direct
1 decks were moving, the needles were moving.
2 Q. Did you listen to the entire meeting?
3 A. No.
4 Q. What was the purpose for you listening?
5 A. Just to make sure that the recording was being made.
6 Q. Did there come a time during this meeting when you needed
7 to switch the tapes in the tape deck?
8 A. Yes.
9 Q. Can you please explain to the jury the process of switching
10 the tapes?
11 A. When we realized we needed to change the tape, I opened up
12 a new tape, two packages, labeled them Tape 2, A and B.
13 Stopped the tape in Tape A, in Deck A. Took that tape out.
14 Put the second tape in. And then I did the same for Deck B,
15 taking the first tape out and putting the second tape into
16 Deck B and recording again.
17 Q. What did you do with each tape after you removed them from
18 the tape decks?
19 A. I put them in the case and kept them so I could take them
20 back with me when I left.
21 THE COURT: Please keep your voice up.
22 Q. Were they labeled?
23 A. They were labeled Tape 1, I believe -- they were labeled by
24 tape number and then the deck number, and the date.
25 Q. Did you label them yourself?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 McGrath - direct
1 A. Yes, I did.
2 MR. MORVILLO: May I approach, your Honor?
3 THE COURT: Yes.
4 BY MR. MORVILLO:
5 Q. Agent McGrath, I've just handed you what's been marked for
6 identification purposes as Government Exhibits 1700, 1701,
7 1702, 1703 and 1704 and 1705. I'd ask you to take a look at
8 those and let me know whether you recognize them.
9 A. Yes, I recognize them.
10 Q. How do you recognize them?
11 A. It's my handwriting on the labels.
12 Q. What are they?
13 A. They are tapes from -- dated February 19th, 2000, and there
14 are three sets of tapes, each from Deck A and Deck B.
15 MR. MORVILLO: Your Honor, at this time the government
16 would offer into evidence government exhibits 1700, 1701, 1702,
17 1703, 1704 and 1705, those portions that correspond to the
18 transcripts of these recordings that will be introduced into
19 evidence later.
20 THE COURT: All right. No objections?
21 MR. TIGAR: Yes, your Honor.
22 THE COURT: Oh, sorry.
23 MR. TIGAR: This is the issue that we discussed this
24 morning.
25 THE COURT: Okay.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JLSAT4 McGrath - direct
1 MR. TIGAR: And I'd like to be heard on it. I think
2 it should be done out of the presence of the jury.
3 THE COURT: All right.
4 MR. TIGAR: According to the rules.
5 THE COURT: I'll reserve on 1700 through 1705.
6 (Continued on next page)
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25
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. Ms. McGrath, what did you do after the meeting concluded?
2 A. After the meeting concluded I removed the final tapes from
3 the machine, the decks, both deck A and deck B, packaged them
4 in a box and then took them with me, placed them in the trunk
5 of my car and secured it with a lock, and then returned home.
6 Q. Once you returned back to the office, when was the next day
7 that you were at work?
8 A. It was Monday.
9 Q. February 21st?
10 A. Yes.
11 Q. Did there come a time when you sent these tapes to the home
12 office?
13 A. Yes.
14 Q. Do you know when that was?
15 A. I can't recall specifically the date. I believe it was
16 that Monday.
17 Q. Is your recollection exhausted on that?
18 A. I am sorry?
19 Q. Do you have a specific recollection?
20 A. I recall dictating what we call the electronic
21 communication to transmit the tapes but I can't recall a
22 specific date that it was typed on.
23 Q. If you saw that document, would that refresh your
24 recollection?
25 A. Yes, it would.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 MR. MORVILLO: May I approach, your Honor?
2 THE COURT: Yes.
3 Q. Agent McGrath, I have handed you what has been marked for
4 identification as Government Exhibit 3555C. I would ask you to
5 read that to yourself, take a look at it, and after you finish
6 let me know.
7 Have you looked at it?
8 A. Yes, I have.
9 Q. Does looking at that document refresh your recollection?
10 A. Yes, it does.
11 Q. As to when you sent the recordings?
12 A. Yes, I sent the recordings on February 23, 2000.
13 Q. Incidentally, Agent McGrath, how many tapes did you make on
14 February 19, 2000?
15 A. There are 6.
16 Q. And what does that consist of?
17 A. It consists of one tape or, excuse me, two tapes from --
18 how do I explain this? There are 2 decks and so there were
19 three times we had to switch tapes. I don't know if that is
20 clear enough.
21 Q. So is it fair to say that there are essentially three
22 segments of the meeting?
23 A. Yes, from start to the end.
24 Q. Do you recall how long the meeting lasted that was
25 recorded?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 A. I don't recall. I left at I believe it said 3:13, so I
2 think the meeting probably ended around 3.
3 Q. And do you recall what time the meeting began?
4 A. I believe around 10 or 10:30.
5 Q. Now, you just testified a moment ago that on February 23rd
6 you sent these tapes somewhere. Where did you send them?
7 A. To the New York field office.
8 Q. Do you know to whose attention you sent them?
9 A. To Kim Whittle.
10 Q. Who is Kim Whittle?
11 A. She is the case agent.
12 Q. Did you retain any copies of these tapes in your office in
13 Minneapolis?
14 A. No.
15 Q. Did you ever see these tapes again until today?
16 A. No.
17 Q. Now, directing your attention to May 19, 2000, were you
18 working that day?
19 A. Yes, I was.
20 Q. What was your assignment on that day?
21 A. Again, I was assigned pursuant to a court order to go to
22 the medical center in Rochester and record the meeting between
23 Sheikh Abdel Rahman and --
24 MR. TIGAR: Your Honor, objection to secondary --
25 THE COURT: All right, sustained.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. Why did you go to FMC Rochester on May 19, 2000?
2 A. To record a meeting between Sheikh Abdel Rahman, the
3 interpreter, and the attorney.
4 Q. Did you sign anything?
5 A. Yes, I did.
6 MR. MORVILLO: May I approach, your Honor?
7 THE COURT: Yes.
8 Q. Agent McGrath, I have just placed before you what is marked
9 for identification as Government Exhibit 1760D. Do you still
10 have 1760 up there?
11 A. Yes, I do.
12 Q. Can you open that to the second half page?
13 A. Yes.
14 Q. Do you recognize that page?
15 A. Yes, I do.
16 Q. What is it?
17 A. It's a page on which I signed when I went to the FMC on May
18 19, 2000.
19 Q. And directing your attention to 1760D, what is that?
20 A. It's a photocopy of that page.
21 Q. Is it a true and accurate photocopy of that page?
22 A. Yes, it is.
23 MR. MORVILLO: Your Honor, the government offers
24 Government Exhibit 1760D at this time.
25 MR. TIGAR: May I just inquire briefly, your Honor?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 THE COURT: All right.
2 MR. TIGAR: May I inquire of counsel? I may be able
3 to shorten this.
4 THE COURT: Sure.
5 MR. TIGAR: Thank you, your Honor.
6 THE COURT: All right, no objection. Government
7 Exhibit 1760D received in evidence.
8 (Government's Exhibit 1760D received in evidence)
9 Q. Agent McGrath, where on --
10 THE COURT: Hold on.
11 Go ahead.
12 Q. Where on 1760D does your name appear?
13 A. It appears -- my printed name and my signature appear
14 signing in at 9:35.
15 MR. MORVILLO: Your Honor, may I publish this to the
16 jury?
17 THE COURT: Yes.
18 Q. Agent McGrath, if you look at the monitor in front of you,
19 and if you touch the screen, it should indicate where your name
20 is. I said "should". There, okay.
21 Again, the entry there is Cynthia Whiteside?
22 A. Yes, that is correct. That is my maiden name.
23 Q. That is the signature next to your printed name?
24 A. Yes.
25 Q. And reading across from your signature where the blue dot
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 now is, is that the date you signed that?
2 A. Yes, it is.
3 Q. What day is that?
4 A. May 19, 2000.
5 Q. What time did you sign in?
6 A. 9:35 a.m.
7 Q. What time did you sign out?
8 A. 3:20 p.m.
9 Q. During that time frame, between 9:35 a.m. and 3:20 p.m.,
10 did you actually record a meeting?
11 A. Yes, I did.
12 Q. And approximately when did that meeting begin and when did
13 that meeting end?
14 A. It began approximately 10 a.m. and ended around 3 o'clock.
15 Q. Were you working with anyone else that day?
16 A. Yes, I was working with my supervisor, Chris Briese.
17 Q. Does his signature also appear on Government Exhibit 1760D?
18 A. Yes, it does.
19 Q. After you signed in on May 19, 2000, what did you do?
20 A. We went back to the security building and into the
21 basement, back into Kara Christenson's office.
22 Q. That is the same office that you used on February 19, 2000?
23 A. Yes.
24 Q. Was there anything different about that office this time?
25 A. No.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. The same equipment was set up there?
2 A. Yes, the same equipment was set up.
3 Q. Incidentally, Agent McGrath, do you know what type of
4 recording you made on February 19, 2000, whether it was audio
5 or video or both?
6 A. I am not sure to tell you the truth. All I know is I put
7 the tapes in. They said video cassette on the tape. I don't
8 know if it was video or just audio.
9 Q. And with respect to May 19, 2000, do you know what type of
10 recording you were making that day?
11 A. Again, I think it was just audio. I am not positive
12 though.
13 Q. With respect to the recordings that you made on May 19,
14 2000, did you employ the same procedures that you employed on
15 February 19, 2000?
16 A. Yes, I did.
17 Q. When did you begin the recording on May 19, 2000?
18 A. We began the recording when the meeting started.
19 Q. And how do you know when the meeting started?
20 A. Again, there was a monitor in the room we were in in the
21 office and when they sat down we turned the power on and hit
22 "record" on both decks.
23 Q. And, again, on the May 19 visit did you check to make sure
24 that the recording equipment was operating?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. And how did you do that?
2 A. Again, we listened to see if there was anything coming over
3 through the headphone and then also looked at the meter on the
4 decks.
5 Q. Other than that did you monitor this meeting?
6 A. No.
7 MR. MORVILLO: May I approach, your Honor?
8 THE COURT: Yes.
9 Q. Agent McGrath, I have just handed you what has been marked
10 for identification as Government Exhibits 1706, 1707, 1708 and
11 1709. Do you recognize those materials?
12 A. Yes, I do.
13 Q. How do you recognize them?
14 A. My handwriting is on it.
15 Q. And what kind of information did you put on there?
16 A. I have the tape number, whether it was the first or second
17 tape, the letter corresponding to the deck, the date, which is
18 5/19/2000, FMC for Federal Medical Center, and then my
19 initials.
20 Q. What are these materials?
21 A. These are the tapes that we recorded on that day.
22 Q. On May 19, 2000?
23 A. Yes, on May 19, 2000.
24 MR. MORVILLO: Your Honor, the government would offer
25 Government exhibits 1706, 1707, 1708 and 1709.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3903
47JSSAT5 McGrath - direct
1 MR. TIGAR: We respectfully request the court to
2 reserve.
3 THE COURT: Okay.
4 I will reserve on Government Exhibits 1706 through
5 1709.
6 Q. Agent McGrath, how many tapes did you make that day?
7 A. We made four total.
8 Q. And is that from one deck or from two decks?
9 A. That would be two decks, so two tapes from each deck.
10 Q. You testified previously that you believe the meeting ended
11 at around 3 o'clock?
12 A. Yes, I believe so.
13 Q. What did you do after the meeting ended?
14 A. I extracted the second tapes from the deck and put them in
15 another box and then secured them in the trunk of my car with a
16 chain.
17 Q. What did you do with the tapes after you returned to your
18 office in Minneapolis?
19 A. I believe I gave those to Vickie Bell. She is our clerk
20 who handles recordings and she made copies of them.
21 Q. And did there come a time when she gave them back to you?
22 A. Yes.
23 Q. Did she give you also copies?
24 A. Yes, she gave me the tapes I gave her, as well as the
25 copies.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. And what did you do with those original tapes and the
2 copies?
3 A. The original tapes were sent to headquarters in Washington,
4 D.C.
5 Q. When you say headquarters --
6 A. FBI headquarters. And then the copies were all sent to the
7 New York field office.
8 Q. Did you retain any copies or any of the originals in
9 Minneapolis?
10 A. No.
11 Q. Is this the first time that you are seeing these tapes
12 again here since you sent them to Washington?
13 A. Yes, it is.
14 Q. Do you recall when you sent them?
15 A. No, I don't.
16 Q. Do you recall about when you sent them?
17 A. It was -- the 19th is a Saturday, so around the 21st of
18 May, I would believe.
19 Q. Just a couple of days later?
20 A. Yes.
21 Q. Other than these two dates that you have testified about,
22 the February 19th prison visit and the May 19th prison visit,
23 both of 2000, did you ever record any other meetings between
24 Sheikh Abdel Rahman, his interpreter, and a lawyer?
25 A. I did not.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 Q. You did not personally?
2 A. No, not personally.
3 Q. With respect to both of those visits that you participated
4 in the recording of, did you remain in Ms. Christenson's office
5 during the entirety of the recording?
6 A. Yes.
7 Q. Did you ever at any time stop the tape before you changed
8 the tapes?
9 A. No.
10 Q. Directing your attention to July 2001, were you working at
11 that time?
12 A. No, I was not.
13 Q. Why not?
14 A. I was on my honeymoon.
15 Q. And when you returned from your honeymoon, did you take any
16 action with respect to the investigation in this case?
17 A. Yes, when I returned from my honeymoon that following
18 Monday I had been advised there had been a visit again at the
19 prison and so I dictated an electronic communication, or EC,
20 for the tapes that were recorded for that weekend and sent them
21 to New York.
22 Q. But you did not personally make the recordings?
23 A. No, I did not.
24 Q. You just transmitted the tapes to New York?
25 A. Yes.
SOUTHERN DISTRICT REPORTERS, P.C.
(212) 805-0300
3906
47JSSAT5 McGrath - direct
1 Q. To whose attention did you send those tapes?
2 A. Again, it was to Kim Whittle.
3 Q. Did you retain any copies of those tapes in Minneapolis?
4 A. No.
5 Q. And how soon after the visit that happened in July did you
6 send the tapes on to New York?
7 A. It was within a couple of days.
8 MR. MORVILLO: May I have a moment, your Honor?
9 THE COURT: Yes.
10 Q. Agent McGrath, was there a video monitor during the
11 February 19, 2000 visit?
12 A. I believe there was, yes.
13 Q. And how did you know when, during that visit, to begin the
14 recording?
15 A. Again when they sat down at the table is when we started
16 the recording.
17 Q. Is there anything that would refresh your recollection as
18 to what type of recording you did on February 19, 2000 and/or
19 May, 19, 2000?
20 A. I can look at the electronic communications that I sent.
21 That would probably help me.
22 MR. MORVILLO: May I approach, your Honor?
23 THE COURT: Yes.
24 Q. Agent McGrath, I have just handed you what has been marked
25 for identification as Government Exhibits 3555E and 3555C and I
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 would ask you to take a look at those and read them to yourself
2 and let me know when you are finished reading them.
