12264 51C5SAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 January 12, 2005 8 9:35 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12265 51C5SAT1 1 (Trial resumed; jury not present) 2 (At side bar) 3 THE COURT: Good morning, all. 4 MR. TIGAR: Good morning, your Honor. 5 MS. SHELLOW-LAVINE: Good morning, your Honor. 6 THE COURT: A few things. 7 First, Dan Donnelly, who has been the Marshal, will 8 head the detail of court security officers and the like to 9 protect the jurors in the course of their deliberations so he 10 will be the Marshal who is sworn. 11 The traditional oath Mr. Fletcher gives to the marshal 12 ends with, "You shall suffer no one to talk to the jurors 13 without direction of the Court unless it be to ask whether they 14 have agreed upon a verdict." 15 Mr. Fletcher will say what it usually is. 16 THE DEPUTY CLERK: The oath goes as follows: 17 You do solemnly swear that you shall keep the jurors 18 impaneled and sworn in some private and convenient place, you 19 shall suffer no one to speak to them, nor shall you speak to 20 them yourself without direction of this Court, unless it be to 21 ask if they've agreed upon a verdict, so help you God. 22 THE COURT: The marshal understands that neither he 23 nor anyone on the staff would ask, sua sponte, the jurors that 24 question. Now, I'm perfectly happy to have Mr. Fletcher leave 25 that off the oath, the last part. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12266 51C5SAT1 1 MR. RUHNKE: That's fine with us, your Honor, I think. 2 THE COURT: Everyone agrees? Okay. 3 I have put in some additional things in the initial, 4 for after the jurors come back after we've had the robing room 5 conference, or after we've had the conference. I usually do 6 that in the robing room. If you want to do it in open court I 7 can do it in open court after the jurors have left. 8 MR. RUHNKE: There doesn't seem to be any reason to do 9 it in the jury room if the jury is not here. 10 THE COURT: Okay. 11 I have added a couple of things to the instructions 12 and I will give you copies, one is a response to the marshal's 13 request. 14 One is I put in: You can deliberate as long as you 15 wish on any day and you can deliberate on Fridays, if you wish. 16 Today, however, I ask that you adjourn for the day at 4:00 p.m. 17 I have also added: When you give any notes to the 18 marshal please stop deliberating when you open the door to the 19 jury room because your deliberations are confidential. 20 I have also added: In a moment Mr. Fletcher will 21 swear the marshal and the jurors will go to deliberate. I also 22 advise you that once Mr. Fletcher has sworn the marshal, 23 Mr. Fletcher also will not be able to talk to you during your 24 deliberations. Only 12 jurors go to deliberate so I ask that 25 jurors 13 through 16 get their things and return to the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12267 51C5SAT1 1 box after the other jurors have gone to deliberate. I will 2 have some instructions for jurors 13 through 16. 3 Jurors 1 to 12 may now go to deliberate. The marshal 4 will take you initially to the jury room you have been using to 5 pick up your things, and then take you to the room where you 6 will be deliberating. 7 And I made copies of this so that all of you can have 8 it. 9 MR. PAUL: Your Honor, I know you suggest to tell the 10 jury that they can deliberate at their pleasure and schedule. 11 THE COURT: Right. 12 MR. PAUL: Is there any way we can get a response back 13 from them earlier, rather than later, with respect to the 14 Friday issue? 15 THE COURT: I tell them it would be helpful to us if 16 you gave us some advance notice whether you wish to deliberate 17 later on any given day and whether you wish to deliberate on 18 Friday. 19 MR. BARKOW: Your Honor, Monday is a holiday and the 20 Court is closed, is the jury going to be asked whether they 21 want to come in or are they not going to come in at all? 22 THE COURT: Mr. Fletcher says one juror brought up a 23 question whether they would sit on Monday and he said if you 24 deliberate, the pace of deliberations is up to you. 25 Does anyone want me to put in something about Monday? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12268 51C5SAT1 1 MR. PAUL: Yes. 2 MS. BAKER: Your Honor, think I perhaps there might 3 need to be arrangements made if the court house would otherwise 4 be closed. So if your Honor could, when you ask them to give 5 notice about Friday, also ask them to please give notice about 6 the Monday holiday? 7 THE COURT: All right. I will say if you -- it would 8 be helpful to us if you gave us some advance notice whether you 9 wish to deliberate later on any given day and whether you wish 10 to deliberate on Fridays or this coming Monday, which is a 11 holiday. 12 Now, there are a series of issues that I would like to 13 take up with you later after the jury has gone to deliberate 14 with respect to the verdict and the procedures. We have told 15 the jurors that they're not to indicate, that the procedure 16 with respect to a verdict is they're to give us a note that 17 there is a verdict, that they're not to tell us what the 18 verdict is. 19 Now, my -- I want to talk to you about this later 20 rather than now but there are a few issues. 21 The marshal would like some time to get the vans and 22 my inclination is, and you can think about it, is that if I got 23 a note that said there was a verdict, my inclination would be 24 to advise the parties and then we would have a period of time 25 while we waited before we brought the jury in and the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12269 51C5SAT1 1 returned the verdict in open court. 2 I got a letter from the press room which made two 3 requests, one is they want notice when there is a verdict so 4 that they can notify everyone else and they want the 5 opportunity to talk to the jurors afterwards, like in some area 6 of the court house provided, as Judge Cedarbaum did in the 7 Stewart case. 8 And you are welcome to inspect the letter. I'm 9 perfectly prepared to listen to the parties on this. My 10 reaction is, remains that I would be inclined to inform the 11 parties and that's it. 12 And with respect to the press, my inclinations are 13 that I tell the jurors they do not have to talk to anyone, they 14 are no longer under my instructions but they are not required 15 to talk to anyone. And in fact I would urge jurors, as I have 16 in the past, to protect the confidentiality of their own 17 communications. So, I -- strictly as a personal matter because 18 they're not under my instructions at all, they're not under my 19 orders at all. I urge them not to talk but it's completely up 20 to them. But I'm not about to -- my inclination is I'm not 21 about to set aside a room that the jurors would be taken to 22 away from their regular transportation. 23 Those are my inclinations and I set them out for you 24 in advance. I just raise these issues with you, they obviously 25 don't have to be decided now and I would like to talk to you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12270 51C5SAT1 1 about them later. 2 MS. BAKER: Your Honor, we appreciate the opportunity 3 to think about it and confer among ourselves. The only thing I 4 would raise as a question or a point for consideration is if 5 this request originates with the media and there is going to be 6 discussion of it or reaction to it, perhaps that discussion 7 among the parties and Court should take place in open court so 8 that the media will be aware of the outcome and can make any 9 application? 10 THE COURT: Sure. None of this is sealed. I don't 11 think I touched on anything that requires sealing at the side 12 bar. 13 MR. RUHNKE: Great. 14 MR. MORVILLO: Your Honor, how long do you anticipate 15 it would take to get the vans once -- 16 THE COURT: It can take an hour I'm told, though it 17 would be nice if it were shorter. 18 I made some -- I probably didn't make enough copies 19 but you are welcome to look at the letter from the press room. 20 The marshal also raised with me talking to the press 21 to make sure that there was no quick exit while I'm still -- 22 and I leave that up to the marshal. 23 All right? Okay. Ready to bring in the jury. 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12271 51C5SAT1 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, may I be excused for just a 3 minute, please? 4 THE COURT: Yes. 5 Erica, hold the jury. 6 (Pause) 7 THE COURT: Erica, we're ready for the jury. 8 (Jury present) 9 THE COURT: Good morning, ladies and gentlemen. 10 THE JURY: Good morning, your Honor. 11 THE COURT: As always, it's good to see you all. 12 Ladies and gentlemen, I am about to charge you on the 13 law that you will apply to the facts as you find them. It is a 14 tradition that at this point, before I charge you on the law, 15 the clerk makes a pronouncement in the court. 16 Mr. Fletcher? 17 THE DEPUTY CLERK: Ladies and gentlemen, the Court is 18 about to charge the jury on the law. Please be quiet during 19 the Court's charge so that the Court can have the complete 20 attention of the jury. 21 Your Honor. 22 THE COURT: Ladies and gentlemen of the jury, I am now 23 about to instruct you on the law that you will apply to the 24 facts in this case. You will then determine the facts in 25 accordance with my instructions on the law. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12272 51C5SAT1 Jury Charge 1 As I told you during your selection, you are critical 2 to the administration of justice, and I hope you fully 3 appreciate your importance. It is a tradition and a 4 significant safeguard of our individual liberties that parties 5 involved in criminal matters have a jury, chosen from their 6 community, decide questions of fact, and on that basis return a 7 verdict. 8 I will now explain to you my role and your role. As 9 to the charges presented in this case, it is your duty to 10 decide whether or not the guilt of each of the defendants has 11 been proved beyond a reasonable doubt. You are the sole judges 12 of the facts. I, as the Judge, do not find the facts. Rather, 13 you, the members of the jury, find the facts. That is a very 14 great responsibility that you must exercise with complete 15 fairness and impartiality. Your decision is to be based solely 16 on the evidence or the lack of evidence. It may not be 17 influenced by bias, prejudice, or sympathy. 18 My job includes two basic functions. First, I make 19 rulings on disputed issues of law. What rulings I have made 20 and why should not concern you. 21 My second function is very much your concern. It is 22 to instruct you on the law -- that is, to explain to you the 23 rules of law that govern your deliberations and to tell you 24 what the questions are that you must answer in reaching your 25 verdict. It is your duty to accept the law as I state it to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12273 51C5SAT1 Jury Charge 1 you in these instructions and apply it to the facts as you 2 decide them. 3 You must not substitute your concept of what the law 4 should be for what I tell you that the law is. Just as you 5 alone find the facts, I alone determine the law. And you are 6 duty bound to accept the law as I state it. For this same 7 reason, if any attorney has stated a legal principle different 8 from any that I state to you in my instructions, it is my 9 instructions that you must follow. You should also not single 10 out any instruction or any one word or phrase in an instruction 11 as alone stating the law, but you should consider my 12 instructions as a whole. 13 Accordingly, you will find the facts in this case but 14 you will accept the law as I state it to you and apply that law 15 to the facts as you find them. The result of your work will be 16 the verdict that you return. 17 In the course of these instructions, I will explain 18 general principles that will apply, the burden of proof to be 19 applied in this case, the charges in the indictment, the 20 substantive law to be applied to those charges, and, finally, I 21 will give you some concluding comments on your deliberations. 22 These instructions will take several hours to explain 23 and I ask that you pay strict attention. 24 I will provide a copy of these jury instructions to 25 you so that they will be available to you in the course of your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12274 51C5SAT1 Jury Charge 1 deliberations. 2 I remind you that in reaching your verdict, you are to 3 perform your duty of finding the facts without bias or 4 prejudice as to any party. You must remember that all parties 5 stand as equals before a jury in the courts of the United 6 States. You must disregard any feelings you may have about any 7 of the defendants' race, ethnicity, religion, national origin, 8 sex or age. The issues in this case are not about any 9 defendant's gender, race, ethnicity, national origin, or 10 religion, but rather whether the government has proved the 11 charges in the indictment beyond a reasonable doubt. All 12 persons are entitled to the presumption of innocence and the 13 government has the burden of proof, as I will discuss in a 14 moment. 15 It would also be improper for you to allow any 16 feelings you might have about the nature of the crimes charged 17 to interfere with your decision-making process. 