3 Do either of those documents refresh your recollection
4 as to what type of recordings were made on the February 19
5 visit and the May 2000 visit?
6 A. The February 2000 was an audio tape. They were audio
7 tapes.
8 Q. And what about the May 2000 visit?
9 A. Unfortunately it just says tapes. It doesn't say audio or
10 video.
11 MR. MORVILLO: May I approach, your Honor?
12 THE COURT: Yes.
13 A. I am sorry, I just saw it in the line.
14 Q. Does that refresh your recollection as to what type of
15 recordings were made?
16 A. Yes, it does.
17 Q. Now that your recollection has been refreshed, what type of
18 recordings were they?
19 A. In May 2000 we did audio and videotape of the meetings.
20 MR. MORVILLO: May I have a moment, your Honor?
21 THE COURT: Yes.
22 MR. MORVILLO: Your Honor, I have no further
23 questions.
24 THE COURT: All right.
25 Actually, ladies and gentlemen, I notice some of you
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - direct
1 stretching. We can take a stretch break at this point.
2 (Pause)
3 THE COURT: All right, please be seated all.
4 Is there anything else?
5 All right. Mr. Ruhnke, you may examine.
6 CROSS EXAMINATION
7 BY MR. RUHNKE:
8 Q. Agent McGrath, good afternoon.
9 You are talking about three different occasions when
10 you were involved in the tape and/or video recording of
11 conversations?
12 A. I was only involved personally on two occasions.
13 Q. And one of those occasions was on February 19, 2000,
14 correct?
15 A. That is correct.
16 Q. Did you have any visual observations of the meeting in
17 progress?
18 A. There was a monitor there, yes.
19 Q. And could you see that there were three people in the
20 conference room that you were monitoring?
21 A. Yes.
22 Q. One of them was Sheikh Abdel Rahman, correct?
23 A. Right.
24 Q. And one man who was an interpreter and another man who was
25 the attorney, is that correct?
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - cross
1 A. That is correct.
2 Q. Did you come to know that the name of the attorney was
3 Abdeen Jabara?
4 A. Yes, I did.
5 Q. And the name of the interpreter was Mohammed Yousry?
6 A. Yes.
7 Q. Now, were you also aware that Mr. Jabara and Mr. Yousry had
8 visited Sheikh Abdel Rahman the day before at FMC Rochester?
9 February 18, 2000.
10 A. I wasn't there. I thought the 19th was the first visit.
11 Q. Do you know if anybody else from the FBI was there on
12 February 18, 2000 or any attempt was made --
13 A. I would have to look at the log book, sir.
14 Q. The log book, you mean the log book --
15 A. Yes.
16 Q. Just before I hand you that in a second, do you have any
17 knowledge if there were attempts made to tape record or video
18 record or otherwise monitor a meeting that occurred on February
19 18, 2000?
20 A. I was not part of that, no.
21 Q. So you have no knowledge of that?
22 A. No, I don't have any knowledge of that.
23 Q. Do you still want to see the log book?
24 A. Please.
25 MR. RUHNKE: May I approach, your Honor?
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47JSSAT5 McGrath - cross
1 THE COURT: Yes.
2 Q. I am handing you the exhibit, Government Exhibit 1760.
3 MR. MORVILLO: For the record, your Honor, that
4 exhibit is not in evidence. It's the photocopy, 1760C and D.
5 THE COURT: All right.
6 Q. Have you looked at that now?
7 A. Yes, I have.
8 Q. Does that help you at all as to whether there was an
9 attempt the day before?
10 A. Those are the --
11 MR. MORVILLO: Objection.
12 THE COURT: All right. Sustained.
13 Q. Does that help you refresh your recollection?
14 A. Yes.
15 Q. And what does your refreshed recollection tell us?
16 A. I don't believe there was a recording made that day.
17 Q. Okay. I have no more questions for you.
18 THE COURT: All right.
19 CROSS EXAMINATION
20 BY MR. TIGAR:
21 Q. Ms. McGrath, I would like to start by asking you about that
22 first surveillance that you were involved in in February of
23 2000, all right?
24 A. Okay.
25 Q. Now, Sheikh Abdel Rahman was there, right?
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1 A. That is correct.
2 Q. He was the prisoner.
3 A. Yes.
4 Q. And then Mr. Yousry was there, correct?
5 A. That is correct.
6 Q. And do you recognize him in court?
7 A. I believe he is the man wearing the gray vest.
8 Q. The sweater vest?
9 A. Yes.
10 Q. And the other person there was Mr. Abdeen Jabara, correct?
11 A. Yes.
12 Q. And you understood he was an attorney?
13 A. Yes.
14 Q. Ms. Stewart was not present, was she?
15 A.
16 A. No, sir.
17 Q. You didn't see her at all?
18 A. No, sir.
19 Q. And you testified that you did not set up the recording
20 equipment, correct?
21 A. That is correct.
22 Q. You had nothing to do with how the microphones were going
23 to be or where the camera was or any of that?
24 A. No, sir.
25 Q. That is not your field of endeavor, is it?
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1 A. No, sir.
2 Q. But you did have a monitor, right, where you could see what
3 was going on in there?
4 A. Yes.
5 Q. In addition to sometimes listening to make sure that the
6 audio was coming through, did you try to observe the behavior
7 of the people you were watching?
8 A. Occasionally we would look up to see what was going on.
9 Q. Now, did you become aware on the February 20th meeting that
10 it was supposed to start at 8:30 but didn't start until 10?
11 MR. MORVILLO: Objection. I believe that is the wrong
12 date.
13 THE COURT: I am sorry, I can't hear you.
14 MR. MORVILLO: I believe that is the wrong date, your
15 Honor.
16 THE COURT: February 19 I think is the date.
17 MR. TIGAR: Oh, okay. He is right, your Honor.
18 I withdraw the question.
19 Q. Did you cover a meeting that took place on the 20th of
20 February?
21 A. No, sir.
22 Q. Was anybody from your office involved in covering a meeting
23 on the 20th of February?
24 A. No, sir.
25 MR. TIGAR: May I approach, your Honor?
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47JSSAT5 McGrath - cross
1 THE COURT:: Yes.
2 Q. I am going to show you what has been marked as 3555C, and
3 this is not in evidence but I would like to ask you do you see
4 that date there?
5 A. It's a typo.
6 Q. Okay. Thank you.
7 You did make a report of this activity but as a typo,
8 it should be the 19th instead of the 20th?
9 A. Yes, sir.
10 Q. Now, based on that meeting on the 19th, did you become
11 aware that the meeting was supposed to start at 8:30 but didn't
12 start until 10?
13 A. Yes.
14 Q. Now, that is not information that you got from your
15 recording, is it?
16 A. No. We learned that from the prison officials because they
17 had to -- they had Sheikh Abdel Rahman ready to come down to
18 the meeting and because the two parties were running late, they
19 did not bring him down.
20 Q. So that is where you got that information, correct?
21 A. Yes.
22 Q. Now, in addition to that, you observed what Mr. Yousry was
23 doing during the morning hours, correct?
24 A. Yes.
25 Q. And you saw that he was reading to the client, to Sheikh
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1 Abdel Rahman, from Arab newspapers, correct?
2 A. That is what it appeared to be, yes, sir.
3 Q. And you made a note of that fact, correct?
4 A. Yes.
5 Q. And during how much of the time that the reading was going
6 on were you listening to it to be able to form that conclusion?
7 A. We weren't listening to it, sir. We were watching it on
8 the monitor.
9 Q. Well, if you are watching it on the monitor what led you to
10 the conclusion they were Arab newspapers?
11 A. Because we could see the print.
12 Q. And it didn't look like English letters, right?
13 A. Right.
14 Q. You don't speak Arabic, do you?
15 A. No, sir.
16 Q. And in the afternoon, you said that there was a discussion
17 in which Mr. Yousry asked Mr. Jabara to do something. I don't
18 want to get into what it is, but there was that discussion,
19 right?
20 Was that discussion that was captured on the tape or
21 was that outside the taping time?
22 A. I believe that was during the taping time.
23 Q. And was there a discussion of dropping something off?
24 A. Yes, there was.
25 Q. Was that during the taping time or after?
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47JSSAT5 McGrath - cross
1 A. I can't remember that, when that occurred to tell you the
2 truth, sir. I can't remember if it was before or after.
3 Q. Was it a part of your job there to listen to what was going
4 on and make observations in addition to doing the taping?
5 A. We felt that the New York office needed to know what was
6 going on; that newspapers were being read in violation of the
7 special agreement or rules. That is why we put those
8 observations down.
9 Q. Your conclusion was there was a violation of the rules,
10 right?
11 A. The rules said you cannot read a newspaper.
12 Q. Excuse me, Agent, your interpretation of the rules --
13 MR. MORVILLO: Your Honor, can the witness please
14 finish her answer?
15 THE COURT: Yes, the witness can finish.
16 MR. TIGAR: But --
17 THE COURT: Hold on. The witness can finish.
18 I think the answer was finished, and next question.
19 Q. Had you finished?
20 A. Yes, sir.
21 Q. The New York office had given you their interpretation of
22 events, correct?
23 A. We were told what was allowed.
24 Q. Did you ask Mr. Jabara what he thought was allowed?
25 A. No, sir, I did not speak to him.
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47JSSAT5 McGrath - cross
1 Q. And in your experience as an FBI agent you understand
2 sometimes people on different sides of the question can
3 disagree about what is allowed and what is not?
4 MR. MORVILLO: Objection.
5 THE COURT: Overruled.
6 A. Yes.
7 Q. Now, coming back, ma'am, to what you were doing, can you
8 remember whether or not you heard Mr. Jabara and Mr. Yousry
9 talking during a time when the talking wasn't being recorded?
10 A. I can't recall, sir.
11 Q. In addition to the ET or the memorandum 3555C, did you make
12 any FBI-302 or other memorandum of your investigative activity
13 on that day?
14 A. No, sir, I did not.
15 Q. Now let's go to the 19th of May. Did you see Ms. Stewart
16 on that day?
17 A. Yes, I did.
18 Q. And do you recognize her in court?
19 A. Yes, I do.
20 Q. And you see the lady here in the green dress?
21 A. Yes.
22 Q. And she was there that day with Mr. Yousry and meeting with
23 her client, correct?
24 A. That is correct.
25 Q. Now, those tapes you sent to both the New York field office
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5 McGrath - cross
1 and the FBI headquarters, correct?
2 A. Correct.
3 Q. The first set of tapes you sent only to the FBI field
4 office, right?
5 A. That is correct.
6 Q. And that was pursuant to instructions that you had?
7 A. Yes.
8 MR. TIGAR: Thank you very much.
9 No further questions, your Honor.
10 THE COURT: All right.
11 MR. MORVILLO: Nothing further, your Honor.
12 THE COURT: All right. The witness is excused. You
13 may step down.
14 (Witness excused)
15 THE COURT: All right. It's about 3:25, so we will
16 take our mid-afternoon break for ten minutes.
17 Ladies and gentlemen, please follow my continuing
18 instructions not to talk about the case. Keep an open mind.
19 All rise please.
20 Follow Mr. Fletcher to the jury room.
21 (Jury left the courtroom)
22 THE COURT: All right, we will take ten minutes.
23 (Recess)
24 (In open court; jury not present)
25 THE COURT: All right, please be seated all.
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47JSSAT5
1 THE COURT: I just wanted to check with the parties
2 that it was the parties' desire that I take up any issues that
3 I reserved on at the end of the day; that there is no reason to
4 do it now at the break as we are going through these witnesses.
5 MR. TIGAR: Your Honor, there is no reason to do it
6 now. I would like Agent McGrath not to leave the city until
7 after we have made some applications to your Honor today.
8 There was some material in the Jencks related to this FISA and
9 without having more information I didn't want to be tramping
10 all over her.
11 THE COURT: Okay.
12 MR. TIGAR: But if they would just hold her just in
13 case, we would appreciate it.
14 MR. MORVILLO: My understanding is that Agent McGrath
15 is not intending to leave until Wednesday, your Honor.
16 THE COURT: All right.
17 Let's bring the jury back.
18 MS. BAKER: Your Honor, a matter while we are waiting
19 for the jury.
20 I redacted Government Exhibit 508. I showed it to the
21 defense and they approved of the redactions and these are
22 copies of the redacted transcripts, if I can hand that up to
23 your Honor. I provided that to the defense as well.
24 THE COURT: All right.
25 Some of the jurors were complaining that the glare
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5
1 from the ELMO shines in their faces. Maybe you could just
2 slightly pull it back a bit.
3 Okay. Thank you.
4 (In open court; jury present)
5 THE COURT: Please be seated all.
6 The government should call its next witness.
7 MR. MORVILLO: Your Honor, the government calls
8 Richard Ostrom. (richard L Ostrom (O -S it are O am)
9 THE COURT: All right, Mr. Morvillo, you may examine.
10 Direct.
11 RICHARD L. OSTROM,
12 called as a witness by the Government,
13 having been duly sworn, testified as follows:
14 DIRECT EXAMINATION
14 47JSSAT5 Ostrom - direct
15 BY MR. MORVILLO:
16 Q. Mr. Ostrom, good afternoon.
17 A. Good afternoon.
18 Q. How are you employed?
19 A. I am employed as a supervisory special agent with the
20 Federal Bureau of Investigation.
21 Q. And how long have you been with the Federal Bureau of
22 Investigation?
23 A. Since June of 1978.
24 Q. And where are you currently assigned?
25 A. Minneapolis Division in Minneapolis, Minnesota.
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47JSSAT5
1 Q. And how long have you been assigned to the Minneapolis,
2 Minnesota division?
3 A. Since 1991, April '91.
4 Q. And you testified that you are a supervisory special agent?
5 A. Yes.
6 Q. What does that mean?
7 A. I supervise a squad of agents. Currently I supervise a
8 white collar crime squad and a small office called a resident
9 agency in Mankato, Minnesota. It's two agents that are
10 assigned in physically Mankato, Minnesota.
11 Q. Is a resident agency sometimes referred to as an RA?
12 A. Yes.
13 Q. How long have you been a supervisory special agent?
14 A. Since July 1996.
15 Q. And you have been with the FBI since June of '78?
16 A. Yes.
17 Q. What other offices have you been assigned to?
18 A. I have assigned to previously Chicago, New York and
19 Springfield, Illinois before Minneapolis.
20 Q. Directing your attention to May 20, 2000, what was your
21 assignment at that time? Withdrawn.
22 Directing your attention to May 20, 2000, were you a
23 supervisory special agent at that time?
24 A. Yes.
25 Q. Were you also in charge of the Mankato office at that time?
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47JSSAT5
1 A. I was in charge of the Rochester office, RA at that time
2 also and not Mankato. We had made a switch here later.
3 Q. What does it mean to be in charge of a resident agency?
4 A. I handle the administrative matters for those particular
5 agents in that small satellite office, the small RA, and
6 monitor their workload.
7 Q. And at the time in May 2000, do you recall who was assigned
8 to the Rochester RA?
9 A. It was Special Agent Dave Price and Special Agent Brian
10 Bartholmey.
11 Q. David Price as in P-R-I-C-E?
12 A. Correct.
13 Q. Directing your attention specifically to May 20, 2000, what
14 was your assignment that day?
15 A. I was assigned along with Special Agent Bartholmey to
16 travel to the Federal Medical Center in Rochester, Minnesota.
17 Q. What was the purpose of your travel to FMC Rochester?
18 A. A court order had been obtained to record a --
19 MR. TIGAR: Objection, your Honor.
20 THE COURT: Sustained.
21 Q. Why did you go to FMC Rochester that day?
22 A. Myself and Special Agent Bartholmey were going to record a
23 visit that was occurring at the Federal Medical Center in
24 Rochester.
25 Q. And was that visit authorized?
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47JSSAT5
1 A. Yes, it was.
2 Q. Withdrawn.
3 Was that recording authorized?
4 A. Yes, it was. It was authorized.
5 MR. TIGAR: Objection, and move to strike.
6 THE COURT: Sustained, strike it.
7 Q. What did you do on that day when you got to FMC Rochester?
8 A. Myself and Agent Bartholmey signed in at the front
9 entrance. We were escorted to a room inside the facility, I
10 think either the legal or the SIU room, and that is the room
11 where we were to record the conversation that was occurring in
12 a room across the hallway, a conference room across the
13 hallway.
14 Q. When you arrived at FMC Rochester, did you sign in?
15 A. Yes, I did.
16 MR. MORVILLO: May I approach, your Honor?
17 THE COURT: Yes.
18 Q. Agent Ostrom, I have just handed you what is marked as
19 Government Exhibit 1760D. It's in evidence.
20 Do you recognize that document?
21 A. Yes.
22 Q. What is it?
23 A. This is a color photograph of the official visitors' log
24 that I signed on May 20 upon entering the facility.
25 Q. Do you see your signature on that page?
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47JSSAT5
1 A. Yes, I do.
2 Q. What time did you sign in?
3 A. I signed in at 7:43 a.m.
4 Q. And what time did you sign out on that day?
5 A. 3:30 p.m.
6 Q. And between 7:43 a.m. and 3:30 p.m., did you actually
7 record a meeting?
8 A. Yes, between those hours a recording was made at the
9 prison, yes.
10 Q. You testified that after you signed in you went down to
11 another building and went to another division?
12 A. It was I think a legal office or SIS office within the
13 Federal Medical Center.
14 Q. And do you know whose office you went to?
15 A. I don't, no. No.
16 Q. When you went to that office, did you see the conference
17 room that was going to be the location for the meeting?
18 A. Yes, there was a conference room that was across the hall
19 and slightly down from the room that we were taping from.
20 Q. And when you went into this office, was there any recording
21 equipment set up in there?
22 A. Yes, the recording equipment had been set up previously.
23 Q. And what was in there?
24 A. There was two cassette type recorders side by side, I
25 believe, with a TV monitor set up.
SOUTHERN DISTRICT REPORTERS, P.C.
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47JSSAT5
1 Q. Did you bring tape cassettes with you that day?
2 A. Yes, they were high 8 or super 8 tapes were brought in with
3 us.
4 Q. Had you used a high 8 recorder before?
5 A. I don't know the answer to that. I have used many
6 recorders, many types. I suspect, yes, is the answer.
7 Q. Did there come a time when the meeting that you were there
8 to record began?
9 A. Yes.
10 Q. Were you alone in the room?
11 A. No, I was present with Special Agent Bartholmey.
12 Q. And what happened when the meeting began?
13 A. Once the meeting began Special Agent Bartholmey started the
14 tape machines. There were two machines separate. He started
15 the first one and then started the second machine recording.
16 Q. How did you know when to begin recording?
17 A. I believe the SIS officer had escorted everybody in there
18 and we knew that once the individuals were present we were
19 going to start the recording. We started the recording.
20 Q. Do you know if the equipment was working?
21 A. I assume it was working. The little dials, the voice
22 levels were going back and forth, and the tape was running.
23 Q. Did you monitor the meeting while it was occurring?
24 A. No.
25 Q. Do you know whether Agent Bartholmey monitored the meeting
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47JSSAT5
1 while it was occurring?
2 A. I do not believe he did at all either. No. I can say no.
3 Q. Were you present in that office during the entirety of the
4 meeting?
5 A. Yes.
6 Q. Did there come a time during the meeting when you needed to
7 switch the tapes?
8 A. Yes, the cassette tapes were running near the end so the
9 tapes were switched out first in the first recorder and then
10 once the first recorder was running again with the replacement
11 tape, the tape was switched out of the second recorder.
12 Q. Do you know what kind of recording was being done?
13 A. Audio and video?
14 Q. Yes.
15 A. Yes, it was my understanding audio and video was being
16 done.
17 MR. MORVILLO: May I approach, your Honor?
18 THE COURT: Yes.
19 Q. Agent Ostrom, I have just placed before you what has been
20 marked as Government Exhibit 1710, 1711, 1712, 1713, 1714, and
21 1715.
22 Do you recognize those materials?
23 A. Yes, I do.
24 Q. What are they?
25 A. These are the tapes that we used to record the meeting at
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47JSSAT5
1 the FMC on May 20.
2 Q. How do you recognize them?
3 A. On the tapes are the initials that I placed on there, my
4 own initials, and as well as I recognize Brian Bartholmey's
5 initials also.
6 Q. Incidentally, is there information on there that was not on
7 there at the time the recordings were made?
8 A. Yes.
9 Q. Do you know how that got there?
10 A. There is a Q number. No.
11 Q. How many total cassette tapes did you make that day?
12 A. Six total.
13 Q. And does that mean there were 6 segments of the meeting or
14 how come there are 6 tapes?
15 A. Here is tape number one. When it neared the end of
16 completion we swapped it out for tape number 2. When that tape
17 was nearing the end we swapped it out for tape number 3. The
18 second recorder likewise occurred, when that was nearing the
19 end and the first tape had been switched out, we switched out
20 number 1, number 2, and the final tape was number 3.
21 Q. So --
22 A. So this is the entire meeting that occurred on these 6
23 tapes.
24 Q. So is it fair so say that the three segments substantially
25 overlap with one another, the 6 tapes, tapes 1, 2 and 3 would
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47JSSAT5
1 overlap with tapes 4, 5 and 6?
2 A. Yes. In essence is the entire meeting recorded on these 6
3 tapes?
4 Q. Yes.
5 A. Yes, that is correct.
6 MR. MORVILLO: Your Honor, at this time the government
7 would offer Government Exhibit 1710, 1711, 1712, 1713, 1714 and
8 1715.
9 MR. TIGAR: We respectfully request that the court
10 reserve.
11 THE COURT: All right, I will reserve.
12 I will reserve on Government Exhibits 1710 through
13 1715.
14 Q. Incidentally, Agent Ostrom, do all those recordings have
15 your initials on them?
16 A. Yes, they do.
17 Q. While the recording was going on, did you ever leave that
18 room?
19 A. No, I did not.
20 Q. Did you ever do anything other than when changing the tapes
21 to stop the recorder?
22 A. No.
23 Q. What did you do with these tapes when the meeting was over?
24 A. I took those back to Minneapolis with me and turned them
25 over to Agent McGrath.
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47JSSAT5
1 Q. Is that Special Agent Cynthia McGrath?
2 A. Yes.
3 MR. MORVILLO: May I have a moment, your Honor?
4 THE COURT: Yes.
5 MR. MORVILLO: No further questions questions, your
6 Honor.
7 THE COURT: All right.
8 Mr. Tigar, you may examine.
9 MR. TIGAR: Thank you, your Honor.
10 CROSS EXAMINATION
11 BY MR. TIGAR:
12 Q. Agent Ostrom, the Agent McGrath that you gave the tapes to,
13 her name was Whiteside at that time?
14 A. Cindy Whiteside. That was her maiden name.
15 Q. She has been here. Thank you.
16 This room that you were in, it had a glass window that
17 gave out onto the hallway, is that correct?
18 A. Yes.
19 Q. Did you have the blinds pulled?
20 A. Yes, the blinds were pulled.
21 Q. Why?
22 A. I don't know. They were there when I came in. I suspect
23 so they didn't see us in the next room making a recording.
24 Q. Right. You didn't want them to see you doing your
25 business, right?
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47JSSAT5 Ostrom - cross
1 A. That would be correct I would believe.
2 Q. Right. And that is because that was your business, not
3 theirs, right, as far as you were concerned? You had the right
4 to have the blinds closed, right?
5 A. I have the right ---
6 Q. There was nothing wrong with having the blinds closed?
7 A. No, it was a necessity as far as I was concerned.
8 Q. Because when private things are happening it's all right
9 for people to take steps to preserve their privacy, correct?
10 MR. MORVILLO: Objection.
11 THE COURT: Overruled.
12 A. When private things are occurring? This was not a private
13 thing. This was a court-authorized recording.
14 Q. As far as you were concerned --
15 MR. MORVILLO: Objection.
16 Q. I am sorry, I interrupted you. I move to strike the answer
17 an as not responsive, your Honor.
18 THE COURT: Oh, no, it was answered. Go ahead.
19 Q. Go ahead.
20 THE COURT: Go ahead. The answer was completed.
21 Q. The answer stands, thank you.
22 You didn't want people to see what you were doing,
23 right?
24 A. Correct.
25 Q. Now, were you watching on that TV monitor to see what
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1 people were doing in there?
2 A. The TV monitor was there. We noted that there was
3 movement. Did I pay attention, no. In detail, absolutely not.
4 Q. Were you aware that Sheikh Abdel Rahman was blind?
5 A. Yes. Totally blind, I don't know. But there is claims of
6 him being blind, yes.
7 Q. But you don't know that to your personal knowledge. It's
8 just information you picked up in your investigation?
9 A. Right. I have never met him so I don't know personally.
10 Q. And on that tape you saw Mr. Yousry and Ms. Stewart and
11 Sheikh Abdel Rahman, correct?
12 A. There was an attorney, a translator, and the sheikh was on
13 there.
14 Q. Well, would you look around to see if you recognize anybody
15 in the courtroom today?
16 Do you?
17 A. As far as who was on that tape?
18 Q. Yes.
19 A. No, no, sir.
20 MR. TIGAR: No further questions.
21 THE COURT: All right.
22 MR. MORVILLO: Nothing further, your Honor.
23 THE COURT: All right.
24 The witness is excused.
25 You may step down.
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47JSSAT5 Ostrom - cross
1 (Witness excused)
2 THE COURT: The government can call its next witness.
3 MR. MORVILLO: Your Honor, the government calls David
4 Price.
5 THE COURT: All right. Mr. Morvillo, you may examine.
6 MR. MORVILLO: Thank you, your Honor.
7 DAVID PRICE,
8 called as a witness by the Government,
9 having been duly sworn, testified as follows:
10 DIRECT EXAMINATION
10 47JSSAT5 Price - direct
11 BY MR. MORVILLO:
12 Q. Mr. Price, good afternoon.
13 A. Good afternoon, sir.
14 Q. How are you employed, sir?
15 A. I am a special agent with the Federal Bureau of
16 Investigation.
17 Q. And how long have you been employed by the FBI?
18 A. About 33 years.
19 Q. Where are you currently assigned?
20 A. I don't hear well.
21 Q. Where are you currently assigned?
22 A. I am assigned in Rochester, Minnesota.
23 Q. Are you assigned to a particular unit or division?
24 A. There is a two-man office in Rochester called a resident
25 agency out of the Minneapolis Division of the FBI.
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47JSSAT5 Price - direct
1 THE COURT: Agent Price, please keep your voice up.
2 Talk into the microphone. The acoustics in the courtroom are
3 not good.
4 THE WITNESS: Yes, sir, thank you.
5 Q. How long have you been assigned to the Rochester RA?
6 A. Since about 1977.
7 Q. And where else have you been assigned in the FBI?
8 A. I have been assigned to Indianapolis, Indiana, Chicago,
9 Illinois and Rapid City, South Dakota.
10 Q. Directing your attention to July 14, 2001, were you working
11 that day?
12 A. I was.
13 Q. And what was your assignment that day?
14 A. My assignment was to go to the Federal Medical Center,
15 which is Bureau of Prisons property in Rochester, Minnesota,
16 and record a meeting.
17 Q. Was it your understanding that that recording was
18 authorized?
19 A. It was court ordered authorized, to my understanding, sir.
20 MR. TIGAR: Objection, your Honor.
21 THE COURT: All right. I will sustain it.
22 Q. What did you do when you got to FMC Rochester that day,
23 July 14, 2001?
24 A. I signed in on the official visitors' log and then would
25 have gone down to the special investigative services area where
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1 I would have met officers from the prison.
2 MR. MORVILLO: May I approach, your Honor?
3 THE COURT: Yes.
4 Q. Agent Price, I have just handed you what has been marked
5 for identification as Government Exhibit 1760, what is in
6 evidence as Government Exhibit -- withdrawn, Government Exhibit
7 1760, Government Exhibit 1761 and Government Exhibit 1761C, all
8 for identification.
9 Can you take a look at those and let me know whether
10 you recognize them?
11 A. Yes, sir, I do recognize each of these.
12 Q. With respect to Government Exhibits 1760 and 61, what are
13 those?
14 A. These are the official logs that an official visitor has to
15 sign in when you go to the prison. Immigration,
16 Naturalization, Customs, Marshals Service, coroner, FBI agents,
17 if you are not a visitor to one of the inmates or you are not a
18 worker there, you have to sign in on these.
19 (Continued on next page)
20
21
22
23
24
25
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1 BY MR. MORVILLO:
2 Q. Have you seen those logs before?
3 A. Yes, I've signed these -- I've signed in many times at the
4 prison in Rochester, so I've signed in on these two logs. And
5 they were given to me last Friday to bring here by the staff at
6 the federal medical center.
7 Q. And with respect to Government Exhibit 1761C, do you
8 recognize that?
9 A. That is a copy of the sign-in sheets for July 2nd of 2001
10 through July 16th of 2001.
11 Q. If you would look at Government Exhibit 1761, the actual
12 book, and turn to the tabbed page.
13 A. (The witness complies)
14 Q. Can you compare the 1761C to that page?
15 A. Yes, Sir. It's the same.
16 Q. It's a true and accurate copy?
17 A. It is.
18 MR. MORVILLO: Your Honor, the government offers 1761C
19 into evidence.
20 THE COURT: All right. No objection. Government
21 Exhibit 1761C received in evidence.
22 (Government's Exhibit 1761C received in evidence)
23 MR. MORVILLO: Your Honor, may I publish it to the
24 jury?