18 The fact that the government is a party and the 19 prosecution is brought in the name of the United States does 20 not entitle the government or its witnesses to any greater 21 consideration than that accorded to any other party. By the 22 same token, you must give it no less consideration. The 23 government and each of the defendants stand on equal footing 24 before you. Your verdict must be based solely on the evidence 25 or the lack of evidence. For the same reasons, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12275 51C5SAT1 Jury Charge 1 personalities and the conduct of counsel are not in any way in 2 issue. If you formed opinions of any kind as to any of the 3 lawyers in the case, favorable or unfavorable, whether you 4 approved or disapproved of their behavior, those opinions 5 should not enter into your deliberations. You are required to 6 try the issues that have been presented to you according to the 7 oath that you have taken as jurors in which you promised that 8 you would well and truly try the issues joined in this case and 9 a true verdict render. If you follow that oath and try the 10 issues without fear or prejudice or bias or sympathy, you will 11 arrive at a true and just verdict. 12 In determining the facts, you must rely upon your own 13 recollection of the evidence. What is evidence? Evidence 14 consists of the testimony of witnesses, the exhibits that have 15 been received into evidence, stipulations between the parties, 16 and any facts of which I have taken judicial notice. 17 The statements and arguments made by the lawyers are 18 not evidence. Their arguments are intended to convince you 19 what conclusions you should draw from the evidence or lack of 20 evidence. You should weigh and evaluate the lawyers' arguments 21 carefully. But you must not confuse them with the evidence. 22 As to what the evidence was, it is your recollection that 23 governs, not the statements of the lawyers. 24 In this connection, you should bear in mind that a 25 question put to a witness is never evidence. It is only the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12276 51C5SAT1 Jury Charge 1 answer, in combination with the question, which is evidence. 2 One exception to this is that you must not consider any answer 3 that I directed you to disregard, or that I ordered to be 4 stricken from the record. You are not to consider such answers 5 in any way. 6 Furthermore, if I gave you any limiting instructions 7 with respect to testimony or exhibits, you are required to 8 follow those instructions. 9 I am now going to say a few words on the subject of 10 direct and circumstantial evidence. Those are -- there are two 11 types of evidence that you may properly use in deciding whether 12 or not a defendant is guilty of the crimes with which that 13 defendant is charged. 14 One type evidence is called direct evidence. Direct 15 evidence of a fact in issue is presented when a witness 16 testifies to that fact based on what the witness personally 17 saw, heard, or observed. In other words, when a witness 18 testifies about a fact in issue which is known of the witness' 19 own knowledge -- by virtue of what the witness sees, feels, 20 touches, or hears -- that is called direct evidence of that 21 fact. 22 The second type of evidence is circumstantial 23 evidence. Circumstantial evidence is evidence that tends to 24 prove a disputed fact indirectly by proof of other facts. 25 There is a simple example of circumstantial evidence that is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12277 51C5SAT1 Jury Charge 1 often used in this court house. 2 Assume that when you came into the court house this 3 morning the sun was shining and it was a nice day outside. 4 Assume that the courtroom blinds were drawn and you could not 5 look outside. As you were sitting here, someone walked in with 6 an umbrella that was dripping wet. Then, somebody else walked 7 in with a raincoat that also was dripping wet. 8 Now, you cannot look outside the courtroom and you 9 cannot see whether or not it is raining, so you have no direct 10 evidence of that fact. But, on the combination of facts that I 11 have asked you to assume, it would be reasonable and logical 12 for you to conclude that it has been raining. 13 That is all there is to circumstantial evidence. You 14 infer on the basis of reason and experience and common sense 15 from an established fact the existence or the nonexistence of 16 some other fact. 17 I have spoken to you of inferences to be drawn from 18 the evidence. This is what the law means when it speaks of 19 inferring one fact from another. An inference is the deduction 20 or conclusion that reason and common sense prompt a reasonable 21 mind to draw from facts that have been proven by the evidence. 22 The process of drawing inferences from facts is not a matter of 23 guesswork or speculation. Not all logically possible 24 conclusions are legitimate or fair inferences. Only those 25 inferences to which the mind is reasonably led or directed are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12278 51C5SAT1 Jury Charge 1 fair inferences from direct or circumstantial evidence in the 2 case. Whether or not to draw a particular inference is, of 3 course, a matter exclusively for you, as are all determinations 4 of fact. 5 Many material facts, such as state of mind, are rarely 6 susceptible to proof by direct evidence. Usually such facts 7 are established by circumstantial evidence and the reasonable 8 inferences you draw. Circumstantial evidence may be given as 9 much weight as direct evidence. The law makes no distinction 10 between direct and circumstantial evidence but simply requires 11 that, before convicting a defendant, the jury must be satisfied 12 of the defendant's guilt beyond a reasonable doubt, based on 13 all of the evidence in the case. 14 You should draw no inference -- you should draw no 15 inference or conclusion for or against any party by reason of 16 lawyers' objections or my rulings on such objections. Counsel 17 have not only the right but the duty to make legal objections 18 when they think that such objections are appropriate. You 19 should not be swayed against the government or the defendants 20 simply because counsel for any party has chosen to make an 21 objection. 22 It is my function to cut off counsel from questioning, 23 to strike remarks, and to reprimand counsel when I think it is 24 necessary. But you should draw no inferences -- you should 25 draw no inference from that. It is irrelevant whether you like SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12279 51C5SAT1 Jury Charge 1 a lawyer or whether you believe I like a lawyer. The issue 2 before you is not which attorney is more likable -- the issue 3 is whether the government has sustained its burden of proof. 4 You should consider all the evidence in this case no 5 matter what party may have introduced or adduced that evidence. 6 In weighing the evidence presented to you, your 7 assessment should not be influenced by how much time the 8 lawyers spent on particular topics, or how emphatically or 9 eloquently they spoke about particular topics. Similarly, it 10 is not who introduced an exhibit, or who called a witness, or 11 who did not question a witness that is important, but rather 12 what the exhibit or the witness' testimony proves. It is for 13 you alone to decide the weight and importance of evidence you 14 heard; one of your principal tasks is to separate the important 15 from the unimportant, and focus on what you find is important. 16 Evidence that took five minutes to present may be more 17 important than evidence that took an entire day to present. It 18 is not how much time or effort the lawyers spent on particular 19 evidence, but what that evidence proves, that is important. 20 I asked the lawyers not to repeat questions asked by 21 other lawyers. You may, of course, consider the evidence 22 adduced by any lawyer in considering the evidence or lack of 23 evidence with respect to each defendant. You must consider the 24 charges against each defendant separately and the evidence or 25 lack of evidence with respect to each defendant and each charge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12280 51C5SAT1 Jury Charge 1 separately. But, in doing so, you may consider the evidence 2 adduced by any of the parties. Thus, for example, you may 3 consider any impeachment evidence adduced by one lawyer in 4 considering the evidence or lack of evidence with respect to 5 the charges against each of the defendants. 6 You have also noticed throughout the trial that 7 counsel for various defendants have consulted with each other 8 and have divided the work of the trial in an effort to 9 facilitate their presentation and to avoid duplication. The 10 fact that defense counsel have consulted and cooperated with 11 each other in the conduct of their defense is not to be 12 considered by you as having any significance with respect to 13 the issues in the case. The issue of each defendant's guilt is 14 personal and you must make a separate determination as to 15 whether or not each defendant's guilt has been proven beyond a 16 reasonable doubt. 17 In making that judgment, you are to disregard entirely 18 the circumstances that counsel for various defendants have 19 worked together during the trial. Indeed, especially in a case 20 of this length, it would be unusual and wasteful of time and 21 effort if counsel did not share the burden of the defense. 22 During the trial, I instructed you that I had taken 23 judicial notice of certain facts which I believe are not 24 subject to reasonable dispute. I have accepted those facts to 25 be true, even though no evidence has been introduced proving SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12281 51C5SAT1 Jury Charge 1 them to be true. You may but are not required to agree that 2 these facts are true. 3 Other than the facts of which I have taken judicial 4 notice, nothing I say is evidence. If I comment on the 5 evidence during my instructions, do not accept my statements in 6 place of your recollection. It is your recollection that 7 governs. 8 Also, do not draw any inference from any of my 9 rulings. The rulings I have made during trial are not any 10 indication of my views. Indeed, I have no opinion as to the 11 facts of this case, and you should not seek to find such 12 opinion in my rulings. 13 Further, do not concern yourself with what was said 14 during my discussions with counsel. Those discussions related 15 to rulings of law and not to matters of fact. 16 You should not be influenced in any way, or draw any 17 unfavorable inference against any party, because the lawyers 18 asked for a hearing out of the presence of the jury. It was 19 not that they were trying to conceal anything from you, or that 20 I was. It was merely that we had something to discuss. If we 21 could anticipate problems in advance, we did that; and rulings 22 were made out of your hearing so it would not be necessary for 23 you to be asked to disregard evidence. If we can, we try to 24 decide those matters out of your hearing so that if they are 25 not proper you do not hear them at all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12282 51C5SAT1 Jury Charge 1 Finally, at times I may have directed a witness to be 2 responsive to questions or to keep his or her voice up. At 3 times I may have questioned a witness myself. Any questions 4 that I asked or instructions that I gave were intended only to 5 clarify the presentation of evidence and to bring out something 6 that I thought was unclear. You should draw no inference or 7 conclusion of any kind, favorable or unfavorable, with respect 8 to any witness or any party in the case, by reason of any 9 comment, question, or instruction of mine. Nor should you 10 infer that I have any views as to the credibility of any 11 witness, as to the weight of the evidence, or as to how you 12 should decide any issue that is before you. That is entirely 13 your role. 14 You have seen exhibits in the form of charts and 15 summaries. Some of these charts and summaries were admitted 16 into evidence in order to save time and avoid unnecessary 17 inconvenience. You may ask for these charts and summaries 18 during your deliberations in the same way that you may ask for 19 any other exhibit in evidence. 20 As I explained during the trial, other charts and 21 summaries were shown to you in order to make the other evidence 22 more meaningful and to aid you in considering the evidence. 23 They were admitted as demonstrative aids for the testimony of a 24 witness. They are no better than the testimony and the 25 documents upon which they are based and, therefore, you are to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12283 51C5SAT1 Jury Charge 1 give them no greater consideration than you would give to the 2 test -- than you would give to the evidence upon which they are 3 based. 4 It is for you to decide whether these exhibits 5 correctly present the information contained in the testimony 6 and in the exhibits on which they were based. You are entitled 7 to consider these charts and summaries if you find that they 8 are of assistance to you in analyzing and understanding the 9 evidence. 10 The parties have offered evidence in the form of audio 11 and video recordings of telephone calls and in-person meetings. 