25 THE COURT: Yes.
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1 BY MR. MORVILLO:
2 Q. Directing your attention to the screen in front of you,
3 1761C, do you see your signature there?
4 A. Yes. I would be about the --
5 Q. If you actually touch the screen, it should indicate --
6 A. Here, here. Twice I see my signature on that.
7 Q. And on what dates do your signatures appear?
8 A. I have my signature on the 13th and the 14th of July.
9 Q. And what time did you enter on the 14th?
10 A. On the 14th I would have come in at 8:26 in the morning.
11 Q. And what time did you sign out on that day?
12 A. It would be 14 -- I can't read it right now.
13 2:19 p.m.
14 Q. That's indicated as 1419 on the --
15 A. Right.
16 Q. After you signed in that day, Agent Price, where did you
17 go?
18 A. I would go down to the office area that holds the warden's
19 office, and underneath that to an area near the conference room
20 or the training room of the prison, and I went down to the
21 legal office of the prison.
22 Q. Did you go into an office down there?
23 A. I did.
24 Q. Do you know whose office that was?
25 A. Kara Christenson.
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1 Q. And in relation to the conference room, where was that
2 office located?
3 A. It would have been directly across the hall from the
4 conference room.
5 Q. Incidentally, Agent Price, have you been to Rochester on
6 prior occasions to the FMC at Rochester?
7 A. Yes, Sir.
8 Q. How often?
9 A. It varies. I might be out once a month, and then again I
10 might be out several times in two days.
11 Q. And when you went into Miss Christenson's office, was there
12 any recording equipment set up?
13 A. There was.
14 Q. What was there?
15 A. Along the wall next to the corridor were a setup so you
16 could put cassettes in and record audio and visual from across
17 the hall in the conference room. Number 2 set up.
18 Q. Did you set up those recorders?
19 A. No, I did not.
20 Q. Did you bring tapes with you that day?
21 A. I think they already had them there. I don't believe I
22 brought them in.
23 Q. What were you going to record?
24 A. I was going to record the conversations between Sheikh Omar
25 Rahman and his attorney and interpreter that day.
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1 Q. Did there come a time on July 14th, 2001, when that meeting
2 began?
3 A. Yes, Sir, there did.
4 Q. What did you do on that day at that time?
5 A. I placed the "record" button on both tapes. I had two tape
6 recordings recording, so I had two to start. And I would have
7 checked to see that the sound worked, and then I turned the
8 sound off.
9 Q. How did you check to see if the sound worked?
10 A. Well, the needles -- as I recall, fluctuated, but just for
11 a second I just turned the volume up. I may have even turned
12 it on as they walked into the room with the guard. I don't
13 recall right now.
14 Q. Do you know whether the recording equipment was operating
15 properly?
16 A. I believe it was.
17 Q. What is that belief based on?
18 A. Well, the needles show that it was. It was moving. And --
19 but I never actually rewound it and reviewed it, no.
20 Q. Did there come a time when you had to switch the tapes?
21 A. Yes, Sir.
22 Q. And can you describe to the jury the process you used to
23 switch the tapes?
24 A. When you're coming to the end of a tape or there's a gap in
25 whatever's happening, you want to change the tapes before it
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1 runs out, so you just prepare your next tape, and you're about
2 ready with your times and you get them set side by side and you
3 push one button and that ejects the tape, and you put that one
4 in; and you eject the next one and put the other one in. So
5 you're talking a matter of 10, 30 seconds, something like that,
6 between the final exchange. It might be a little longer, but
7 that's about it.
8 Q. So Tape A and Tape B are substantially similar?
9 A. Yes. In fact, they're nearly duplicates or are duplicates.
10 MR. MORVILLO: May I approach, your Honor?
11 THE COURT: Yes.
12 Q. Agent Price, I've just placed before you what's been marked
13 for identification as government Exhibits 1720, 1721, 1722,
14 1723, 1724, and 1725. I'd ask you to take a look at those and
15 tell me whether you recognize them.
16 A. These are the recordings I made on July 14th, 2001.
17 Q. And how do you know that?
18 A. Because I initialed them and dated them and marked them in
19 various ways as I did them.
20 Q. And how many cassettes are there?
21 A. There's a total of six.
22 Q. And do those reflect tape Deck A and tape Deck B?
23 A. Yes, one from each.
24 Q. For a total of?
25 A. Three from each, yes.
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1 MR. MORVILLO: Your Honor, at this time the government
2 would offer Government Exhibits 1720 through 1725 into
3 evidence.
4 MR. TIGAR: Respectfully request the Court reserve.
5 THE COURT: All right. I'll reserve ruling.
6 BY MR. MORVILLO:
7 Q. Agent Price, while you were recording, did you ever leave
8 the room?
9 A. I did not.
10 Q. Did you ever do anything to stop the tape during its
11 recording other than when you were changing the tapes?
12 A. No, Sir, I did not.
13 Q. What did you do with the tapes after the meeting ended?
14 A. I took them back to the Rochester FBI office, and then I
15 would have transmitted them up to our electronic surveillance
16 technician, the person responsible for such tapes in the Twin
17 Cities.
18 Q. The Twin Cities being Minneapolis?
19 A. Minneapolis.
20 Q. Have you seen these tapes since the time you transmitted
21 them?
22 A. Today, Sir, when you gave them to me.
23 MR. MORVILLO: May I have a moment, your Honor?
24 THE COURT: Yes.
25 (Off the record)
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1 MR. MORVILLO: I have no further questions, your
2 Honor.
3 THE COURT: All right.
4 BY MR. TIGAR:
5 Q. Agent Price --
6 THE COURT: Just a moment.
7 MR. TIGAR: Excuse me, your Honor.
8 THE COURT: Go ahead.
9 CROSS EXAMINATION
10 BY MR. TIGAR:
11 Q. Agent Price, on direct examination, you told us about a
12 visit to the prison on the 13th of July. Did that have
13 anything to do with this case? That's on 1761C, Sir.
14 A. It probably did, in that I probably learned how to use the
15 tape recorder, but I don't have a memory of it. I learned
16 sometime how to use the tape recorder -- or, the recorder.
17 Q. And your instructions that day were to record this meeting,
18 correct?
19 A. That's correct.
20 THE COURT: I'm sorry, I think you want to place that
21 in time.
22 Q. Did I get the wrong date? Your instructions on July 14th
23 were to record the meeting, weren't they, Sir?
24 A. Yes, sir.
25 Q. And you were not instructed by anyone to listen to the
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1 meeting all the way through, were you?
2 A. No, I was not instructed to listen.
3 Q. And you were not instructed to perform any investigation
4 such as looking at people or interviewing people, correct?
5 A. I don't recall any such instructions.
6 Q. You did not make an FBI 302, did you, Sir?
7 A. No, Sir.
8 Q. And an FBI 302 would be something you would make if you
9 actually interviewed someone on a case, correct?
10 A. Usually.
11 Q. Or you might make a 302 if you conducted a visual
12 surveillance of someone you wanted to report, correct?
13 A. There are surveillance logs and there are 302s. So --
14 possibly, but not always.
15 Q. But for this activity, you were not instructed to make
16 either a surveillance log or a 302, correct?
17 A. I was not asked to do a 302. I'm not sure I didn't make a
18 handwritten log that went with this, but I can't remember
19 anymore.
20 Q. If you did make such a handwritten log, where is it?
21 A. I don't know.
22 Q. It wouldn't tell us anything other than that you sat in a
23 room and punched a button, right?
24 A. Right.
25 Q. And after you got these tape recordings, you didn't watch
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1 them or listen to them, did you?
2 A. I did not.
3 Q. Your instructions were to get them to the Twin Cities, and
4 from there, they would go to wherever they're supposed to go,
5 correct?
6 A. Yes, Sir.
7 Q. That was all you were -- and that was the sum total of your
8 involvement, right?
9 A. That's correct.
10 MR. TIGAR: No further questions.
11 MR. MORVILLO: Nothing further, your Honor.
12 THE COURT: All right. The witness is excused. You
13 may step down.
14 (The witness leaves the witness box)
15 THE COURT: All right. Government?
16 MR. BARKOW: May we have just a second, your Honor?
17 THE COURT: It's about 10 minutes before we break.
18 MR. MORVILLO: We have no further witnesses today.
19 THE COURT: All right. And if there is nothing
20 convenient for 10 minutes, I'll just let the jury go at this
21 point.
22 MR. BARKOW: Your Honor, I think that it might be
23 necessary to break.
24 THE COURT: Fine.
25 Ladies and gentlemen, it's 4:21, so we'll break today.
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1 And we'll resume at 9:30 tomorrow.
2 In terms of our schedule this week, we will break
3 again on Thursday at 12:15. So I just wanted to let you know
4 that so if you wanted to make any plans for Thursday afternoon,
5 you could.
6 Please remember my continuing instructions: Don't
7 want look at or listen to anything to do with the case. If you
8 should see or hear something, just turn away. Please don't
9 talk about the case or anything to do with it. Please always
10 remember to keep an open mind until you've heard all of the
11 evidence, I've instructed you on the law, and you've gone to
12 the jury room to begin your deliberations.
13 Have a good evening. I look forward to seeing you
14 tomorrow.
15 All rise, please. Follow Mr. Fletcher to the jury
16 room.
17 (Continued on next page)
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19
20
21
22
23
24
25
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1 (In open court; jury not present)
2 THE COURT: All right. Please be seated all.
3 All right. Now, there are some issues that the
4 parties wanted to take up with respect to government
5 Exhibit 1700 through 1715 and 1720 through 1725.
6 MR. TIGAR: Yes, your Honor. This is a part of this
7 prison surveillance issue, and the reason that I asked your
8 Honor to reserve -- there were many reasons, but among them was
9 that its government has in store for us the witness who
10 actually set the machinery up, or at least they've got somebody
11 that has a sketch of the machines as actually set up, as I
12 understand it. They don't?
13 MR. MORVILLO: No, your Honor.
14 MR. TIGAR: Oh. Well, if that's it, your Honor, then
15 all we know is that three people pushed a button and made sure
16 that a needle was working for a part of the time. We don't
17 know where the microphones were, whether they were capable of
18 receiving the information. We don't know the fidelity of the
19 equipment. We don't know any of the basic information about
20 how this was setup, and the agents disclaimed any knowledge of
21 how it works. So that's -- that would be the first issue that
22 we would want to explore.
23 Second, your Honor, the 3500 material, Agent Whiteside
24 McGrath indicates that in February of 2000, there were a
25 surveillance at a different location than the FMC. And it is
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1 our understanding, which may be wrong, that that surveillance
2 occurred that was not authorized by the FISA court. The
3 reference to it would be in 3555C, as in Charlie. I have a
4 copy of it here I could hand up to the Court, or perhaps the
5 government has an extra copy.
6 MR. MORVILLO: I don't have an extra copy, Mr. Tigar.
7 MR. TIGAR: All right.
8 THE COURT: Has the government provided 3500 material
9 or not?
10 MR. MORVILLO: I believe we are, your Honor.
11 MR. BARKOW: Our understanding is your Honor's binders
12 were updated this morning to include this 3500 material.
13 THE COURT: Okay. Thank you.
14 MR. TIGAR: Shall I hand it up, your Honor?
15 THE COURT: All right.
16 MR. TIGAR: I'm handing the document to Mr. Fletcher.
17 There's a reference there to a surveillance that's
18 established, your Honor. That's in the synopsis portion. In
19 this setting, I don't want to go further than I'm supposed to,
20 but that states my understanding.
21 And in our letter of this morning, we stated our
22 belief that the agents had, and made an argument concerning
23 relevance as to today.
24 In addition, your Honor, in my conversation with
25 Mr. Dember, he related to me the difficulty that the government
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1 has here because some material that was obtained in this
2 surveillance was minimized out. Some was given to a wall team
3 or privilege team. Some was subject to privilege litigation,
4 that your Honor ruled on. And as to all of that, Ms. Baker's
5 statements to your Honor this morning are, so far as I know,
6 correct. We have that. We don't have anything that was done
7 that exceeded the FISA one. And we've asked for that. But
8 regardless of that issue, there's this question of what now
9 comes in? I didn't understand what the government was
10 offering. Are they offering the entire recording of the
11 meeting?
12 MR. MORVILLO: Your Honor, we were offering those
13 portions of the meeting that correspond to the transcripts
14 which will subsequently be offered into evidence. Those that
15 have been redacted and minimized in furtherance of the FISA
16 court order and also the wall proceedings that were set up at
17 the u sufficient attorney's office.
18 MR. TIGAR: That, your Honor, is a technical problem
19 with the offer, because there's no magic marker on any of nose
20 magnetic tapes that says, This is where the minimization is and
21 this is where it isn't.
22 So the problem will be, your Honor, that any portions
23 of the conversation that took place in the English language,
24 the evidence is the tape. We're going to be playing the tape.
25 And we're not going to be just using transcripts. And what
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1 Mr. Morvillo is saying, I understand, he hasn't heard it all.
2 And so our position is, your Honor, that if any of it
3 comes in, it all comes in. And why? Because it would be
4 terribly unfair to single out particular portions in the
5 context of a long lawyer/client meeting when our whole defense
6 is that Ms. Stewart is performing regular lawyer/client
7 services, and that taken in context, her conduct is legal.
8 Whereas the government's contention is, Oh, no, no, let's point
9 to these parts -- and your Honor can recall the very first time
10 that I had some courtroom dispute with Mr. Morvillo, it was
11 about the leaking of some selected portions that, you know,
12 were in that recorder -- in the search warrant. That's been an
13 issue all along in this case.
14 So really, we're asking for, seeking here, is a
15 mechanism to resolve these issues. We have a hearsay objection
16 to the entirety of the February taping. That certainly is
17 there. But then when it comes to this, what's redacted, what's
18 minimized, these lawyers aren't in a position to discuss that
19 at this point, your Honor. And we just have to have some way
20 to deal with it.
21 Mr. Dember rightly says, Well, I don't want to do
22 something that's going to get me reversed because I wound up
23 hearing or using in evidence something the Second Circuit later
24 holds as privileged.
25 So really, we're asking for the Court's guidance,
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1 because there has to be an orderly way to resolve this.
2 THE COURT: Of course there is.
3 MR. TIGAR: Oh. Well, then I'm going to sit down,
4 your Honor, and hear it.
5 THE COURT: I mean, this is an issue which is -- I'll
6 put to one side the issue of the manner of the offer and what
7 it is that's on the tape because the parties can explain it to
8 me in some more detail. And perhaps there should be someone
9 from the government wall team that's here.
10 But my understanding is with respect to the prison
11 recordings, that a stay of the record -- and the parties can
12 correct me -- before listening to the government, so again, the
13 parties can correct me, you came to me now on the basis of
14 having a discussion as to the best way to do this, and to
15 assure that everything is proper with respect to the
16 admissibility of the evidence.