12 The recordings were obtained without the knowledge of the 13 parties to the conversations but with the consent and 14 authorization of a court. The use of this procedure to gather 15 evidence is perfectly lawful and the parties are entitled to 16 use the recordings in this case. There were also certain other 17 recordings of speeches or sermons which were also obtained 18 pursuant to lawful means and which you can consider along with 19 all of the other evidence in the case. 20 You have heard disputes over the authenticity and 21 accuracy of certain telephone recordings. Therefore, I caution 22 you that you should scrutinize this evidence with care. The 23 reliability and weight of this evidence, as with all issues of 24 fact, is for you, the jury, to determine. 25 Some of the recordings contain portions that are in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12284 51C5SAT1 Jury Charge 1 English. The parties were permitted to display documents which 2 were prepared containing the parties' interpretation of what 3 appears on the recordings which have been received as evidence. 4 Those are displayed as an aid or guide to assist you in 5 listening to the recordings which are in evidence. Therefore, 6 when the recordings were played, I advised you to listen very 7 carefully to the recordings themselves. You, alone, should 8 make your own determination of what appears on the recordings 9 based on what you heard. If you think you heard something 10 differently from what appears on the transcript then what you 11 heard is controlling. 12 The sole exception to this instruction is any 13 transcript that the parties agreed is that the -- let me begin 14 that again. 15 The sole exception to this instruction is any 16 transcript that the parties agree the English on the transcript 17 is evidence of the spoken English on the recordings. This was 18 true of the transcripts of the February 19, 2000 prison visit. 19 Any party who did not offer the transcripts may 20 challenge the accuracy of the English transcripts. In the 21 final analysis, you are free to accept one of the parties' 22 transcriptions of the spoken English or to reject them both if 23 you think that you hear something different or if you believe 24 that the portion is simply unintelligible. 25 Let me say again, you, the jury, are the sole judges SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12285 51C5SAT1 Jury Charge 1 of the facts. 2 Some portions of the recordings are in Arabic. It was 3 necessary for the parties to obtain translations of those 4 conversations into English so that you, the jury, could 5 understand the recordings. The transcripts or portions of 6 transcripts of those conversations that are in Arabic embody 7 the testimony of the Arabic translators as to what appears in 8 the recordings. These transcripts were admitted into evidence. 9 In evaluating the translations, you should consider 10 the credibility and the qualifications of the translator 11 witnesses who testified to the accuracy of each of the 12 transcripts because each of these translations is, in effect, 13 the testimony of the translator witness as to what is on the 14 recording and what the statements on the recording mean in 15 English. 16 To the extent that you accept or reject the testimony 17 of those witnesses, you may accept or reject the transcripts 18 themselves of the Arabic conversations. Bear in mind that, in 19 some instances, the qualifications and testimony of the Arabic 20 translators were stipulated to. The parties can dispute the 21 meaning of the spoken Arabic or whether a particular word or 22 passage is simply unintelligible. Remember that the jury is 23 the ultimate fact finder and, as with all evidence, you may 24 give the transcripts such weight, if any, as you believe they 25 deserve. Let me say again, you, the jury, are the sole judges SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12286 51C5SAT1 Jury Charge 1 of the facts. 2 There are various rules that apply with respect to the 3 disclosure of communications between an attorney and a client. 4 These are rules of law. I have decided in this case that it is 5 legally permissible for to you hear, see and read certain 6 communications between Sheikh Omar Abdel Rahman and his 7 attorneys. I have also decided that it is permissible for the 8 attorneys, including defendant Lynne Stewart, to disclose 9 communication with their client. These are legal matters. 10 And, as with all the evidence in this case, I have decided it 11 is proper for you to hear it. The weight of the evidence, if 12 any, is for you to decide. 13 You have heard reference, in the arguments of counsel 14 in this case, to the fact that certain investigative techniques 15 were used by the government and that certain others were not 16 used. You may consider these facts in deciding whether the 17 government has met its burden of proof because, as I told you, 18 you should look to all of the evidence or lack of evidence in 19 deciding whether each of the defendants is guilty. However, 20 there is no legal requirement that the government use any of 21 these specific investigative techniques to prove its case. Law 22 enforcement techniques are not your concern. Your concern is 23 to determine, based on the evidence or lack of evidence, 24 whether or not the government has proved the guilt of each of 25 the defendants beyond a reasonable doubt. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12287 51C5SAT1 Jury Charge 1 In this case, you have heard evidence in the form of 2 stipulations. A stipulation of testimony is an agreement among 3 the parties that, if called as a witness, the person would have 4 given certain testimony. You must accept as true the fact that 5 the witness would have given that testimony. However, it is 6 for you to determine the effect to be given that testimony. 7 You have also heard evidence in the form of 8 stipulations that contained facts that were agreed to be true. 9 You should regard such agreed facts as true. 10 You have had the opportunity to observe all of the 11 witnesses. It is now your job to decide how believable each 12 witness was in his or her testimony. You are the sole judges 13 of the credibility of each witness and of the importance of his 14 or her testimony. 15 In making those judgments, you should carefully 16 scrutinize all of the testimony of each witness, the 17 circumstances under which each witness testified, and any other 18 matter in evidence which may help you to decide the truth and 19 importance of each witness' testimony. 20 You must now consider whether the witnesses were both 21 truthful and accurate. A witness could believe that he or she 22 was being truthful, yet be mistaken and not able to recall 23 facts accurately. Also, a witness could take the oath and 24 still intentionally testify falsely. How do you determine 25 whether the witness told the truth and whether the witness knew SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12288 51C5SAT1 Jury Charge 1 what the witness was talking about? It is really just a matter 2 of using your common sense, your good judgment, and your 3 experience. 4 First of all, consider how good an opportunity the 5 witness had to observe or hear what he or she testified about. 6 The witness may be honest, but mistaken. How did the witness' 7 testimony impress you? Did the witness appear to be testifying 8 honestly, candidly? Were the witness' answers direct or 9 evasive? Consider the witness' demeanor, the witness' manor of 10 testifying. Consider the strength and accuracy of the witness' 11 recollection. Consider whether any outside factors may have 12 affected a witness' ability to perceive events. Consider the 13 substance of the testimony, decide whether or not a witness was 14 straightforward or whether the witness attempted to conceal 15 anything. How does the witness' testimony compare with other 16 proof in the case? Is it corroborated or is it contradicted by 17 other evidence? 18 If a witness made statements in the past that are 19 inconsistent with his or her testimony during the trial 20 concerning facts that are at issue here, you may consider that 21 fact in deciding how much of his or her testimony, if any, to 22 believe. In making this determination you may consider whether 23 the witness purposely made a false statement or whether it was 24 an innocent mistake. You may also consider whether the 25 inconsistency concerned an important fact or whether it had to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12289 51C5SAT1 Jury Charge 1 do with a small detail, as well as whether the witness had an 2 explanation for the inconsistency and, if so, whether that 3 explanation appealed to your common sense. 4 How much you choose to believe a witness may be 5 influenced by the witness' bias. Does the witness have a 6 relationship with the government or the defendants which may 7 affect how the witness testified? Does the witness have some 8 incentive, loyalty or motive that might cause the witness to 9 shade the truth, or does the witness have some bias, prejudice, 10 hostility or affection that may have caused the witness, 11 consciously or not, to give you something other than a 12 completely accurate account of the facts the witness 13 testified -- the witness testified to? 14 In connection with your evaluation of the credibility 15 of the witnesses, you should specifically consider evidence of 16 resentment or anger which any witness may have toward any of 17 the defendants. Evidence that a witness is biassed, prejudiced 18 or hostile toward any of the defendants requires you to view 19 that witness' testimony with caution, to weigh it with care and 20 subject it to close and searching scrutiny. 21 In evaluating the credibility of the witnesses you 22 should take into account any evidence that the witness who 23 testified may benefit in some way from the outcome of this 24 case. Such an interest in the outcome -- such an interest in 25 the outcome creates a motive to testify falsely and may sway SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12290 51C5SAT1 Jury Charge 1 the witness to testify in a way that advances the witness' own 2 interests. Therefore, if you find that any witness whose 3 testimony you are considering may have an interest in the 4 outcome of this trial, then you should bear that factor in mind 5 when evaluating the credibility of the witness' testimony and 6 accept it with great care. 7 This is not to suggest that every witness who has an 8 interest in the outcome of a case will testify falsely. It is 9 for you to decide to what extent, if at all, the witness' 10 interest has affected or colored the witness' testimony. 11 In other words, what you must try to do in deciding 12 credibility is to size a person up in light of the witness' 13 demeanor, the explanations given, and in light of all the other 14 evidence in the case, just as you would in any important matter 15 where you are trying to decide if a person is truthful, 16 straightforward and accurate in that person's recollection. In 17 deciding the question of credibility, remember that you should 18 use your common sense, your good judgment, and your experience. 19 It is for you, the jury, and for you alone -- not the 20 lawyers, not any of the witnesses, and not me as the Judge -- 21 to decide the credibility of witnesses who appeared here and 22 the weight which their testimony deserves. 23 Let me now give you some additional instructions on 24 the issue of credibility. 25 You have heard testimony from experts in the course of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12291 51C5SAT1 Jury Charge 1 this trial. An expert is allowed to express an opinion on 2 those matters about which the expert has special knowledge and 3 training. Expert testimony is presented to you on the theory 4 that someone who is experienced in the field can assist you in 5 understanding the evidence or in reaching an independent 6 decision on the facts. 7 In weighing expert testimony, you may consider the 8 expert's qualifications, the witness' opinions, the reasons for 9 testifying, as well as all of the other considerations that 10 ordinarily apply when you are deciding whether or not to 11 believe a witness' testimony. You may give the testimony 12 whatever weight, if any, you find it deserves in light of all 13 the evidence in this case. You should not, however, accept any 14 expert witness' testimony merely because the witness is an 15 expert. Nor should you substitute it for your own reason, 16 judgment, and common sense. The determination of the facts in 17 this case rests solely with you. 18 You have heard the testimony of law enforcement 19 officials. The fact that a witness may be employed as a law 20 enforcement official does not mean that the witness' testimony 21 is necessarily deserving of more or less consideration, or 22 greater or lesser weight than that of an ordinary witness. 23 At the same time, it is quite legitimate for defense 24 counsel to try to attack the credibility of a law enforcement 25 witness on the grounds that the witness' testimony may be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12292 51C5SAT1 Jury Charge 1 colored by a personal or professional interest in the outcome 2 of the case. 3 It is your decision, after reviewing all the evidence, 4 whether to accept the testimony of any law enforcement witness 5 and to give to that testimony whatever weight, if any, you find 6 it deserves. 