17 My recollection is that there's a prior order or
18 stipulation that deals with this subject because the trial team
19 had access to portions of the prison recording which have been
20 represented over the past as the portions which the government
21 seeks to offer.
22 There are other portions, both minimized and redacted
23 for purposes of attorney/client privilege.
24 If the defendant sought to offer anything other than
25 the government was offering from the prison recordings, the
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1 prior order and/or stipulation provided that the defendants
2 would give notice to the government and to Sheikh Rahman within
3 a given period of time so that any objections could be raised
4 with respect to whether anything else should come in,
5 including, among other things, recordings of Sheikh Rahman, to
6 protect any privilege with respect to the remainder of the
7 prison recording and whether the remainder of the recording
8 were required to be played at the same time for purposes of
9 completeness under Rule 106, or should weigh in on the case.
10 So that was the procedure that was set out. And it is
11 now the defendants who are saying, Okay, we give notice.
12 Whether that notice is somewhat late, I'll put this aside, but
13 that was worked out. So that this issue could be dealt with.
14 Second -- that doesn't answer, of course -- and I
15 don't know what it is that's on the case, whether it is
16 redacted and minimized or the full take, and how it is that the
17 full take is being offered. That's the second issue. That's
18 the more technical issue.
19 Backing up in order, the issue of fidelity and the
20 like, the parties can brief that if they wish. But
21 Ms. Christianson points out where the items were placed in the
22 ceiling and that she was cross-examined about such things as
23 where the table was and where it was in relationship to the
24 ceiling, where the equipment was. The agents identified the
25 tapes as the tapes that they put in the machine, took out of
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1 the machine, sent to New York and/or Washington. And the
2 parties were welcome to give me letters on whether that's
3 sufficient or whether any other information with respect to
4 fidelity and why it is necessary, when the tapes are there and
5 identified as the tapes and can be listened to by the jury.
6 As to the last issue that you raise, which was the
7 issue of cross-examination in respect to that other subject,
8 the parties can give me letters on that. But my recollection
9 is that that subject was the subject of at least prior
10 correspondence between the parties, and there is a fine line
11 that's here.
12 I've sustained defendant's objections with respect to
13 the content of the Court order. Based upon court orders, based
14 upon the defense objection that the way to handle the
15 authorization for the surveillance is simply by a court
16 instruction like that given in Judge Sand's instructions, which
17 says that the surveillance in this case was legal, or words to
18 that effect, there's a wiretap instruction. And the defendants
19 objected to going further than that, to going into the contents
20 of the order and the like because that was secondary evidence
21 and, as the government point out on another occasion, there are
22 no restrictions on the order itself, so it's sufficient to
23 sustain objections with the understanding that I will give the
24 standard instruction with respect to wiretaps, and in doing
25 that, prevent any possible unfairness to the defendants from
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1 otherwise identifying the nature of the order, etc.
2 And -- so, with respect to the other incident, I would
3 have questions with respect to relevance. I would have
4 questions with respect to the corresponding. Issues I have
5 attempted to deal with in a way that was completely fair to
6 both sides based upon the prior correspondence of -- based upon
7 what you've told me, and it does not rise to the level of
8 impeachment any more than some other issues which I dealt with
9 on relevancy and 403 grounds on cross-examination.
10 But in addition to those issues, I have issues with
11 respect to the way in which I've attempted to draw the line to
12 assure fairness to all sides with respect to the nature of the
13 authorization for the surveillance that we're dealing with.
14 And the parties can correct me if I'm wrong, but I'm not at all
15 sure that that same line is drawn in other cases because there
16 is at least one transcript that came in which I saw go by which
17 was a FISA case, which none of the transcripts in this case
18 are, I assume, would do.
19 So I think I've covered the issues that you've raised
20 with me. And --
21 MR. TIGAR: Yes, your Honor. First, let me take first
22 issue with notice. The offer today was of the tapes, but only
23 those portions to be embodied in later transcripts. We haven't
24 seen a transcript. I can't do what the Court's order asks me
25 to do until I see what they're going to do. We will today
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1 say -- because we just got this 3500 material over the weekend.
2 Now that we know, then we'll take the steps.
3 Second, with respect to authenticity, those tapes each
4 have a cue on them. I don't know why the government is
5 offering cue exhibits. Cue exhibits are question exhibits.
6 They're exhibits that are subject to later processes. And I
7 see government counsel laughing and so on. Maybe not, maybe
8 I'm misinterpreting. We have a witness named Herold,
9 H-e-r-o-l-d, coming. He took those exhibits and did something
10 to them. We have a lots of material because of something being
11 done to them. Presumably, since Mr. Harold is an audio
12 enhancement expert, he went out and audio-enhanced them. If
13 that's what was done to them, at the very least the
14 authentication decision should require that be found out where
15 these things have been and what was done to them or what was
16 done to copies that were made from them before the decision is
17 made.
18 I recognize Miss Christenson testified, but I wouldn't
19 stand up and make my objection, your Honor, without some basis
20 on what the government has furnished to me that they said is
21 coming. Mr. Herold made diagrams of how the signals were put
22 through machines. I don't know what those mean yet. I was
23 waiting to hear from him so that I could make an authenticity
24 argument.
25 Now, with respect to impeachment, I don't want to and
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1 do not believe I should happen to open a door to let the
2 contents of FISA orders come in in order to exercise a right of
3 cross-examination. If the Court please, Ms. Stewart is on
4 trial for violating two letters from an Assistant United States
5 Attorney and for conspiring to violate five letters,
6 regulations, issues, SAMs, orders, from the Attorney General of
7 the United States or the designee.
8 The Court wrote an opinion saying that she couldn't
9 raise a First Amendment objection because she had an
10 obligation, if she didn't want to follow the orders, to go get
11 it clarified. And that issue has been pursued in cross. Did
12 somebody call Mr. Fitzgerald and ask him before May 19?
13 My request is a simple one: If indeed the facts are
14 as I suggested, we are the victims, your Honor, of conduct
15 which constitutes the fact element of two federal felonies.
16 And I don't think that my rights, if your Honor holds that I
17 have them, to inquire as to why these agents take such a
18 cavalier attitude towards court orders, should be contingent
19 upon my opening the door to all manner of completely
20 unreviewable hearsay. With respect, your Honor, I don't see
21 it.
22 If the Court tells me that that's what I'll be doing,
23 then, you know, we'll have to make a choice here. But that is
24 the issue as we see it.
25 MR. RUHNKE: Your Honor, can I say something on the
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1 issue of the prison recordings and the telephone or the legal
2 telephone calls that will be coming up?
3 We have been asking from the start of the case
4 informally with the government when they were going to start
5 producing their excerpted transcripts of the prison recordings
6 of both telephone calls and the prison visits. And the
7 government has been -- that they would be producing them in
8 patches as it goes along.
9 Now, on Friday -- I haven't physically seen them, will
10 see them today -- sent to us what is described as redacted
11 minimized draft transcripts of prison calls of Sheikh Omar
12 Abdel Rahman. It was minimized in accordance with the orders
13 of the FISA court, and that each transcript after being
14 minimized by the FISA court was reviewed by the officers of the
15 wall team, and they then redacted what they thought was
16 privileged information.
17 This issue of privilege, as far as the prison calls
18 are concerned or prison recordings are concerned, I understand
19 and I accept that your Honor dealt with them as well, with only
20 those particular documents that you were shown at the time.
21 However, your Honor also ruled --
22 THE COURT: No, not only shown but asked to rule on.
23 I declined the government's gracious invitation simply to take
24 all of the future notebooks and while I was at it rule on all
25 of the notebooks.
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1 MR. RUHNKE: That's right. And then in your Honor's
2 ruling, you ruled basically on a two-level basis.
3 THE COURT: And I -- under -- yes, and I -- because it
4 possibly dealt with sealed materials, and I issued the orders
5 under seal also, because they dealt with sealed materials.
6 MR. RUHNKE: I'm not going to talk about the materials
7 themselves, your Honor. Your Honor ruled on one level that any
8 objection on a privilege basis had been waived. And then your
9 Honor said that reaching the merits even, there was no
10 privilege for the materials that you looked at.
11 Thereafter, as it developed, I wanted to use some of
12 the notebooks in opening. I contacted Mr. Schmidt and copied
13 Mr. Clark on the correspondence, as well as the government, and
14 Mr. Schmidt declined; in essence, that he had made his legal
15 arguments. He was not going to appeal any aspect of your
16 Honor's ruling. And therefore it seems to me that although the
17 final "t" has not been crossed, we have time to do that.
18 What I do intend to do is contacted Mr. Schmidt and
19 say, basically, Do you want to be heard on a
20 document-by-document, conversation-by-conversation basis, or
21 are you satisfied?
22 Of course, that covered anything. I think his
23 response will be: He does not want to be heard on a
24 document-by-document conversation basis. But I have not yet
25 had that conversation. I'm just being predictive.
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1 THE COURT: Because my understanding of the order
2 and/or stipulation is that that notice would be given and that
3 there is substantial parts, more to the recordings, than I was
4 ever asked to rule on. And I indicated in declining the
5 government's gracious invitation to examine the rest of the
6 notebooks that I didn't know whether Sheikh Rahman's position
7 would be the same if asked not by the government, but by his
8 former counsel or -- but there was a procedure to -- at least
9 notices and determine whether any such privilege was being
10 asserted. Because it's being -- the government has said that
11 at the trial, they had access to some of these materials in the
12 prison recordings, and there has been no determination with
13 respect to anything other than what I was given which was what
14 was being sought to be introduced by the government at trial.
15 Now, maybe you will be able to cut through the timing
16 of the folder and, you know, that's fine. I appreciate your,
17 you know, your -- you bring it to my attention, and doing
18 whatever you think on behalf of your client and the other
19 defendants you wish to do with that.
20 MR. RUHNKE: The problem we're having is that until we
21 know what the government wants to offer from those visits and
22 from those telephone calls, we can't begin to take the next
23 step. We can't begin to make completeness arguments. We can't
24 begin to say, Oh, wait a minute, is this part of the
25 conversation that's key, although apparently the wall team has
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1 ruled them out as privileged, so we get them from the
2 government. And we're getting them from the government now.
3 THE COURT: Do you have copies of excerpted
4 transcripts of the prison visits?
5 MR. RUHNKE: Of the prison visits?
6 THE COURT: Yes.
7 MR. RUHNKE: We have translations, draft translations
8 of the prison visits that the government has provided. We
9 don't know of those, I don't think yet, what they intend to
10 offer. I may be wrong about that. Because I don't think the
11 government has yet to give us even draft transcripts of the
12 documents they actually wanted to offer to a jury at this
13 trial. Just got, either on Friday or Saturday, what are
14 labeled still as draft transcripts of what they want to offer
15 on the prison phone calls. And so, it's a -- I feel
16 personally, just on behalf of my client, a bit trapped by all
17 of this. We haven't gotten what we need to get the process
18 started.
19 THE COURT: I will listen to the government, but I
20 would -- I would certainly give you whatever time is necessary,
21 and I think the parties have worked cooperatively, and I'll
22 certainly assure that you have the time.
23 MR. RUHNKE: Your Honor, I'm not pointing fingers at
24 the government, saying they're the bad guys here. It's a lot
25 of stuff to deal with, and it's complicated and it's
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1 logistically difficult. I can remember having the same
2 conversation just before we started jury selection, about when
3 are we going to get transfers, and the government said they'll
4 produce them on a rolling basis.
5 What I think would be unfair if the government gives
6 us draft transcripts on Saturday and say, We intend to start
7 playing these Wednesday, and your Rule 106 objections are due
8 Sunday.
9 And that's my plea, basically, to deal with the time
10 restraints, your Honor.
11 THE COURT: All right.
12 MS. BAKER: Your Honor.
13 THE COURT: Yes.
14 MS. BAKER: I'm sorry, I didn't mean to cut you off.
15 THE COURT: Really, you didn't. Go ahead.
16 MS. BAKER: Defense counsel's characterization of the
17 history and the record here is certainly not a fair and
18 accurate one. It has been clear from the early stages of this
19 case that whatever the government would ultimately decide to
20 offer into evidence as far as the prison visits or the prison
21 calls, that that would not exceed the portions left in in the
22 minimized and redacted transcripts, which are transcripts that
23 had taken out of the minimizations required under the FISA
24 court's orders, and additional portions that our wall team took
25 out in an abundance of caution because they might be
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1 privileged.
2 Those parts were taken out early in the process and
3 draft transcripts with all of those parts taken out have long
4 been in the possession of defense counsel. Then more refined
5 drafts of only the same portions were provided again. And I
6 don't have my correspondence file here in front of me, but I am
7 pretty confident that in the period of time leading up to the
8 trial when we were dealing with Sheikh Abdel Rahman's belated
9 assertion of his privilege claim, that the government
10 represented in its correspondence with defense counsel and the
11 Court that as to the prison visits, it was the government's
12 intention to offer finalized transcripts which were still being
13 finalized, and still are, but we don't expect any substantive
14 changes from the drafts, but finalized transcripts that had in
15 them the same amount of content that had been in the drafts
16 that defense counsel has long had.
17 So the fact that we had never planned to offer the
18 portions removed pursuant to minimization or removed by our
19 wall team has been clear all along; and as I say, with respect
20 to the visits, we went further and said, we do intend to offer
21 all of those portions that were left in after those processes.
22 For the calls, I believe we indicated that we intended
23 to offer not more than what was left in after minimization and
24 redaction, which again defense counsel has had for quite
25 sometime. We've provided drafts of all the calls. We are now
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1 providing more refined drafts, and they're also being
2 finalized. But again, we made clear that we would not offer
3 more than what was left after minimization and redaction, but
4 that as to the prison calls, we might excerpt them further and
5 offer less. So of course, if we were to offer more excerpted
6 calls, of course I grant that defense counsel has not yet had
7 an opportunity to address any further excerpting.
8 But the issue that there's some completeness argument
9 because of the portions that were removed in minimization and
10 in redaction by the U.S. Attorney's office's wall team has been
11 clear from the very earliest stages of this case, and defense
12 counsel has long had, as I said, both the minimized and
13 redacted transcripts and the corresponding unminimized
14 unredacted transcripts that were disclosed to defense counsel
15 by our wall team, but which we on the trial team have never
16 seen.
17 And the corresponding recordings as well. The defense
18 has long had, for the visits, both the complete recordings and
19 the recordings that were redacted and minimized to match the
20 transcripts. Obviously we on the trial team have only had
21 access to the minimized and redacted recordings. That's as to
22 the visits.
23 As to the calls, the recordings have not yet been
24 minimized and redacted, so defense counsel has had all along
25 the full recordings of its prison calls without any
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1 minimizations or redactions.
2 So that is the state of the record. And your Honor is
3 correct that there was a stipulation and order that was
4 designed to address this very issue. And the government is now
5 sort of stuck. I mean, we anticipated that we would offer the
6 minimized and redacted recordings, and, you know, and their
7 transcripts, and that there would be a stipulation or an
8 instruction that other portions had been removed for legal
9 reasons that the jury need not concern themselves with. But if
10 the defense is now saying that they want the recordings offered
11 in full, that's the first time -- this is the first time that
12 we're hearing of that, even though it's been clear all along
13 that we were intending to use only the portions that had been
14 left in the minimized and redacted versions.
15 So we are going to need to reassess in light of that
16 request. As I said, we on the trial team have not, to this
17 day, had access to the full recordings or their transcripts.
18 MR. RUHNKE: Your Honor, it's not in the
19 correspondence. But for the last two weeks, we've been having
20 conversations -- Mr. Barkow, Mr. Stern and I have had direct
21 conversations about what the government intends to play of the
22 prison visits and the prison phone calls, and we've said it
23 over and over again: It's our position they should play
24 wall-to-wall. They should play start to finish. We want to
25 hear the entire conversation.
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1 Now, maybe I regret not having added one more letter
2 to the correspondence that's going around, but Mr. Barkow will
3 certainly confirm, I think, that those conversations have taken
4 place. It's not brand-new news to the government.
5 MR. BARKOW: Your Honor, since it's come up -- and I
6 hope Mr. Ruhnke would confirm this -- but today was the first
7 time -- well, actually, let me step back.
8 Each time that Mr. Ruhnke has asked me about this
9 issue, my response has been: I don't know. And today was the
10 first time that, between he and I, ever, the subject was
11 raised, and I raised it about the redacted portions, that is,
12 the portions that we the trial team had never seen, because up
13 until that point, it was my understanding at least, that when
14 Mr. Ruhnke was saying, We want you to play the whole thing
15 wall-to-wall, I was always proceeding under the assumption that
16 he was talking about the redacted parts, because, as I assumed
17 he knew, none of the trial team has ever seen anything other
18 than that, and so I would never be in a position to discuss
19 anything beyond that, because I don't know what's there.
20 So today was the first time that was made explicit by
21 either one of us.
22 And so I -- I think that -- my conversations with them
23 don't really add to this analysis here because they were all
24 premised on my understanding, at least, that all that was being
25 discussed was how much of the redacted visits were going to be
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1 played or offered, what-have-you, because the other stuff has
2 just never been seen, and we have no knowledge about it.
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1 THE COURT: Well, the since the parties brought this
2 up to me for discussion, the portions of the prison recordings
3 that are not those portions which have been redacted and
4 minimized, what is the portion that the trial team has seen,
5 the other portions is there a transcript of those? Such a
6 transcript would not have been seen by the government trial
7 team and plainly is not part of what they were offering.
8 MS. BAKER: Your Honor, there were full verbatim
9 transcripts prepared initially by FBI personnel who were
10 permitted to do that under the terms of the FISA court's orders
11 and then those full verbatim transcripts had the minimizations
12 performed on them and then additional redactions by our office
13 wall team. I believe, however, that as I am sure your Honor
14 can appreciate when you are going to use a transcript at trial
15 you have an initial draft, and then you refine it. And what we
16 have been working on refining, or having refined for use at
17 trial, are the minimized or the portions left in after the
18 minimizing and redacting.
19 So although there is some full version of a transcript
20 that our wall team has, I don't believe that it's anywhere near
21 as finalized and ready to use as the portions which the trial
22 team was all along planning on using.
23 THE COURT: There are obviously a couple of levels.
24 One is the issue of notice and what Sheikh Abdel Rahman's
25 position -- which, Mr. Ruhnke, may be able to be dealt with
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1 relatively quickly -- and the next level then is to assure that
2 those portions that the government seeks to offer as part of
3 its case are sufficiently discrete, such that there are no 106
4 issues that have to be resolved.
5 Ms. Baker.
6 MS. BAKER: Your Honor, if the ultimate outcome of
7 this issue is going to be that Abdel Rahman has no objection or
8 if he has an objection and it's overruled and the ultimate
9 outcome on these recordings is that they are going to come in
10 in their entireties, the government does not want to offer only
11 selected portions and then have the rest come in in the defense
12 case. Or at least the government doesn't know what it wants at
13 this point since we have no idea what is in those other parts.
14 But unless we think that there are other parts in there that
15 simply would not be admissible for some reason, if everything
16 in there is admissible and if it's relevant to the context of
17 the other parts, we might be willing to have the whole thing
18 come in in our case.
19 We don't want the jury to think that we are trying to
20 hide parts of the recordings from them. We were going to offer
21 only the portions that we were going to offer because that is
22 all we have ever had access to and that is all we thought we
23 were legally entitled to offer. But we are not in a position
24 to really take a final position right now. I mean, this is the
25 first we have been told that the defense seems to want
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1 everything and if that is true, we now need to know whether or
2 not Abdel Rahman is objecting or if he even should be given the
3 opportunity to object again, because we now need to get access
4 to the materials so that we can decide how to proceed next.
5 THE COURT: Well, the stipulation and order provided
6 for the steps of if the defendant sought to introduce other
7 portions, then counsel for Sheikh Abdel Rahman would be
8 informed. So having issued that order in order to resolve the
9 issues at that time based on the stipulation of the parties,
10 that should be followed and if it can be expedited, as Mr.
11 Ruhnke suggests, Mr. Schmidt did expedite it last time with
12 respect to certain portions of the Yousry notebook, that will
13 move along the timetable of the order. That would then leave
14 the question of what else is on those tapes and what the state
15 of transcripts is for the rest of the tapes.
16 So let me go back. The parties should talk about that
17 promptly.
18 Let me go back to the more technical issue or two more
19 technical issues which the government didn't respond to.
20 MS. BAKER: Your Honor, obviously the government's
21 response on some of those issues depends on ultimately is the
22 government going to be offering minimized redacted versions or
23 is the government going to be offering something more than
24 that. Before this issue of the other portions of the
25 transcript came up, the government's intention was as follows:
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1 Mr. Herald, who works for the FBI, prepared copies of the
2 recordings that were, among other things, edited to correspond
3 to the minimized and redacted transcripts. And the government
4 will be offering through Mr. Herald those edited copies of the
5 recordings and for the primary playing of the visits. Again
6 assuming we are using minimized redacted versions, the
7 government was going to be playing those edited copies.
8 However, the government also wants the original recordings in
9 evidence because we expect, given, for example, issues that
10 defendant Stewart has raised with regard to regular telephone
11 recordings, we expect that at least defendant Stewart may raise
12 issues relating to the copies of the prison visit recordings
13 and whether the jury should afford full weight to those copies
14 and so on.
15 So the government wants to have the original
16 recordings in evidence as well so that if some issue is raised
17 the original recordings are available and although it's not
18 very easy to play the original recordings if we are only using
19 the minimized and redacted portions, it is possible because the
20 recordings could be fast forwarded through the parts that are
21 removed. But, again, that is not easy but that is not
22 primarily how we were intending to present the recordings.
23 But the point is we don't believe that the fact that
24 we would only be offering portions should be a bar to the
25 admissibility of the original recordings and, in any event,
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1 obviously this issue would be a different issue if now more of
2 the recordings were coming in or all of the recordings were
3 coming in.
4 THE COURT: But how could I rule on the offer of
5 government exhibits -- as they were offered -- Government
6 Exhibits 1700 to 1715 April 1720 to 1725? The recordings are
7 the full recordings which Mr. Morvillo offered in evidence.
8 MR. MORVILLO: Your Honor, I only offered them to the
9 extent they correspond with transcripts of the recordings that
10 are later admitted into evidence. I thought I made that clear.
11 And to the extent no transcripts ever come in for some reason,
12 then no portions of these recordings are going to come into
13 evidence. They are the full, unredacted, unminimized
14 recordings.
15 The transcripts that we propose to introduce are both
16 redacted and minimized and so we would only offer those
17 portions of these recordings that correspond to those portions
18 of the transcripts that get admitted into evidence.
19 MR. TIGAR: Your Honor, that is a practical question.
20 If they are in evidence and the jurors have them in the jury
21 room and ask for a tape player, what are they supposed to do
22 with them?
23 MR. MORVILLO: It's the same way we proceeded with the
24 audio recordings from the underlying FISA calls, your Honor.
25 THE COURT: It simply wasn't, frankly, clear to me
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1 that the offer was -- and I would have to go back and check the
2 transcript from my notes -- that the offer was of the tapes
3 that corresponded to excerpted transcripts.
4 MR. MORVILLO: Your Honor, that is what I said the
5 first time I made an offer and then when Mr. Tigar objected and
6 your Honor reserved I believe subsequent offers, at least a
7 second one, was just for the exhibits knowing that there would
8 be another objection and another reservation. And the last
9 time I did it I believe I also qualified the offer. But just
10 so it's clear, it is a qualified offer.
11 MS. BAKER: Your Honor, as to the practical issue, Mr.
12 Tigar says but they are in evidence, the jury can take them
13 into the jury room and play them. They are only in evidence to
14 the extent that your Honor says that they are in evidence and
15 so if your Honor rules that only certain portions are in
16 evidence and if the jury wishes to view those original
17 recordings as opposed to the other edited copies, then they
18 would have to be played in the courtroom by fast forwarding
19 through the portions that are not in evidence.
20 THE COURT: That is true. It just was not clear to me
21 what the offer was.
22 MS. BAKER: Your Honor, if there are other particular
23 issues the court wants me to address I am happy to address any
24 of them.
25 On the issue of unauthorized FISA surveillance and
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1 whether or not there should be any cross examination relating
2 to that, we had addressed this issue in a letter to defense
3 counsel and copied to the court, dated January 20, 2004. I
4 have a couple of extra copies of that letter here with me. Mr.
5 Tigar obviously has already previously received it but I am
6 giving him another copy and handing it up to the court as well.
7 The particular issue that Mr. Tigar is alluding to is
8 addressed in the paragraph that begins at the bottom of the
9 first page of the letter and in light of the raising of this
10 issue on the record here now, the government would ask that the
11 court direct that a copy of this letter be docketed under seal.
12 Your Honor, there is no basis to cross examine any of
13 these particular agents who have testified here today about
14 that issue because those particular agents were not involved in
15 the other surveillance that is referenced in that paragraph of
16 this letter.
17 THE COURT: Okay.
18 MR. TIGAR: I understand what the government is
19 saying. The letter itself doesn't tell us who misunderstood
20 and who did what. We now -- and I am now told that it wasn't
21 Agent McGrath. My belief that it was Agent McGrath has to do
22 with the paragraph in --
23 THE COURT: I accept your representation.
24 MR. TIGAR: I wasn't apologizing, your Honor. I was
25 going to explain. I am obeying the order but I did want to
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1 point out that it says that coverage was established. That
2 means that this agent has some knowledge that coverage was
3 established. Therefore, someone said to the agent go establish
4 coverage. What kind of coverage was the agent instructed to
5 establish? That doesn't require us to get in very far, and if
6 it was do audio and video, then I can get that. Perhaps the
7 government would stipulate that the agent if recalled would say
8 it. And then I can consider what the next step would be if I
9 want to pursue this.
10 MS. BAKER: Your Honor, the government submits that
11 any other surveillance and the extent to which it was
12 appropriate or inappropriate is irrelevant to the issue of the
13 authenticity of the recording of the prison visit, which is the
14 issue currently before the court. Moreover, the mere fact that
15 there is this reference in a piece of Agent McGrath's 3500
16 material, doesn't mean that she is the person with personal
17 knowledge of any of the things that Mr. Tigar might wish to
18 inquire into, which we submit are irrelevant.
19 MR. TIGAR: Yes, it's true. This piece of paper
20 doesn't say that she does or doesn't have personal knowledge.
21 Mindful as I was of the court's direction, I didn't ask her
22 that.
23 Now, there are two ways to do this that I would be
24 willing to deal with. One is government counsel can go and ask
25 her, you know, exactly what did you know and how did you know
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1 it, and so on, and provide us some document. The simplest way
2 would be to call her back. She will be here until Wednesday.
3 Ask her the question. If I strike out, then that means that a
4 biased-based cross examination is a fruitless endeavor and if I
5 want to go after some kind of a bad faith contra spolatorium
6 argument I have to go somewhere else to do it other than with
7 this agent. So that is my respectful request.
8 MR. MORVILLO: If I can just respond very briefly. I
9 have spoken to Agent McGrath about her personal knowledge and
10 involvement in this surveillance and she told me that she was
11 not involved. I don't know to what extent she has hearsay
12 knowledge of what occurred but, again, we would submit that is
13 just not relevant and would be hearsay as well, so it would be
14 inadmissible.
15 MR. TIGAR: I am sorry, that really isn't enough. She
16 writes a report to her superiors in which she says FISA
17 coverage established at, and two locations. So far as we know
18 that is the only record of that event in Rochester. She had to
19 write that based on something and, of course, it might wind up
20 one of the questions would be 803(8) because in our hands there
21 is at least a potential basis for admissibility here. But that
22 is our application.
23 The one thing that has not been addressed is that in
24 our letter we have sought production if the February 2000
25 prison visit comes in, then we have asked for Mr. Jabara's
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1 grand jury testimony.
2 MR. BARKOW: Your Honor, with respect to the grand
3 jury testimony I can proffer to the court and hand up to the
4 court a copy of it. There is nothing in that testimony that
5 has anything to do with any of the issues that have been
6 discussed.
7 THE COURT: Wait, wait --
8 MR. BARKOW: I don't have to hand it up but I proffer
9 it to the court and I have a copy if the court would like.
10 THE COURT: I haven't had an opportunity to read Mr.
11 Tigar's letter and you both can discuss that representation and
12 ask whether that affects the production of Jabara grand jury
13 testimony and if there is dispute I will resolve it. The
14 solution to all issues is not simply to give it to the court
15 without guidance, like the unredacted Yousry notebooks, and
16 say, here, do it. The preliminary question is do what? And
17 there was an issue between the parties with respect to the
18 Jabara grand jury testimony. What precisely that issue is is
19 not clear to me. There was a request for the grand jury
20 testimony. What you say, Mr. Barkow, may be wholly responsive
21 to that. I don't know. Maybe one more conversation will
22 resolve it.
23 But if the parties want me to review Jabara grand jury
24 testimony, then they have to tell me why it is that I am
25 reviewing it. And it's just not -- it may be clear to you but
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1 it's just not clear to me at the moment. So take another
2 conversation.
3 There was one other issue that the defense raised, Ms.
4 Baker, which was you told me what Mr. Herald was going to do,
5 and then the first issue was are the tapes sufficiently
6 authenticated at this point for admissibility. The defendants'
7 objection was the lack of an expert on fidelity and where the
8 microphones were placed.
9 MS. BAKER: Your Honor, the government respectfully
10 submits that all of that goes to weight and not to authenticity
11 and that Mr. Tigar is able to explore those issues in his case
12 should he choose to do so. The court has reviewed at least
13 portions of the transcripts of the recordings. The court could
14 certainly look at the original recordings themselves for their
15 content for use on the threshold question of admissibility and
16 the recordings themselves, I am told, not having seen full
17 versions of them, make clear that the equipment functioned well
18 enough to record the entire conversation and that by and large
19 it's all audible. There may be occasional words or phrases
20 here or there that are inaudible. There are occasions in some
21 of the visits when the parties seem to be intentionally
22 whispering or lowering their voices.