7 There are several persons whose names you have heard 8 during the course of the trial but who did not appear here to 9 testify. I instruct you that each party had an equal 10 opportunity or lack of opportunity to call any of these 11 witnesses. Therefore, you should not draw any inferences or 12 reach any conclusions as to what they would have testified to 13 had they been called. Their absence should not affect your 14 judgment in any way. 15 You should, however, remember my instruction that the 16 law does not impose on a defendant in a criminal case the 17 burden or duty of calling any witnesses or producing any 18 evidence. 19 The number of witnesses testifying concerning any 20 particular dispute is not controlling. You may decide that the 21 testimony of a smaller number of witnesses concerning any fact 22 in dispute is more believable than the testimony of a larger 23 number of witnesses to the contrary. 24 By the same token, you do not have to accept the 25 testimony of any witness who has not been contradicted or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12293 51C5SAT1 Jury Charge 1 impeached, if you find the witness not to be credible. You 2 also have to decide which witnesses to believe and which facts 3 are true. To do this, you must look at all the evidence, 4 drawing upon your own common sense and personal experience. 5 I have already instructed you on the criteria for 6 evaluating the credibility of witnesses. You should keep in 7 mind that the burden of proof is always on the government and 8 the defendants are not required to call any witnesses or offer 9 any evidence because they are presumed to be innocent. 10 You have heard testimony in this case about evidence 11 that was seized from several locations. Evidence obtained from 12 these searches was properly admitted in this case, and may 13 properly be considered by you. Whether you approve or 14 disapprove of how the evidence was obtained should not enter 15 into your deliberations. 16 You should, therefore, regardless of your personal 17 opinions, consider this evidence along with all the other 18 evidence in the case in determining whether the government has 19 proved each of the defendants' guilt beyond a reasonable doubt. 20 The weight of the evidence, if any, is for you to decide. 21 In a criminal case, a defendant cannot be required to 22 testify, but if a defendant chooses to testify, the defendant 23 is, of course, permitted to take the witness stand on the 24 defendant's own behalf. In this case, the defendants decided 25 to testify. You should examine and evaluate their testimony SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12294 51C5SAT1 Jury Charge 1 just as you would the testimony of any witness with an interest 2 in the outcome of this case. You should not disregard or 3 disbelieve their testimony simply because they are charged as 4 defendants in this case. 5 You have heard testimony from witnesses who have given 6 their opinion about good character and good reputation. This 7 testimony is not to be taken by you as the witness' opinion as 8 to whether the defendant as to which the witness testified is 9 guilty or not guilty. That question is for you alone to 10 determine. You should, however, consider this character and 11 reputation evidence together with all the other facts and all 12 the other evidence in the case in determining whether the 13 defendant you are considering is guilty or not guilty of the 14 charges. The weight of the evidence, if any, is for you to 15 decide. 16 Accordingly, if after considering all the evidence 17 including testimony about a defendant's good character and good 18 reputation, you find a reasonable doubt has been created, you 19 must acquit the defendant you are considering of all the 20 charges. 21 On the other hand, if after considering all the 22 evidence including that of a defendant's character and 23 reputation, you are satisfied beyond a reasonable doubt that 24 the defendant you are considering is guilty, you should not 25 acquit the defendant merely because you believe the defendant SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12295 51C5SAT1 Jury Charge 1 to be a person of good character and good reputation. 2 (Continued next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12296 51CMSAT2 Jury Charge 1 THE COURT: Although the defendants have been 2 indicted, you must remember that an indictment is only an 3 accusation. It is not evidence. The defendants have pleaded 4 not guilty to the indictment. In so doing, the defendants have 5 denied the allegations in the indictment against them. 6 As a result of each of the defendants' pleas of not 7 guilty, the burden is on the prosecution to prove the guilt of 8 each defendant individually beyond a reasonable doubt. This 9 burden never shifts to the defendants for the simple reason 10 that the law never imposes upon a defendant in a criminal case 11 the burden or duty of calling any witness or producing any 12 evidence. 13 The law presumes the defendants to be innocent of all 14 the charges against them. I therefore instruct you that you 15 are to presume that each of the defendants is innocent 16 throughout your deliberations until such time, if ever, you, as 17 a jury, are satisfied that the government has proven the 18 defendant you are considering guilty beyond a reasonable doubt. 19 Each defendant begins the trial here with a clean 20 slate. This presumption of innocence alone is sufficient to 21 acquit a defendant unless you, as jurors, are unanimously 22 convinced beyond a reasonable doubt of that defendant's guilt, 23 after a careful and impartial consideration of all of the 24 evidence in this case. If the government fails to sustain its 25 burden, you must find the defendant you are considering not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12297 51CMSAT2 Jury Charge 1 guilty. 2 This presumption was with each of the defendants when 3 the trial began and remains with each of them even now as I 4 speak to you and will continue with each of the defendants into 5 your deliberations unless and until you are convinced that the 6 government has proven the guilt of the defendant you are 7 considering beyond a reasonable doubt: 8 I have said that the government must prove each of the 9 defendants guilty beyond a reasonable doubt. The question 10 naturally is, what is a reasonable doubt? The words almost 11 define themselves. It is a doubt based upon reason and common 12 sense. It is a doubt that a reasonable person has after 13 carefully weighing all of the evidence. It is a doubt which 14 would cause a reasonable person to hesitate to act in a matter 15 of importance in that person's personal life. Proof beyond a 16 reasonable doubt must, therefore, be proof of such a convincing 17 character that a reasonable person would not hesitate to rely 18 and act upon it in the most important of that person's own 19 affairs. A reasonable doubt is not a caprice or whim. It is 20 not a speculation or suspicion. It is not an excuse to avoid 21 the performance of an unpleasant duty, and it is not sympathy. 22 In a criminal case, the burden is, at all times, upon 23 the government to prove guilt beyond a reasonable doubt. The 24 law does not require that the government prove guilt beyond all 25 possible doubt; proof beyond a reasonable doubt is sufficient SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12298 51CMSAT2 Jury Charge 1 to convict. This burden never shifts to the defendants, which 2 means that it is always the government's burden to prove each 3 of the elements of the crimes charged beyond a reasonable doubt 4 for each of the defendants charged. 5 If, after fair and impartial consideration of all of 6 the evidence, you have a reasonable doubt concerning the guilt 7 of a defendant you are considering with respect to a particular 8 charge, it is your duty to acquit the defendant of that charge. 9 On the other hand, if, after fair and impartial consideration 10 of all the evidence you are satisfied of a defendant's guilt of 11 a particular charge beyond a reasonable doubt, you should vote 12 to convict. 13 With these instructions in mind, let us turn to the 14 charges against the defendants as contained in the indictment. 15 I remind you that the indictment is not evidence. It merely 16 describes the charges made against the defendants. It is an 17 accusation. An indictment is a formal method of bringing a 18 case into court for trial and determination by a jury. It may 19 not be considered by you as any evidence of the guilt of any of 20 the defendants. 21 In reaching your determination of whether the 22 government has proved each of the defendants guilty beyond a 23 reasonable doubt, you may consider only the evidence introduced 24 or the lack of evidence. 25 The defendants are not charged with committing any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12299 51CMSAT2 Jury Charge 1 crimes other than the offenses contained in the indictment, and 2 the defendants have each denied the charges contained in the 3 indictment. 4 You have also heard evidence that the defendants were 5 arrested. The fact that a person is arrested is not evidence 6 that a person is guilty of any crime, and you may not consider 7 it as evidence of guilt. 8 Before explaining in detail the law concerning the 9 offenses charged in this case, let me briefly summarize the 10 seven-count indictment for you. The indictment in this case 11 sets forth a total seven charges, each of which is called a 12 count. Each of the counts is asserted against one or more of 13 the three defendants, namely, Ahmed Abdel Sattar, Lynne 14 Stewart, and Mohammed Yousry. You must consider each count 15 separately and return a separate verdict with respect to each 16 defendant on each count in which that defendant is charged. 17 Count 1 charges that defendants Ahmed Abdel Sattar, 18 Lynne Stewart, and Mohammed Yousry conspired to defraud the 19 United States. Counts 2 and 3 charge only defendant Ahmed 20 Abdel Sattar. Count 2 charges that defendant Ahmed Abdel 21 Sattar conspired to kill and kidnap persons in a foreign 22 country. Count 3 charges that defendant Ahmed Abdel Sattar 23 solicited, commanded, induced, and otherwise endeavored to 24 persuade other persons to commit certain violent crimes. 25 Count 4 charges that defendant Lynne Stewart and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12300 51CMSAT2 Jury Charge 1 Mohammed Yousry conspired to provide and conceal material 2 support and resources for the conspiracy charged in Count 2, 3 namely, the conspiracy to kill and kidnap persons in a foreign 4 country. Count 5 charges that defendants Lynne Stewart and 5 Mohammed Yousry provided and concealed material support and 6 resources for the conspiracy charged in Count 2. 7 Counts 6 and 7 charge only defendant Lynne Stewart 8 with making false statements and submitting false writings and 9 documents to the Department of Justice and the Bureau of 10 Prisons. 11 This is only a summary of the charges in the 12 indictment. I will read portions of the indictment to you 13 shortly, and the indictment will be provided to you so that it 14 will be available to you during your deliberations. 15 There are three defendants on trial before you. You 16 must, as a matter of law, consider each count of the indictment 17 and each defendant's alleged involvement in that count 18 separately, and you must return a separate verdict on each 19 defendant for each count in which the defendant is charged. 20 In reaching your verdict, bear in mind that guilt is 21 personal and individual. Your verdict of guilty or not guilty 22 must be based solely upon the evidence or lack of evidence 23 about each defendant. The case against each defendant, on each 24 count, stands or falls upon the evidence or lack of evidence 25 against that defendant alone, and your verdict as to any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12301 51CMSAT2 Jury Charge 1 defendant on any count should not control your decision as to 2 any other defendant or any other count. No other 3 considerations are proper. 4 You may not draw any inference favorable or 5 unfavorable towards the government or the defendants on trial, 6 from the fact that certain persons were not named as defendants 7 in the indictment or that certain persons were named as 8 coconspirators, but not indicted. You also may not speculate 9 as to the reasons why other persons are not on trial. The 10 circumstances why any persons were not indicted must play no 11 part in your deliberations. Whether a person should be 12 indicted as a defendant is a matter within the sole discretion 13 of the United States Attorney and the grand jury. Therefore, 14 you may not consider it in any way in reaching your verdict as 15 to the defendants on trial. As to all of these matters 16 concerning persons not on trial before you, those matters are 17 wholly outside your concern and have no bearing on your 18 function. 19 I will now explain the law to be applied to the 20 offenses charged in the indictment. 21 While I'm resting my voice, why don't we all take this 22 opportunity for a stretch break. 