23 But as your Honor recognized in ruling on the
24 admissibility of the other telephone calls the other day, the
25 fact that portions are inaudible does not render the recordings
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1 inadmissible, and these are all of the sorts of questions that
2 go to weight and not to authenticity.
3 These are the original tapes and the agents who made
4 these tapes have said, yes, these are the original tapes that I
5 made. And the other witness who we will call will testify
6 about what he did in copying the tapes or processing copies of
7 the tapes, but that is completely a separate question from the
8 authenticity of the originals and that authenticity has been
9 clearly established by the testimony of these witnesses today
10 as supplemented by the testimony that Kara Christenson gave
11 about the location of the equipment to the extent of her
12 knowledge.
13 THE COURT: The defendant raised a question of the Q
14 marking on the tape.
15 MS. BAKER: Your Honor, I will proffer that
16 Mr. Herald, who is the witness who made the copies, will
17 testify that he is the person who added those markings. When
18 he received each tape he gave it a reference number and then
19 took additional steps from there. So it's his additional
20 handwriting on the tape labels and on the box labels, although
21 frankly I don't see what that has to do with the question of
22 the authenticity of the recording itself.
23 MR. TIGAR: Your Honor, if your Honor please, we have
24 no evidence at all as to the type of machines. We know that
25 you put a high 8 tape into it and push a button. How do I
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1 answer that? What brand of machine? Was it done with a cable,
2 a wire from the machine into the microphones? Was it a
3 wireless microphone? What brand of microphone? Where were the
4 microphones? We had that kind of information and, your Honor,
5 in an ordinary spike mic. case from the '60s or '70s the
6 question would be, gee, Agent, where did you put the mic.?
7 What does it look like? Show us your tape recording.
8 In fact, your Honor, if you look at 1761C we see that
9 an Agent Bartholmey came into the prison on the 16th of July
10 and he went to SIS and presumably Agent Bartholmey is the one
11 that dismantled the recordings. I don't know. But if we look
12 at 1760D we see that on the 25th of May a Kathy Murphy from the
13 FBI went in, spent a little more and hour, went to SIS
14 presumably to remove the recording equipment.
15 In short, your Honor, what we have here is trips to
16 New York by three Minnesota agents chosen by the government,
17 none of whom knows anything about how to report a conversation
18 except how to press a button. That is not, your Honor, an
19 authenticity showing. It is a deliberate choice of witnesses
20 designed to keep from us the most basic kind of information
21 and, yes, it may be, all the parts of McKeever aren't still the
22 law. The part particularly Judge Kearse said was the
23 inducement part.
24 But I daresay there has never been in this circuit in
25 front of any district judge of this court a case in which audio
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1 surveillance comes in without at least somebody being able to
2 describe for us the microphone and how it's connected to the
3 machine in the most basic way. And we just don't have that.
4 It may be that if somebody gave me that information I
5 would say, oh, I will drop my inquiry because I know that that
6 is the sort of thing that people hook up and use all the time.
7 But what we have here instead, your Honor, is this studied
8 effort not to share that information. And that is why I am
9 objecting, because I don't think they have quite met the
10 standard. If overnight they want to reconsider and send me a
11 letter and say it was a TEAC with a microphone I might come in
12 tomorrow morning and say, gee, I am not interested in wasting
13 anybody's time. I know what the rules are and if this is one
14 of those Kel sec. one spike cases I will give up.
15 THE COURT: Ms. Baker.
16 MS. BAKER: Your Honor, the government renews its
17 offer of the evidence and rests on the argument that the
18 original tapes have been sufficiently authenticated and Mr.
19 Tigar's lines of inquiry that he wishes to pursue to the extent
20 that they are relevant go to the weight question for the jury
21 and not the authenticity and admissibility question for the
22 court. The recordings themselves make clear that whatever kind
23 of microphone it was, however it was hooked up from the
24 microphone head or whatever it's called itself to the tape
25 decks, that it worked sufficiently that there is clear
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1 conversation on there which is overwhelmingly audible and, as I
2 said before, and as your Honor well knows from the case law,
3 the contents of the recordings themselves are evidence that the
4 court may consider in ruling on the admissibility question.
5 THE COURT: All right.
6 MR. TIGAR: May I have just a moment please, your
7 Honor?
8 THE COURT: Sure.
9 MR. TIGAR: Your Honor, Ms. Shellow-Lavine reminds me
10 there is us a custody question. If the tapes that Mr. Morvillo
11 offered, and about which Ms. Baker is making representations,
12 are indeed the full tapes, how do they know?
13 MS. BAKER: Your Honor, we are relying on the
14 testimony of the agents that these are the tapes they made.
15 THE COURT: All right. The parties can give me any
16 letters on any of this that they want tonight. It seems to me
17 plain that I can't rule on the issue with respect to -- that I
18 should defer at least briefly on the issues until there is some
19 resolution of what it is that really is being offered in terms
20 of the content of the tape and whether that should be before
21 Mr. Herald testifies because the government says it wants to
22 consider what it is that is being offered in terms of the tapes
23 themselves that corresponds to what transcripts.
24 Mr. Ruhnke has undertaken to get a prompt response on
25 the defense statement that they want to offer the remainder of
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1 the conversations, at least of the prison visits. That may or
2 may not resolve the issue as to what portion of the transcripts
3 are actually being offered.
4 MS. BAKER: Your Honor, it's unclear to me what
5 procedure now applies. Are we, the government trial team,
6 authorized to go back to our offices and begin considering the
7 full transcript that has the minimized and redacted parts in
8 it?
9 THE COURT: No. I don't have the order in front of
10 me, the stipulation and order, and there is a procedure and it
11 may be that the procedure is -- and I haven't reviewed the
12 order and stipulation. None of this was argued out to me
13 before today, at least these issues. I don't recall if the
14 order was such that the government could offer the redacted
15 transcripts and then within the period of time if there was no
16 objection, then any objection is waived, any attorney-client
17 objection is waived and the defendants can seek to offer but
18 the government can object. The government says they might not.
19 So there was a procedure worked out which did include a time
20 period of notice. It's the time period that Mr. Ruhnke says
21 may be resolved more quickly and I also don't recall if the
22 triggering should have been done before now.
23 MR. MORVILLO: Your Honor, my recollection of the
24 order, and we have a copy of it here, is that the defendants
25 were supposed to give the government and Mr. Schmidt and the
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1 court two weeks notice of an intent to disclose any redacted or
2 minimized materials. That was to give everyone involved,
3 particularly Mr. Schmidt or Abdel Rahman's counsel at the time,
4 the opportunity to interpose any privilege objections. I
5 believe the order specifically states that any other objections
6 such as relevance or hearsay, et cetera, did not need to be
7 resolved in that two-week period. But the two-week period was
8 designed to give all parties the opportunity to consider this
9 evidence before it was introduced.
10 MS. BAKER: Your Honor, Mr. Morvillo's recollection is
11 correct. We now have a copy up on the laptop computer. If
12 your Honor wishes I can pass up the laptop. It says there
13 would be 14-day notice of specific portions of "the redacted
14 content" that the defendants would seek to use and that after
15 that notice by the defendants, then Abdel Rahman or his counsel
16 would have 7 days to make any objection based on
17 attorney-client privilege or attorney work product doctrine,
18 and it continues from there.
19 THE COURT: What triggers the defendants' obligation
20 to give notice that they wanted to use the remainder -- use
21 materials that had otherwise been redacted?
22 MS. BAKER: Your Honor, the order itself makes clear
23 that the redacted contents is all of those portions that were
24 already removed in the minimization and redaction processes
25 that had been completed before this protective order was
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1 drafted. So there isn't any specific triggering event. It
2 just talks about if the defendants wish to use or disclose
3 redacted content that they are supposed to give the 14 days
4 notice.
5 THE COURT: All right. Mr. Ruhnke?
6 MR. RUHNKE: Just a quick comment on that. That was
7 obviously entered before your Honor made the rulings on the
8 broader issues of privilege and if there is anything that is
9 going to be a triggering event it would ultimately be getting
10 final transcripts from the government. We don't even have yet
11 final transcripts of what they want to offer. It's hard to
12 know what we want to argue by way of completeness, whether from
13 materials that are potentially privileged, although I think
14 Mr. Smith's announcement that he wasn't going to appeal any
15 aspect of your Honor's ruling and had no problem with the offer
16 of the notebooks that were put forward, I hope presages that
17 there will not be a further privilege or work product
18 interjected but I don't think we are in violation of the order
19 I guess is what I am trying to say. And also, just to be fair
20 to both sides, I think there is a misunderstanding between the
21 discussions counsel are having for the last two weeks about
22 wanting -- when we say wall to wall or end to end, we didn't
23 mean end to end redacted.
24 So I think there has to be an equitable issue here. I
25 think both sides have been, to give credit to both sides, so I
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1 am talking at cross purpose. Just practically speaking I
2 intend tonight to write a letter to Mr. Schmidt and fax a copy
3 to his office with a copy to the court and a letter to the
4 government and let him know there is an emergency to hearing
5 his position on this issue.
6 MR. TIGAR: Your Honor, to echo Mr. Ruhnke's comments,
7 I interpreted your Honor's order as a cross designation
8 requirement because that is essentially what I thought it was
9 and I never thought I am under any duty to cross designate
10 until I see a designation.
11 MS. BAKER: Your Honor, in light of the fact that the
12 order specifically uses the phrase redacted content, it was
13 clearly intended to refer to the very content that has been out
14 all along from what the trial team has and not to any further
15 excerpting that the trial team might have contemplated which,
16 as I said before, I believe we made clear in the weeks leading
17 up to the trial that there wasn't going to be any further
18 excerpting so that is beside the point anyway. But the order
19 could not be more explicit that it's about the redacted content
20 which is the content that has been out all along.
21 THE COURT: Well, this subject got introduced to me as
22 something that the parties wanted to discuss with me and I
23 don't want to be premature in any way. And what I suggest to
24 you now may not even be practical based upon where you are, but
25 the defendants say they want the rest of the recordings in and
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1 they will notify Mr. Schmidt and they expect Mr. Schmidt and
2 his client will not have any objections. The government
3 doesn't know -- the government trial team doesn't know what is
4 in the rest of the transcripts but says we would probably take
5 the position that we would rather see it all go in as part of
6 our case rather than do it piecemeal, part now, part later.
7 You should think about that. I can't resolve these issues
8 right now. I don't know what the practicality is of finished
9 transcripts of the entire prison visits, not the redacted
10 minimized versions of the prison visits.
11 If it's the government's position that, gee, if the
12 defendants are going to offer the rest of the prison visits in
13 their own case we would rather see the whole visits come in as
14 part of our case, then all of that counsels for attempting to
15 get this done sooner rather than later, quickly, et cetera, and
16 I am just dealing with the tapes of the prison visits
17 themselves. I don't know what the volume of the prison calls
18 are and what the burden is with respect to unredacted and calls
19 on the prison calls, what kind of volume is that?
20 MS. BAKER: Your Honor, the case originally involved a
21 total of 63 calls. The government had previously indicated
22 that it would use not more than 25 particular calls at the
23 trial and we are continuing to try to whittle down that list.
24 We don't expect that we will actually use anywhere near that
25 number. So we haven't specified yet finally which ones.
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1 THE COURT: Both sides are being very expressive in
2 their hand motions to me and head motions at various points.
3 The defendants' gestures at that point were we don't have the
4 telephone calls. We have the universe of calls but we don't
5 have what the government attempts to offer so we can't
6 reasonably make a 106 designation on the prison calls.
7 MS. BAKER: Your Honor, that is true and not true in
8 the following way: The defendants have long had full verbatim
9 transcripts, drafts of the prison calls and minimized redacted
10 drafts of the prison calls, so for any prison call they have
11 long known those parts that are the "redacted content" to use
12 the term from the stipulation and protective order or the
13 protective order, whichever it is. So as to issues that the
14 defendants might wish to raise as to any redacted content from
15 any prison call, they know what that redacted content is.
16 I had said that when we decide finally which prison
17 calls we are going to use, we were thinking that we might
18 excerpt those further and I granted earlier in my argument that
19 we haven't done that yet and therefore the defendants, I agree,
20 are not in a position to make any further completeness
21 objection that might arise from further excerpting beyond the
22 minimizing and redacting. But they already know the list of 25
23 calls that are under consideration and which parts of those
24 calls have been minimized and redacted out and they have known
25 which parts of all the calls have been minimized and redacted
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1 out for a long time and which 25 calls are under consideration
2 since before we had the litigation with Mr. Schmidt, because I
3 know we had narrowed the universe down to the 25 by that point
4 because we only gave Mr. Schmidt those 25.
5 THE COURT: So with respect to the prison call in
6 order to avoid any -- if the defendants wish to offer any other
7 parts of the prison calls, the 25 prison calls, they should
8 make the request to Mr. Schmidt also. So both the prison
9 recordings, prison visits and the 25 phone calls.
10 MR. RUHNKE: Yes, your Honor. That is correct.
11 THE COURT: And when the issue is the content of the
12 prison visits and the transcripts of those and defendants'
13 current desire to have the full prison visits in and the full
14 telephone calls and if that is done quickly, that would seem to
15 be the way that -- the way to approach it. I am not telling
16 the government that they can now go and get access to all of
17 the other transcripts. That is not what is provided in the
18 order, but plainly the order contemplates that if there is no
19 objection and the defendants now seek to offer the remainder of
20 the prison visits and the 25 prison calls, then at that point
21 the government trial team would have the ability to look at
22 that and make a determination whether they are going to make
23 any objections to admitting that. Isn't that right?
24 MR. MORVILLO: Actually that is not right, your Honor.
25 That is not correct. What the order says is that the notice
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1 has to be given to the government and to Mr. Schmidt and there
2 is a week for privilege objections to be interposed. But
3 notice is given, my understanding from the order, is by
4 disclosure of those portions that they want to use. So when
5 notice is given the government should be receiving portions
6 that have been redacted or minimized out so they can also
7 consider the content of those transcripts.
8 (Continued on next page)
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1 THE COURT: Before there's Abdel Rachman's counsel.
2 MR. MORVILLO: Yes, your Honor. In other words, if
3 they're seeking to breach the attorney/client privilege, in
4 defense of the charges in this case, under the terms of the
5 protective order, the government, in fairness, is also -- it is
6 my understanding, without looking at it, those portions of the
7 redacted minimized transcripts that the defense seeks to use.