23 In order to make these instructions easier to follow, 24 I will instruct you on the counts in an order different from 25 the order in which they appear in the indictment. As you will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12302 51CMSAT2 Jury Charge 1 see, the indictment includes several conspiracy charges, as 2 well as several substantive charges. In a moment, I will begin 3 by explaining some general differences between conspiracy 4 counts and substantive counts. I will then instruct you 5 concerning Count 1, which charges a conspiracy to defraud the 6 United States. Next, I will instruct you on Count 2, which 7 charges a conspiracy to murder and kidnap persons outside the 8 United States. 9 I will then instruct you on Count 5, which charges the 10 substantive offense of providing material support and resources 11 to the conspiracy to murder and kidnap persons outside the 12 United States that is charged in Count 2. That will help you 13 then to understand my instructions on Count 4, the final 14 conspiracy count, which charges a conspiracy to provide 15 material support and resources to the conspiracy charged in 16 Count 2. 17 After that, I will instruct you on the law concerning 18 Count 3, which charges solicitation to commit a violent crime. 19 Finally, I will instruct you on Counts 6 and 7, which charge 20 the making of false statements and the submission of false 21 writings and documents. 22 As I have told you, Counts 1, 2, and 4 of the 23 indictment are conspiracy counts. Counts 3, 5, 6, and 7 of the 24 indictment are referred to as substantive counts.let me explain 25 the difference. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12303 51CMSAT2 Jury Charge 1 A conspiracy is a kind of criminal partnership, an 2 agreement or mutual understanding of two or more persons to 3 join together to accomplish some unlawful purpose. The crime 4 of conspiracy to violate a federal law is an independent 5 offense. It is separate and distinct from the actual violation 6 of any specific federal laws, which the law refers to as 7 substantive crimes. 8 Indeed, you may find a defendant guilty of the crime 9 of conspiracy to commit an offense against the United States 10 even though the substantive crime which was the object of the 11 conspiracy was not actually committed. 12 Congress has deemed it appropriate to make conspiracy, 13 standing alone, a separate crime even if the conspiracy is not 14 successful. This is because collective criminal activity poses 15 a greater threat to the public's safety and welfare than 16 individual conduct, and increases the likelihood of success of 17 a particular criminal venture. 18 I will now instruct you on Count 1 of the indictment. 19 Count 1 of the indictment charges the defendants, Ahmed Abdel 20 Sattar, Lynne Stewart, and Mohammed Yousry, with conspiring to 21 defraud the United States by obstructing the lawful and 22 legitimate functions of the United States Department of Justice 23 and its agency, the Bureau of Prisons, in the administration 24 and enforcement of the Special Administrative Measures for a 25 particular inmate, Sheikh Omar Abdel Rahman. Count 1 of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12304 51CMSAT2 Jury Charge 1 indictment reads as follows: 2 Count 1, conspiracy to defraud the United States. 3 The grand jury further charges: 4 28. The allegations in paragraphs 1 through 27 of 5 this indictment are realleged and incorporated by reference as 6 though fully set forth herein. 7 29. From in or about June 1997 through in or about 8 April 2002, in the Southern District of New York and elsewhere, 9 Ahmed Abdel Sattar, also known as Abu Omar, also known as 10 Dr. Ahmed, Lynne Stewart, and Mohammed Yousry, the defendants, 11 Abdel Rahman, and Taha, together with others, known and 12 unknown, unlawfully, willfully, and knowingly combined, 13 conspired, confederated and agreed, together and with each 14 other to defraud the United States and an agency thereof, to 15 wit, to hamper, hinder, impede, and obstruct by trickery, 16 deceit, and dishonest means, the lawful and legitimate 17 functions of the United States Department of Justice and its 18 agency, the Bureau of Prisons, in the administration and 19 enforcement of the Special Administrative Measures for inmate 20 Abdel Rahman. 21 The indictment then lists, in paragraph 30, the overt 22 acts that the defendants and their coconspirators are alleged 23 to have committed in furtherance of the conspiracy. 24 In Count 1, the defendants are charged with violating 25 a statute known as section 371 of Title 18, United States Code. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12305 51CMSAT2 Jury Charge 1 That statute provides, in relevant part, that: "If two or more 2 persons conspire to defraud the United States, or any agency 3 thereof in any manner or for any purpose, and one or more of 4 such persons do any act to effect the object of the conspiracy, 5 each person is guilty of a crime." 6 As I just explained, the defendants in this case are 7 charged in Count 1 with having been members of a conspiracy to 8 defraud the United States Government. I also explained that a 9 conspiracy is a kind of criminal partnership, an agreement or 10 mutual understanding of two or more persons to join together to 11 accomplish some unlawful purpose. I will now explain the 12 phrase "conspiracy to defraud the United States." 13 A conspiracy to defraud the United States includes any 14 conspiracy for the purpose of impairing, obstructing, or 15 defeating the lawful function of any department of the United 16 States Government. In this regard, the charge of conspiracy to 17 defraud the government does not require a showing that the 18 conspirators sought to cause the government to suffer a loss of 19 money or property as a consequence of the conspiracy. Thus, 20 the law prohibits acts that interfere with or obstruct any of 21 the lawful governmental functions of the United States, by 22 fraud, deceit, or any dishonest means. 23 As I told you, the indictment charges that the 24 defendants and others conspired to defraud the United States 25 Department of Justice and its agency, the Bureau of Prisons, in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12306 51CMSAT2 Jury Charge 1 the administration and enforcement of the Special 2 Administrative Measures for a particular inmate, Sheikh Omar 3 Abdel Rahman. 4 I instruct you that the Department of Justice and the 5 Bureau of Prisons are both defendants or agencies of the United 6 States Government. As part of the Department of Justice, the 7 Bureau of Prisons is responsible for the confinement of 8 individuals convicted of federal crimes and the management and 9 regulation of all federal penal and correctional institutions. 10 At the direction of the Attorney General, who is the head of 11 the Department of Justice, the Bureau of Prisons is authorized 12 to impose upon an inmate restrictions that are reasonably 13 necessary to protect persons against the risk of death or 14 serious bodily injury. These restrictions, which are known as 15 Special Administrative Measures or SAMs, may include limiting 16 certain of the inmate's privileges, including, but not limited 17 to, correspondence, visiting, interviews with representatives 18 of the news media, and use of the telephone, as is reasonably 19 necessary to protect persons against the risk of acts of 20 violence or terrorism, and may also include requiring 21 affirmations from the inmate's attorneys that they will abide 22 by the Special Administrative Measures. Thus, in this case, 23 the term "conspiracy to defraud the United States" refers to 24 charges that the defendants agreed to employed deceitful or 25 dishonest means towards the Department of Justice and its SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12307 51CMSAT2 Jury Charge 1 agency, the Bureau of Prisons, in order to obstruct, interfere 2 with, impair, impede, or defeat the administration and 3 enforcement of Special Administrative Measures upon inmate 4 Sheikh Omar Abdel Rahman. 5 In order to satisfy its burden of proof with respect 6 to Count 1, the government must establish each of the following 7 four essential elements beyond a reasonable doubt as to each 8 defendant: 9 First, that two or more persons entered into the 10 unlawful agreement charged in the indictment starting in or 11 about June 1997; 12 Second, that the defendant you are considering 13 knowingly and willfully became a member of the conspiracy; 14 Third, that one of the members of the conspiracy 15 knowingly committed at least one of the overt acts charged in 16 the indictment or one which is substantially the same as one 17 explicitly charged, in the Southern District of New York; and 18 Fourth, that the overt act or acts which you find to 19 have been committed was or were committed to further some 20 objective of the conspiracy. 21 We will separately consider each of these four 22 elements in turn. 23 The first element which the government must prove 24 beyond a reasonable doubt to establish the offense of 25 conspiracy is that two or more persons entered into the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12308 51CMSAT2 Jury Charge 1 unlawful agreement charged in Count 1 of the indictment. In 2 Count 1, the indictment alleges the existence of a conspiracy 3 whose object was to defraud the United States Department of 4 Justice and its agency, the Bureau of Prisons, in the 5 administration and enforcement of the Special Administrative 6 Measures for a particular inmate, Sheikh Omar Abdel Rahman. I 7 have already explained to you the meaning of a conspiracy to 8 defraud the United States. 9 In order for the government to satisfy this element, 10 you need not find that the alleged members of the conspiracy 11 met together and entered into any express or formal agreement. 12 Similarly, you need not find that the alleged conspirators 13 stated, in words or writing, what the scheme was, its object or 14 purpose, or every precise detail of the scheme or the means by 15 which its object or purpose was to be accomplished. What the 16 government must prove is that there was an agreement or mutual 17 understanding, either spoken or unspoken, between two or more 18 people to cooperate with each other to accomplish an unlawful 19 act. 20 You may, of course, find that the existence of an 21 agreement to defraud the United States has been established by 22 direct proof. However, since conspiracy is, by its very 23 nature, characterized by secrecy, you may also infer its 24 existence from the circumstances of this case and the conduct 25 of the parties involved, if you find that the evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12309 51CMSAT2 Jury Charge 1 justifies such an inference. 2 In a very real sense, then, in the context of 3 conspiracy cases, actions often speak louder than words. In 4 this regard, you may, in determining whether an agreement 5 existed here, consider the actions and statements of all of 6 those you find to be participants as proof that a common design 7 existed on the part of the persons charged to act together to 8 accomplish an unlawful purpose. 9 The second element which the government must prove 10 beyond a reasonable doubt to establish the offense of 11 conspiracy is that the defendant you are considering knowingly, 12 willfully, and voluntarily became a member of the conspiracy. 13 A person acts knowingly if the person acts intentionally and 14 voluntarily, and not because of ignorance, mistake, accident, 15 or carelessness. Willfully means to act with knowledge that 16 one's conduct is unlawful and with the intent to do something 17 the law forbids, that is to say, with the bad purpose to 18 disobey or to disregard the law. A defendant need not have 19 known that the defendant was breaking any particular law, but 20 the defendant must have been aware of the generally unlawful 21 nature of the defendant's act. A defendant's conduct is not 22 willful if it was due to negligence, inadvertence, or mistake. 23 If you are satisfied that the conspiracy charged in 24 Count 1 of the indictment existed, you must ask yourselves who 25 the members of the conspiracy were. In deciding whether a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12310 51CMSAT2 Jury Charge 1 particular defendant was, in fact, a member of the conspiracy, 2 you should consider whether that defendant knowingly and 3 willfully joined the conspiracy. Did the defendant participate 4 in it with knowledge of its unlawful purpose and with the 5 specific intention of furthering its business or objective as 6 an associate or worker? 7 In that regard, it has been said that in order for a 8 defendant to be deemed a participant in a conspiracy, the 9 defendant must have had a stake in the venture or its outcome. 10 You are instructed that, while proof of a financial interest in 11 the outcome of a scheme is not essential, if you find that the 12 defendant you are considering had such an interest, that is a 13 factor which you may properly consider in determining whether 14 or not that defendant was a member of the conspiracy charged in 15 the indictment. 16 As I mentioned a moment ago, before any defendant can 17 be found to have been a conspirator, you must first find that 18 the defendant knowingly joined in the unlawful agreement or 19 plan. The key question, therefore, is whether the defendant 20 you are considering joined the conspiracy with an awareness of 21 at least some of the basic aims and purposes of the unlawful 22 agreement. 23 It is important to note that each defendant's 24 participation in the conspiracy must be established by 25 independent evidence of the defendant's own acts or statements, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12311 51CMSAT2 Jury Charge 1 as well as those of the other alleged coconspirators, and the 2 reasonable inferences which may be drawn from them. 3 Each defendant's knowledge is a matter of inference 4 from the facts proved. In that connection, I instruct you that 5 to become a member of the conspiracy, the defendant you are 6 considering need not have known the identities of each and 7 every other member, nor need that defendant have been apprised 8 all of their activities. Moreover, that defendant need not 9 have been fully informed as to all of the details, or the 10 scope, of the conspiracy in order to justify an inference of 11 knowledge on the defendant's part. Furthermore, the defendant 12 you are considering need not have joined in all of the 13 conspiracy's unlawful objectives. 14 The extent of a defendant's participation has no 15 bearing on the issue of a defendant's guilt. A conspirator's 16 liability is not measured by the extent or duration of the 17 conspirator's participation. Indeed, each member may perform 18 separate and distinct acts and may perform them at different 19 times. Some conspirators play major roles, while others play 20 minor parts in the scheme. An equal role is not what the law 21 requires. In fact, even a single act may be sufficient to draw 22 a defendant within the ambit of the conspiracy. 23 I want to caution you, however, that a defendant's 24 mere presence at the scene of the alleged crime does not, by 25 itself, make the defendant a member of the conspiracy. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12312 51CMSAT2 Jury Charge 1 Similarly, mere association with one or more members of the 2 conspiracy does not automatically make a defendant a member. A 3 person may know, or be friendly with, a criminal, without being 4 a criminal. Mere similarity of conduct or the fact that they 5 may have assembled together and discussed common aims and 6 interests does not necessarily establish proof of membership in 7 the conspiracy. 8 I also want to caution you to mere knowledge or 9 acquiescence, without participation, in the unlawful plan is 10 not sufficient. Moreover, the fact that the acts of a 11 defendant, without knowledge, merely happen to further the 12 purposes or objectives of the conspiracy, does not make a 13 defendant a member. More is required under the law. What is 14 necessary is that the defendant you are considering must have 15 participated with knowledge of at least some of the purposes or 16 objectives of the conspiracy and with the intention of aiding 17 in the accomplishment of those unlawful ends. 18 In sum, the defendant you are considering, with an 19 understanding of the unlawful character of the conspiracy, must 20 have intentionally engaged, advised, or assisted in the 21 conspiracy for the purpose of furthering the illegal 22 undertaking; that defendant thereby becomes a knowing and 23 willing participant in the unlawful agreement, that is to say, 24 a conspirator. 25 A conspiracy, once formed, is presumed to continue SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12313 51CMSAT2 Jury Charge 1 until either its objective is accomplished or there is some 2 affirmative act of termination by its members. So, too, once a 3 person is found to be a member of a conspiracy, that person is 4 presumed to continue being a member in the venture until the 5 venture is terminated, unless it is shown by some affirmative 6 proof that that person withdrew and disassociated himself or 7 herself from it. 8 In your consideration of whether each defendant acted 9 knowingly with respect to Count 1 of the indictment, you may 10 consider whether the defendant you are considering deliberately 11 closed the defendant's eyes to what otherwise would have been 12 obvious to the defendant. If you find beyond a reasonable 13 doubt that the defendant you are considering acted with a 14 conscious purpose to avoid learning the truth, then the 15 requirement that he or she acted knowingly may be satisfied. 16 However, guilty knowledge may not be established by 17 demonstrating that the defendant was merely negligent, foolish, 18 or mistaken. 19 One may not willfully and intentionally remain 20 ignorant of a fact material and important to his or her conduct 21 to escape the consequences of the criminal law. If you find 22 beyond a reasonable doubt that the defendant intentionally 23 participated in a conspiracy, but that the defendant 24 deliberately and consciously avoided confirming certain facts 25 about the specific objective of the conspiracy, then such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12314 51CMSAT2 Jury Charge 1 conscious avoidance may support a finding that the government 2 has proven that the defendant knew of the conspiracy's 3 objective. 4 Keep in mind that you cannot rely on conscious 5 avoidance to support a finding that the defendant intended to 6 join the conspiracy. Conscious avoidance may apply only to the 7 defendant's knowledge of the specific objective of the 8 conspiracy, not to whether the defendant joined the conspiracy 9 in the first place. It is logically impossible for a defendant 10 to intend and agree to join a conspiracy if the defendant does 11 not actually know that it exists. 12 With respect to the conspiracy charged in Count 1 of 13 the indictment, if you find that the defendant you are 14 considering was aware of a high probability that the object of 15 the conspiracy was to defraud the United States, and that the 16 defendant acted with deliberate disregard of the facts, you may 17 find that the defendant acted knowingly. However, if you find 18 that the defendant you are considering actually believed that 19 the object of the conspiracy was not to defraud the United 20 States, the defendant may not be convicted of Count 1. 21 It is entirely up to you whether you find that the 22 defendant deliberately closed the defendant's eyes and any 23 inferences to be drawn from the evidence on this issue. 24 The third element which the government must prove 25 beyond a reasonable doubt to establish the offense of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12315 51CMSAT2 Jury Charge 1 conspiracy is that at least one of the overt acts charged in 2 the indictment, or one which is substantially the same as one 3 explicitly charged, was knowingly committed by at least one of 4 the conspirators, at or about the time and place alleged, in 5 the Southern District of New York. I instruct you that the 6 Southern District of New York includes Manhattan, the Bronx, 7 Westchester, Putnam, Orange, Sullivan, Rockland, and Dutchess 8 Counties. 9 Paragraphs 30(a) through 30(ii) of Count 1 of the 10 indictment charge overt acts that are alleged to have been 11 committed in the Southern District of New York and elsewhere. 12 As I mentioned, you will have a copy of the indictment with you 13 during deliberations. 14 In order for the government to satisfy this element, 15 it is not required that all of the overt acts alleged in the 16 indictment be proven. 17 Similarly, you need not find that any of the 18 defendants in this case committed the overt act. It is 19 sufficient for the government to prove that one of the 20 conspirators knowingly committed an overt act in furtherance of 21 the conspiracy, since such an act becomes, in the eyes of the 22 law, the act of all of the members of the conspiracy. 23 You are further instructed that the overt act need not 24 have been committed at precisely the time alleged in the 25 indictment. It is sufficient if you are convinced beyond a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12316 51CMSAT2 Jury Charge 1 reasonable doubt that it occurred at or about the time and 2 place stated, as long as it occurred while the conspiracy was 3 still in existence. 4 Finally, you must find that the overt act was 5 committed in the Southern District of New York, which I have 6 already defined for you. 7 The fourth, and final, element which the government 8 must prove beyond a reasonable doubt is that the overt act was 9 committed for the purpose of carrying out the unlawful 10 agreement. 11 In order for the government to satisfy this element, 12 it must prove beyond a reasonable doubt that at least one overt 13 act was knowingly and willfully done, by at least one 14 conspirator, in furtherance of the object of the conspiracy, as 15 charged in the indictment. In this regard, you should bear in 16 mind that the overt act, standing alone, may be an innocent, 17 lawful act. Frequently, however, an apparently innocent act 18 sheds its harmless character if it is a step in carrying out, 19 promoting, aiding, or assisting the conspiratorial scheme. You 20 are therefore instructed that the overt act does not have to be 21 an act which in and of itself is criminal or constitutes an 22 objective of the conspiracy. 23 Good faith is an absolute defense to the charge of 24 conspiracy to defraud charged in Count 1 of the indictment. If 25 the defendant you are considering believed in good faith that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12317 51CMSAT2 Jury Charge 1 the defendant was acting properly, even if the defendant was 2 mistaken in that belief, there would be no crime, and you must 3 find the defendant you are considering not guilty of the crime 4 charged in Count 1. 5 One who expresses an honestly-held opinion, or an 6 honestly-formed belief, is not chargeable with fraudulent 7 intent even though the opinion is erroneous or the belief is 8 mistaken; and, similarly, evidence which establishes only that 9 a person made a mistake in judgment, or was careless, does not 10 establish fraudulent intent. However, disagreement with the 11 law does not constitute a good-faith misunderstanding of what 12 the law requires. 13 The burden of establishing lack of good faith and 14 criminal intent rests upon the government. A defendant is 15 under no burden to prove the defendant's good faith; rather, 16 the prosecution must prove bad faith or knowledge of falsity 17 beyond a reasonable doubt. 18 Evidence has been admitted that discussed the 19 constitutionality or validity of the federal regulation that 20 authorized the Special Administrative Measures ("SAMs") imposed 21 on Sheikh Omar Abdel Rahman, as well as the SAMs themselves and 22 the requirement of attorney affirmations. The 23 constitutionality or validity of those provisions is not a 24 matter for you to decide. That is a matter of law for the 25 courts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12318 51CMSAT2 Jury Charge 1 I have already determined, as a legal matter, that any 2 question about the constitutionality or validity of the 3 regulation that authorized the SAMs, the SAMs themselves, and 4 the requirement of attorney affirmations is not a defense to 5 the charges in this case, and therefore you may not consider 6 any such defense. However, you may consider any defendant's 7 perception of any constitutional issues in assessing that 8 defendant's interpretation of what the SAMs required to 9 determine whether that defendant acted in good faith. I have 10 already explained good faith, and you are to apply that 11 instruction here. 12 During the course of the trial, you have heard various 13 statements about alleged conduct by the Egyptian government. 14 You have also heard various statements about the alleged 15 conditions under which Sheikh Omar Abdel Rahman was confined. 16 That alleged conduct and those alleged conditions and knowledge 17 about them are not a defense to any of the charges in this 18 case. I remind you that the defendants do not have to prove 19 anything, and that they have no obligation to call any 20 witnesses or to present any evidence. The issue for you to 21 decide is whether the government has proved the elements of the 22 offenses charged beyond a reasonable doubt in accordance with 23 all of my instructions on the law. 24 You have heard testimony about certain rules governing 25 the practice of law by members of the bar of the State of New SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12319 51CMSAT2 Jury Charge 1 York. The practice of law by all lawyers licensed by the State 2 of New York is governed by the Code of Professional 3 Responsibility. The Code of Professional Responsibility 4 consists of three separate but interrelated parts: Canons, 5 ethical considerations, and disciplinary rules. The canons are 6 statements of axiomatic norms. The ethical considerations are 7 aspirational in character and represent the objectives toward 8 which every member of the profession should strive. Only the 9 disciplinary rules are mandatory in character. They state the 10 minimum level of conduct below which no lawyer can fall without 11 being subject to disciplinary action. Pursuant to the 12 disciplinary rules, a lawyer shall not intentionally fail to 13 seek the lawful objectives of the client through reasonably 14 available means permitted by law and the disciplinary rules. 