8 THE COURT: Mr. Ruhnke?
9 MR. RUHNKE: Still doesn't strike me as correct. In
10 order to -- it seems to me what we need to do, your Honor,
11 respectfully, is take it a step at a time. To find out if
12 there is going to be an imposition of a privilege objection by
13 Sheikh Omar Rachman's counsel to any of the prison calls, any
14 of the prison visits he's had prison visits, or any of the
15 materials that have been the subject of the privilege
16 litigation generally. If there is no such objections and if
17 the government tells us what it wants to offer, we can then put
18 this context in 106 what we want to offer. When we said we
19 want to offer everything, it is because -- offer --
20 THE COURT: Wall-to-wall.
21 MR. RUHNKE: It is because context is everything.
22 THE COURT: Wall-to-wall.
23 MR. RUHNKE: It is because context is everything in
24 this case.
25 THE COURT: I understand that. But then the
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1 government has to be given access to that.
2 MR. RUHNKE: That's right.
3 THE COURT: And the only issue in my mind, and -- it
4 took Mr. Schmidt one day last time to say Mr. Yousry wants to
5 use the rest, I'm --
6 MR. RUHNKE: No problem.
7 THE COURT: No problem.
8 MR. RUHNKE: Correct. And your Honor, not to
9 interrupt -- and to say there would be no appeals taken to your
10 Honor's orders, anybody had an opportunity or the right to take
11 an interlocutory or direct appeal of the privilege issue,
12 Sheikh Omar Rachman's attorney, and that included the waiver
13 finding on the Court's part. And as to the waiver finding,
14 although your Honor ruled discretely on materials presented to
15 it, the waiver findings on the part of the Court, I think
16 fairly read, cover the waterfront as far as privilege is
17 concerned, as far as the assertion is concerned. And I think
18 Mr. Rahman's counsel recognize at least that much.
19 So we're talking about -- if the answer is how far can
20 this go -- I assume Mr. Schmidt is in New York City and not
21 somewhere on vacation. I don't know that. But I think this
22 part of it at least can be resolved.
23 THE COURT: He shares office space --
24 MR. RUHNKE: I'm sorry?
25 THE COURT: He shares office space.
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1 MR. RUHNKE: With Mr. Tigar. And I was going to ask
2 them if he was around.
3 But in any event, the issue -- I think that issue can
4 be resolved very quickly. If for any reason there would be an
5 interposition of privilege that your Honor would somehow
6 sustain on the first level, that would be the next issue of how
7 fair is it now for privilege to be used as a sword against
8 Mr. Yousry and Ms. Stewart, and your Honor discussed that by
9 way of reserving, but we would then reach that issue.
10 I don't think it's going to be necessary to reach any
11 of those issues. And I think -- again, you know, maybe I'm
12 wrong -- I think we can get this part of it resolved quickly.
13 I would like to know when the government is going to
14 say reasonably they can tell us when the transcripts are no
15 longer drafts and when they represent what the government wants
16 to offer of the prison telephone calls. And I don't believe
17 we've gotten even draft transcripts in the sense of the final
18 group or excerpts or whatever the government wants to present
19 of the prison visits. At least, not any recent transcripts.
20 MS. BAKER: To address Mr. Ruhnke's latter point
21 first, as I thought I made clear earlier, the government's
22 intention was to offer the entirety of the minimized redacted
23 transcripts of the prison visits that the government has
24 produced. And although they have been produced marked draft,
25 the more recent drafts, we believe, are essentially going to be
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1 the same as the final transcripts, just as happened with the
2 regular telephone calls. There were in some instances early
3 drafts, and then there were later drafts, and the final ones
4 were essentially the same as the later draft. So we're going
5 to be rolling out the final prison visit transcripts as soon as
6 we can. We hope to begin later this week. But we expect that
7 they will be essentially identical to the more recently
8 produced drafts, and it was our intention to offer those
9 minimized redacted transcripts in their entirety.
10 Turning back to the protective order, the protective
11 order is, in fact, explicit that once a defendant indicates a
12 desire to use or disclose, quote, any redacted content, the
13 following is supposed to be the procedure, and this is
14 Paragraph 2 on Page 5 of the protective order: "The defendant
15 produces the specific portions of the redacted content for
16 which disclosure or use is sought to counsel for Abdel Rahman,
17 counsel for codefendants, the trial AUSAs (or to the government
18 wall team if disclosure to the trial AUSAs would reveal defense
19 strategy) and the Court, no less than 14 days prior to the date
20 upon which such disclosure or use is to occur."
21 So as drafted and signed by the Court, the protective
22 order explicitly provides for the government trying team to
23 have access to the material at the same time as counsel for
24 Abdel Rahman and its defense is supposed to be providing the
25 specific additional portions that they are seeking to use.
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1 THE COURT: I'm not going to do anything to modify the
2 order that's already in place. I'm -- I haven't been asked to
3 do that. But if Mr. Ruhnke can successfully obtain from
4 Mr. Schmidt agreement from Sheikh Rahman, quickly, that would
5 seem to compress the entire schedule in a way that would be
6 useful to both sides.
7 The order is there to protect everyone's rights. But
8 isn't that right? If it were able to be accomplished, the
9 government trial team would get access to those materials and a
10 process to use them much more quickly than had originally been
11 thought at the time that the order -- stipulation and order
12 were entered.
13 MS. BAKER: There are, I think, a few different
14 aspects to this question kind of intertwined here. Obviously
15 if Mr. Ruhnke is successful in reaching Mr. Schmidt quickly and
16 if Mr. Schmidt indicates that Sheikh Abdel Rahman is not going
17 to interpose any further privilege objection, then that aspect
18 of the order, that is, a timeframe for the interposition of
19 privilege objections to occur, that aspect may be accomplished
20 more quickly.
21 Part of what the order also was designed to address
22 was the government having some lead time to be able to figure
23 out what the government would seek to do in light of the
24 defense introducing new pieces of evidence that we on the trial
25 team have not had access to.
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1 THE COURT: That's right. And it was meant to also
2 provide if there are objections, some timeframe for the Court
3 to decide them.
4 MS. BAKER: Of course.
5 THE COURT: I understand that. I agree.
6 MS. BAKER: And the government would submit that if
7 what has happened here today is the defendants giving notice
8 that they wish all of the redacted content from all of the
9 prison visits to be used, then by the literal terms of the
10 proactive order, as it is currently in place, that would seem
11 to the government to indicate that we can go back to our office
12 now and begin reviewing the early draft transcript of the
13 complete versions of the prison visits. If the Court is
14 directing that we not do that and await Mr. Ruhnke hearing some
15 information from Mr. Schmidt --
16 THE COURT: Yes. I'm not going to bury the protective
17 order. On the other hand, as a matter of prudence, I think
18 that time will be better served and a resolution of the issue
19 will be better served by holding off on the government trial
20 team seeing this until we at least allow Mr. Ruhnke to try and
21 get a prompt response from Mr. Schmidt. Which may
22 substantially accelerate the whole schedule. And maybe I'm
23 simply underestimating the practicalities of the situation.
24 But sufficient unto the day.
25 MS. BAKER: Your Honor, my reason for pressing the
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1 Court on this issue and asking the Court to allow the
2 government to proceed under the terms of the protective order
3 itself is the issue of the transcript of the calls. I mean, so
4 far the defendants have not come forward, for example, and
5 said, here's our final or almost final version of the
6 transcript of the redacted content, so here, government, tell
7 us if you think this is accurate. So right now, if anybody is
8 going to be -- if the redacted content is coming in, either in
9 the government's case or the defense case, or some combination
10 of the two, the only transcript is that early rough draft. And
11 we need to have access to that as soon as possible to assess
12 the state of that and figure out what that means as far as the
13 use of those motions of the visits.
14 MR. RUHNKE: Your Honor, to reply to that last point,
15 we do have transcripts that are basically ready to go of the
16 prison telephone calls and the prison visits, which as soon as
17 we resolve this issue, we can turn over to the government. We
18 can turn them over tomorrow, if it comes to that. And we're
19 preparing the final version of the entire Yousry materials to
20 turn over to the government shortly. We're just doing some
21 cleanup work. These are almost final drafts. So yeah, we
22 haven't forgotten about doing that.
23 MR. TIGAR: Our interest, your Honor, is somewhat more
24 limited. The parts in which we are interested are those in
25 which Ms. Stewart or some other English speaker is speaking.
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1 And as to that, there's not a transcript issue, there's just an
2 authenticity of the tape issue, but we support the application
3 Mr. Ruhnke has made.
4 THE COURT: I'm still inclined to hold off, Ms. Baker,
5 on giving you access, giving the government trial team access,
6 until, at the least, particularly with a representation that
7 there are transcripts that can be reviewed so that they may not
8 be -- the government have rough transcripts. The defendant
9 have transcripts with respect to the rest of the visits and
10 calls. There will be, you know, a process of trying to work it
11 out between you, but holding off for a day to get a report from
12 Mr. Ruhnke and Mr. Schmidt is certainly reasonable.
13 That would lead me not to rule on the transcripts
14 until -- not to rule on the actual tapes until I get a further
15 report on where we are. If the parties can give me anything
16 they wish on the issue of whether there's sufficient evidence
17 with respect to authenticity.
18 MR. TIGAR: Your Honor, we have briefed that. I mean,
19 I've really gone through all the law I know.
20 THE COURT: Okay, that's fine.
21 MR. TIGAR: And with respect to these other issues,
22 the hearsay and the grand jury transcript, I don't intend to
23 write your Honor a letter about that because we're not there
24 yet.
25 THE COURT: Okay.
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1 MR. TIGAR: I mean, I think it's sufficient unto the
2 day of the evidentiary issues thereof. And in the meantime I
3 will talk to Mr. Morvillo and Mr. Barkow and see if we can't
4 get a little closer together.
5 THE COURT: Okay. If I have to rule at this moment
6 with respect to the relevance of the cross-examination of the
7 agent with respect to the other FISA issue, I would be inclined
8 to find that it is not relevant to the cross-examination of
9 that witness.
10 MR. TIGAR: That would certainly affect Mr. Morvillo's
11 negotiating position, your Honor, whether we discuss it. I'll
12 rethink it in light of your Honor's views.
13 THE COURT: Okay. Anything else? All right. See you
14 tomorrow at --
15 MR. MORVILLO: Your Honor, would you like additional
16 briefing on from the government on the authentication issue
17 or --
18 THE COURT: Only if there are other cases that you
19 think should be brought to my attention specifically with
20 respect to this degree of testimony with respect to the
21 authentication of tapes, any other cases that you think are
22 directly on point. And the basic principals of those I've
23 already laid out.
24 It actually does not seem to me that there is -- that
25 the foundation is much different from the foundation in other
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1 cases where you have a tape machine, a person authenticates the
2 fact that they were there, they were present throughout the
3 taping, there were no breaks, they tape-recorded everything.
4 Here are the tapes that were put into the machine, that came
5 out of the machine. I initialed them. I say, This is the --
6 this is the tape. Go listen to the tape.
7 There is not an audibility question that's been raised
8 that the tapes are so inaudible that the audible portion of the
9 tapes make the tapes themselves unreliable.
10 As to breaks in the chain of custody, that goes to
11 weight rather than admissibility. Here are the agents who
12 actually were there and did the taping and initialed the tapes
13 and brought them.
14 Now, you can check if there are any cases that
15 suggested that's insufficient or on those facts suggest that
16 that's insufficient, so -- so that's the -- all of the general
17 briefing with respect to the admissibility of tape recordings
18 and the standards to be applied, I've gone over those same
19 standards before. The only issue is now with respect to these,
20 are there any other cases that either side wants to proffer to
21 me that this is -- these are sufficient or insufficient? I
22 leave that to you.
23 MR. MORVILLO: Just so I'm clear, you don't need
24 additional briefing, repetitive briefing?
25 THE COURT: I think I've stated what the state of the
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1 record is.
2 MR. MORVILLO: You don't need us to repeat what we've
3 said in other briefs about authentication and admissibility.
4 THE COURT: No. In fact, I went further in the sense
5 of further research and cases when I ruled on the authenticity
6 of the prior tape recordings. And I'm satisfied that my
7 opinions regarding the prior tape recordings fairly sets out
8 the state of the law in the Second Circuit. The only thing I
9 said was if there are any other specific cases, facts, one way
10 or the other the parties want to bring to my attention, you're
11 welcome to do that.
12 Anything else?
13 MS. BAKER: Your Honor, I don't recall if you've ruled
14 on my request that that letter that I ended up filing be under
15 seal --
16 THE COURT: You have an extra copy of it, too?
17 MS. BAKER: That is an extra copy I handed up. Would
18 you like another one as well?
19 THE COURT: Sure, because I've endorsed the letter
20 indicating that it can be filed, docketed. So we'll docket
21 that letter, and you've given me an extra copy. Okay?
22 MS. BAKER: Thank you.
23 THE COURT: See you tomorrow morning at 9:00 o'clock.
24 9:00 o'clock.
25 (Trial adjourned to July 20, 2004, @ 9:00 a.m.)
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1 INDEX OF EXAMINATION
2 Examination of: Page
3 SCOTT KERNS (recalled)
4 Direct By Ms. Baker . . . . . . . . . . . . 3824
5 Cross By Mr. Tigar . . . . . . . . . . . . 3832
6 Redirect By Ms. Baker . . . . . . . . . . . 3856
7 Recross By Mr. Tigar . . . . . . . . . . . . 3863
8 Redirect By Ms. Baker . . . . . . . . . . . 3865
9 Recross By Mr. Tigar . . . . . . . . . . . . 3868
10 CYNTHIA MCGRATH
11 Direct By Mr. Morvillo . . . . . . . . . . . 3885
12 Cross By Mr. Ruhnke . . . . . . . . . . . . 3908
13 Cross By Mr. Tigar . . . . . . . . . . . . . 3910
14 RICHARD L. OSTROM
15 Direct By Mr. Morvillo . . . . . . . . . . . 3919
16 Cross By Mr. Tigar . . . . . . . . . . . . . 3928
17 DAVID PRICE
18 Direct By Mr. Morvillo . . . . . . . . . . . 3931
19 Cross By Mr. Tigar . . . . . . . . . . . . . 3940
20 o 0 o
21
22
23
24
25
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1 GOVERNMENT EXHIBITS
2 Exhibit No. Received
3 2031 . . . . . . . . . . . . . . . . . . . 3811
4 2002, 2003, 2010S, 2013, 2013T, 2020,
5 2020T, 2021, 2022, 2023, 2023T, 2025,
6 2026, 2028, 2029, 2029T, 2037, 2041,
7 2046A, 2046B, 2046D, 2052, 2057, 2057T,
8 2066, 2066T, 2067, 2068, 2070, 2070T-A,
9 2073, 2083, 2083A . . . . . . . . . . . . . 3812
10 1300, 1301, 1300L, 1301L . . . . . . . . . . 3871
11 1760C . . . . . . . . . . . . . . . . . . 888
12 1760D . . . . . . . . . . . . . . . . . . 3899
13 1761C . . . . . . . . . . . . . . . . . . 3934
14 o 0 o
15
16
17
18
19
20
21
22
23
24
25
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