15 Also, under the disciplinary rules, a lawyer shall not 16 knowingly counsel or assist the client in conduct that the 17 lawyer knows to be illegal or fraudulent and shall not 18 knowingly engage in other illegal conduct or conduct contrary 19 to a disciplinary rule. 20 You have heard evidence about various statements made 21 and opinions held by defendant Lynne Stewart. 22 Expression of opinion alone, opinion in the sense of a 23 point of view, even an opinion advocating violence, is not a 24 crime in this country. The United States Constitution 25 guarantees that people may advocate the use of force, or even SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12320 51CMSAT2 Jury Charge 1 the moral necessity for a resort to force and violence, without 2 fear of punishment by the government so long as that advocacy 3 is not directed to inciting or producing imminent lawless 4 action and is not likely to incite or produce such action. But 5 evidence of defendant Lynne Stewart's statements on political, 6 public or religious issues may be considered by you if you find 7 them relevant for either of the following two purposes: 8 First, you may consider whether such statements are 9 evidence of why she was taking certain actions at the time she 10 spoke, what her purpose was. 11 Second, you may consider whether her opinions 12 expressed at one time are evidence that at some other time she 13 took actions in accordance with those opinions, if you find 14 that other evidence supports a finding that she took such 15 action. 16 What there means is that statements that you may find 17 were proved in this case will fall into three categories. The 18 first category is simple statements of a point of view on a 19 political, social, or religious issue without either of the two 20 related circumstances that I just described. Those statements 21 may never be treated as evidence of a crime. Indeed, it is 22 improper for you to consider any personal feelings you may have 23 about such statements or about such personal political beliefs. 24 The second category is statements expressing a point of view 25 that you find relevant for either of the two purposes I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12321 51CMSAT2 Jury Charge 1 mentioned above. The third category is statements that do not 2 express a point of view at all, but which you may find were 3 made to further some purpose of a conspiracy charged in the 4 indictment. Those statements, if you find they were made, may 5 be treated, in and of themselves, as evidence relating to that 6 conspiracy and given whatever weight you think they deserve. 7 Although this instruction appears as a part of the 8 instructions as to Count 1, you should use it to help you 9 evaluate the evidence as to any count for which you find it 10 relevant. You should also apply it to any statements and 11 opinions of any other defendants for which it is relevant. 12 I will now instruct you on Count 2 of the indictment. 13 However, we have been going for about two hours and so before I 14 instruct you on Count 2, we will take a morning break. 15 Now, please -- and I appreciate that you know that I 16 am going to say this, but I say it because I cannot 17 overemphasize the importance of my instruction to you. I am in 18 the middle of instructing you on the law that you will apply to 19 the facts in this case. And it is so important for all of the 20 reasons that I have repeatedly explained to you in the course 21 of the trial that you are not to talk about the case. You are 22 not to begin deliberations. You are not to discuss anything 23 about the case. You are not to discuss the instructions that I 24 have been giving you. You are simply not to talk about the 25 case at all. It is so important for you to await that time SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12322 51CMSAT2 Jury Charge 1 when I have finished my instructions and sent you to 2 deliberate. 3 I cannot overemphasize the importance of that. Please 4 don't talk about this case at all, don't talk about anything to 5 do with it. Don't talk about the evidence or lack of evidence. 6 Don't talk about these instructions. 7 We are taking a break because I appreciate that after 8 two hours a break is necessary. Please don't talk about the 9 case and continue to keep the open mind until I have finished 10 my instructions on the law and you've gone to the jury room to 11 begin your deliberations. 12 Have a good break and I will see you soon. 13 (Jury not present) 14 MS. BAKER: Your Honor, may I raise a very brief 15 issue? 16 THE COURT: Sure. 17 MR. BARKOW: May I step out, your Honor? 18 THE COURT: Yes, please. 19 MS. BAKER: On page 137 of the instructions, your 20 Honor is instructing that "the foreperson should sign any notes 21 that you send to me." 22 I wondered if perhaps, in accordance with the way it 23 is being done at the end of the special verdict form, that the 24 Court might want to be a little more specific at that point in 25 the instructions and indicate that the signing should be by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12323 51CMSAT2 Jury Charge 1 juror number and not by name. 2 MR. TIGAR: We oppose that, your Honor. 3 THE COURT: I'm sorry? 4 MR. TIGAR: The verdict form is clear. It says sign 5 only with your number. 6 THE COURT: This is about notes that they send in. 7 MR. TIGAR: I'm sorry, your Honor. 8 THE COURT: It is a fair request. It's at the top of 9 page 137. It is otherwise not clear. It says the foreperson 10 should sign any notes that you send. I don't want the 11 foreperson's name. 12 MR. TIGAR: There are gaps between my mind and where I 13 am. 14 THE COURT: That's all right. It is all right. I 15 will just add a sentence which says -- 16 MR. TIGAR: Your Honor, my concern was not to draw 17 attention to the anonymous character of the jury. Might the 18 Court say, as has been our practice up to now, sign your note 19 with your juror number? 20 THE COURT: Sure. At the top of page 137, where it 21 says, the foreperson should sign any notes that you send to me, 22 I would say, as has been our practice, the foreperson should 23 sign any notes by using the foreperson's juror number. 24 I'll see you shortly. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12324 51C5SAT3 Jury Charge 1 MR. MORVILLO: Your Honor, it appears from reporting 2 on the internet that the Supreme Court has decided the 3 Booker-Fanfan case this morning. I have absolutely no idea 4 what it says. We will endeavor to get copies of the opinion as 5 soon as possible. 6 THE COURT: All right. Bring in the jury. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12325 51C5SAT3 Jury Charge 1 (Jury present) 2 THE COURT: Be seated, all. 3 Ladies and gentlemen, I will now instruct you on Count 4 Two of the indictment. Count Two charges the defendant, Ahmed 5 Abdel Sattar, with conspiring, while within the United States, 6 to murder and kidnap persons outside the United States. Count 7 Two of the indictment reads, as follows: 8 "Count Two. Conspiracy to kill and kidnap persons in 9 a foreign country. 10 The grand jury further charges: 11 31. The allegations in paragraphs 1 through 27 and 12 30(a) through 30(ii) of this indictment are realleged and 13 incorporated by reference as though fully set forth herein. 14 32. From in or about September 1999 through in or 15 about April 2002, within the jurisdiction of the United States, 16 in the Southern District of New York and elsewhere, Ahmed Abdel 17 Sattar, also known as "Abu Omar," also known as "Dr. Ahmed," 18 the defendant, Abdel Rahman, and Taha, together with others 19 known and unknown, unlawfully, willfully, and knowingly 20 combined, conspired, confederated and agreed, together and with 21 each other, to murder and kidnap persons in a foreign country. 22 33. In furtherance of the conspiracy, and to effect 23 the illegal object thereof the following overt acts, among 24 others, were committed in the Southern District of New York and 25 elsewhere: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12326 51C5SAT3 Jury Charge 1 A. The allegations in paragraphs 19, 21, 23, 30(e) 2 through 30(h), 30(p), 30(t) through 30(y), 30(bb), 30(cc) and 3 30(ff) through 30(ii) of this indictment are realleged and 4 incorporated by reference as though fully set forth herein. 5 Communications between Islamic Group terrorists 6 relating to a possible Islamic Group terrorist action in Egypt. 7 B. In or about September and October 2000, Sattar 8 participated in several telephone calls in an effort to 9 facilitate a meeting in Egypt between Taha and Alaa Abdul Raziq 10 Atia, Atia, an Islamic Group member, who was wanted in 11 connection with the 1997 Luxor terrorist attack in Egypt and 12 who was a fugitive. 13 C. On or about September 4, 2000, in a telephone call 14 that Sattar arranged and listened to, Taha told Atia's 15 associate, CC-2, who is a co-conspirator not named as a 16 defendant herein, that the Islamic Group's use of military 17 action was "subject to capability, nothing else." When CC-2 18 hung up, Sattar said, "I'm happy this call was made." Taha 19 asked Sattar, "What do you think of what was said?" Sattar 20 replied, "Good, thank God, good, good." 21 D. On or about September 18, 2000, Sattar arranged 22 and listened to a telephone call between Taha and CC-2 during 23 which, in connection with a discussion of jihad and prior 24 military actions, CC-2 stated that Atia wanted to meet secretly 25 with Taha "for the best interest of the work." When CC-2 hung SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12327 51C5SAT3 Jury Charge 1 up, Taha asked Sattar, "What do you think about what you have 2 heard?" Sattar replied, "I hope it will be for the best." 3 E. On or about October 5, 2000, Sattar arranged and 4 stayed on the phone during a telephone call between Taha and 5 CC-2 to discuss Taha's upcoming meeting with Atia, during which 6 CC-2 acknowledged his understanding that there would be 7 "action," but requested that it be delayed until Taha met with 8 Atia. 9 f. On or about October 9, 2000, during a telephone 10 conversation, Taha told Sattar that Sattar should inform CC-2 11 that Abdel Rahman had issued a fatwah and to tell CC-2 to 12 instruct his associates that they "are supposed to go by it." 13 Sattar replied, "yes." 14 G. On or about October 11, 2000, during a telephone 15 conversation, Sattar told Taha that he had spoken with Atia and 16 believed that Atia was eager, ready and able "to do things," 17 and that he had to warn Atia repeatedly during their telephone 18 call that his telephone was "not safe." 19 H. On or about November 2, 2000, during a telephone 20 conversation, Taha told Sattar that he was afraid that Atia had 21 been killed during a raid by Egyptian law enforcement on 22 October 19, 2000, and noted that he had asked Atia about his 23 "capacity" and discussed with Atia whether they would have a 24 chance to "do something." 25 Title 18, United States Code, Section 956(a)(1) and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12328 51C5SAT3 Jury Charge 1 (a)(2)(A)." 2 The statute that defendant Ahmed Abdel Stewart is 3 charged with violating in Count Two is Section 956(a)(1) of 4 Title 18, United States Code. That statute provides, in 5 relevant part that, 6 "Whoever, within the jurisdiction of the United 7 States, conspires with one or more other persons, regardless of 8 where such other person or persons are located, to commit at 9 any place outside the United States an act that would 10 constitute the offense of murder, kidnapping, or maiming, if 11 committed in the special maritime and territorial jurisdiction 12 of the United States shall, if any of the conspirators commits 13 an act within the jurisdiction of the United States to effect 14 any object of the conspiracy, be" 15 guilty of a crime. 16 To satisfy its burden of proof as to Count Two, the 17 government must establish each of the following five elements 18 beyond a reasonable doubt: First, the existence of the 19 conspiracy charged in Count Two of the indictment, that is, an 20 agreement or mutual understanding between two or more persons, 21 the object of which was to murder or kidnap persons outside the 22 United States; 23 Second, that defendant Ahmed Abdel Sattar knowingly 24 and willfully became a member of that conspiracy with the 25 intent to further its purpose; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12329 51C5SAT3 Jury Charge 1 Third, that defendant Ahmed Abdel Sattar engaged in 2 this conspiracy while he was physically within the jurisdiction 3 of the United States; 4 Fourth, that one or more of the conspirators, but not 5 necessarily defendant Ahmed Abdel Sattar, knowingly committed 6 at least one overt act within the jurisdiction of the United 7 States; and 8 Fifth, that the overt act which you find to have been 9 committed, was committed to further the objective of the 10 conspiracy. 11 The first element of Count Two that the government 12 must prove beyond a reasonable doubt is the existence of the 13 unlawful agreement charged in Count Two of the indictment. I 14 have already generally instructed you as to what constitutes a 15 conspiracy, and you should apply that instruction here as to 16 the existence of a conspiracy. However, you must keep in mind 17 that each of the conspiracy counts in the indictment charges a 18 different conspiracy with a different object, and you must make 19 an independent determination as to each one as to whether the 20 government has proved beyond a reasonable doubt that the 21 particular conspiracy existed. 22 The conspiracy charged in Count Two allegedly had two 23 unlawful objects: The murder of persons outside the United 24 States and the kidnapping of persons outside the United States. 25 You need not find that the conspirators agreed to accomplish SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12330 51C5SAT3 Jury Charge 1 both of the alleged objectives of the conspiracy. An agreement 2 to accomplish one of these objectives is sufficient. If the 3 government fails to prove that at least one of these objectives 4 was an objective of the conspiracy, then you must find 5 defendant Ahmed Sattar not guilty on this charge. 6 However, if you find that the conspirators agreed to 7 accomplish one of the objectives charged by the indictment, the 8 illegal purpose element will be satisfied. The government must 9 prove that the conduct that the conspirators agreed upon 10 included all the elements of the substantive crime. And in 11 order to satisfy this element, all of you must agree 12 unanimously on the specific objective of the conspiracy. In 13 other words, you must all be in agreement with respect to at 14 least one of the two alleged objects of the conspiracy and that 15 defendant Ahmed Sattar agreed to accomplish that objective. 16 "Murder" is the unlawful killing of a human being with 17 malice aforethought. Malice is the state of mind that would 18 cause a person to act without regard to the life of another. 19 To kill with malice aforethought means to act consciously, with 20 the intent to kill another person. Malice aforethought does 21 not require a subjective intent to kill. It would be 22 sufficient to prove malice aforethought to prove reckless and 23 wanton conduct on the part of the person inflicting an injury 24 or injuries which grossly deviated from a reasonable standard 25 of care such that the person was aware of the serious risk of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12331 51C5SAT3 Jury Charge 1 death. Malice aforethought requires that the person inflicting 2 the injury or injuries act willfully, with a bad or evil 3 purpose to break the law, but it does not require that the 4 person act out of spite, malevolence, hatred or ill will. 5 Kidnapping is the unlawful or intentional seizing or 6 confining of someone against their will and for the purpose of 7 ransom, reward or other benefit. It is not necessary for the 8 government to prove the identity of any specifically 9 contemplated victim of the conspiracy to kill or kidnap, or the 10 specific location outside the United States where the 11 contemplated killing or kidnapping is to occur. 12 The second element of Count Two that the government 13 must prove beyond a reasonable doubt is that the defendant, 14 Ahmed Abdel Sattar, knowingly and willfully, became a member of 15 the conspiracy with the intent to further its purpose. 16 While discussing Count One, I explained to you how you 17 are to determine whether a person was a member of a charged 18 conspiracy, and you should rely on those instructions here and 19 in connection with the remaining conspiracy charge. I have 20 also defined the terms "knowingly" and "willfully" and reviewed 21 the concept of "conscious avoidance" as it relates to a 22 defendant's knowledge. You should apply those instructions as 23 you consider Count Two as well. 24 The third element of Count Two that the government 25 must prove beyond a reasonable doubt is that defendant Ahmed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12332 51C5SAT3 Jury Charge 1 Abdel Sattar, having joined the conspiracy, participated in it 2 while within the jurisdiction of the United States. 3 It is not necessary that the conspiracy was formed in 4 the United States. The only requirement is that the conspiracy 5 existed, and that Ahmed Abdel Sattar was part of it during some 6 period of time while he was within the United States. The 7 location of those with whom Abdel -- the location of those with 8 whom Ahmed Abdel Sattar conspired is irrelevant. 9 The fourth element of Count Two that the government 10 must prove beyond a reasonable doubt is that one or more of the 11 conspirators, but not necessarily Ahmed Abdel Sattar, knowingly 12 committed at least one overt act within the jurisdiction of the 13 United States. 14 Count Two alleges certain overt acts, which are found 15 in paragraphs 19, 21, 23, 30(e) through 30(h), 30(p), 30(t) 16 through 30(y), 30(bb), 30(cc), 30(ff) through 30(ii), and at 17 pages 26 to 28 of the indictment. 18 The government must prove that at least one of those 19 overt acts, or one that is substantially the same as one 20 explicitly charged, was committed within the United States by 21 Ahmed Abdel Sattar or one of his co-conspirators during the 22 life of the conspiracy. In order for the government to satisfy 23 this element it is not required that all of the overt acts 24 alleged in this indictment be proven. 25 The other instructions that I gave you, in connection SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12333 51C5SAT3 Jury Charge 1 with Count One, about the commission of an overt act, are 2 equally applicable here. 3 The fifth element of Count Two that the government 4 must prove beyond a reasonable doubt is that the overt act you 5 find was committed for the purpose of carrying out -- let me 6 start that again. 7 The fifth element of Count Two that the government 8 must prove beyond a reasonable doubt is that the overt act you 9 find was committed for the purpose of carrying out the unlawful 10 agreement. 11 I previously explained to you, in connection with 12 Count One, the requirement that some overt act must have been 13 done by a conspirator in furtherance of the conspiracy. You 14 should rely on my previous instructions in evaluating this 15 element of Count Two. 16 I will now instruct you on Count Five of the 17 indictment, which is one of the substantive counts. 18 Count Five of the indictment charges that defendants 19 Lynne Stewart and Mohammed Yousry provided, or concealed the 20 nature, location, and source of material support or resources 21 to the conspiracy to murder or kidnap persons outside the 22 United States that is charged in Count Two of the indictment. 23 Count Five reads as follows: 24 "Count Five. Providing and concealing material 25 support to terrorist activity. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12334 51C5SAT3 Jury Charge 1 The grand jury further charges: 2 40. The allegations in paragraphs 1 through 27, 30(a) 3 through 30(ii), and 33(b) through 33(h) of this indictment are 4 realleged and incorporated by reference as though fully set 5 forth herein. 6 41. From in or about September 1999 through in or 7 about April 2002, in the Southern District of New York and 8 elsewhere, Lynne Stewart and Mohammed Yousry, the defendants, 9 together with others known and unknown, within the United 10 States, provided material support and resources, to wit, 11 provided personnel by making Abdel Rahman available as a 12 co-conspirator, and concealed and disguised the nature, 13 location, and source of material support and resources, to wit, 14 concealed and disguised the nature, location and source of 15 personnel by concealing and disguising that Abdel Rahman was a 16 co-conspirator, knowing and intending that such material 17 support and resources were to be used in preparation for, and 18 in carrying out, a violation of Section 956 of Title 18, United 19 States Code, to wit, the conspiracy charged in Count Two of 20 this indictment, and in preparation there -- and in preparation 21 for, and in carrying out, the concealment of such violation. 22 Title 18, United States Code, Sections 2339(a) and 23 (2)." 24 The statute on which this charge is based, Title 18, 25 United States Code, Section 2339(a) provides, in relevant part, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12335 51C5SAT3 Jury Charge 1 that: 2 "Whoever, within the United States, provides material 3 support or resources or conceals or disguises the nature, 4 location or source... of material support or resources, knowing 5 or intending that they are to be used in preparation for, or in 6 carrying out, a violation of Section... 956... of this 7 title..." 8 is guilty of a crime. 9 The "material support" that triggers Section 2339(a) 10 must be given in furtherance of one of the enumerated criminal 11 offenses set forth in the statute. In Count Five of the 12 indictment, the predicate criminal offense is a violation of 13 Title 18, United States Code, Section 956(a)(1), namely, the 14 same conspiracy to murder or kidnap persons outside the United 15 States that is charged in Count Two of the indictment. 16 In order to meet its burden on Count Five of the 17 indictment the government must establish, beyond a reasonable 18 doubt, the following three elements: 19 First, that the conspiracy to murder or kidnap persons 20 outside the United States that is charged in Count Two existed; 21 Second, that, within the United States, the defendant 22 you are considering provided material support or resources, or 23 concealed or disguised the nature, location, or source of 24 material support or resources; and 25 Third, that the defendant you are considering provided SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12336 51C5SAT3 Jury Charge 1 material support or resources, or concealed or disguised the 2 nature, location, or source of the material support or 3 resources, knowing or intending that the support or resources 4 were to be used in preparation for, or in carrying out, the 5 conspiracy to murder or kidnap persons outside the United 6 States. 7 As to the first element of Count Five, the government 8 must prove beyond a reasonable doubt that a conspiracy to 9 murder or kidnap persons outside the United States existed. In 10 other words, the underlying act in this case that is alleged to 11 be the object of material support is Section 550 -- Section 12 956(a)(1), which makes it a crime to conspire to murder or 13 kidnap persons outside the United States. I have previously 14 read the statute to you and explained the elements of Section 15 956(a)(1) in connection with Count Two, so I will not repeat 16 that explanation here. The government must prove, beyond a 17 reasonable doubt, that the conspiracy to murder or kidnap 18 charged in Count Two existed. 19 The second element of Count Five that the government 20 must prove beyond a reasonable doubt is that the defendant you 21 are considering, within the United States, provided material 22 support or resources, or concealed or disguised the nature, 23 location, or source of material support or resources. 24 The term "material support or resources" is defined to 25 include personnel. Here, the term "personnel" refers to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12337 51C5SAT3 Jury Charge 1 individuals jointly engaged in a common undertaking, namely, 2 persons preparing for, or carrying out, the conspiracy to 3 murder or kidnap persons outside the United States that is 4 charged in Count Two. 5 A defendant "provides" material support or resources 6 if he or she makes available, or physically transfers or sends, 7 the support or resources. The terms "conceal," "disguise," 8 "nature," "location," and "source" have their ordinary and 9 obvious meanings. 10 Here, the government has the burden of proving beyond 11 a reasonable doubt that the defendant you are considering 12 provided material support or resources by making Abdel Rahman 13 available as a co-conspirator -- that is, as personnel -- to 14 the conspiracy charged in Count Two, or that the defendant you 15 are considering concealed the nature, location, or source of 16 Abdel Rahman as personnel for that conspiracy. 17 The third element of Count Five which the government 18 must prove beyond a reasonable doubt is that the defendant you 19 are considering provided the material support or resources, or 20 concealed or disguised the nature, location, or source of such 21 support or resources, knowing or intending that it was to be 22 used in preparation for, or in carrying out, the conspiracy to 23 murder or kidnap persons outside the United States that is 24 charged in Count Two. 25 Therefore, in this case, the defendant you are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12338 51C5SAT3 Jury Charge 1 considering must have provided Sheikh Omar Abdel Rahman as 2 personnel, or concealed or disguised him as personnel, knowing 3 or intending that this support or resources would be used in 4 preparation for, or in carrying out the conspiracy to murder or 5 kidnap persons outside the United States that is charged in 6 Count Two. 7 As I previously instructed you in connection with 8 Count Two, it is not necessary for the government to prove the 9 identity of any specifically contemplated victims of the 10 conspiracy to murder or kidnap. Therefore, the defendant you 11 are considering need not know the identity of any particular 12 persons targeted; nor must the defendant know all the details 13 of the plan, or the identity of all of the participants in the 14 conspiracy to murder or kidnap. 15 Also, the government is not required to prove that the 16 defendant you are considering knew the defendant was breaking 17 the law. The government must prove -- must prove beyond a 18 reasonable doubt that the defendant you are considering acted 19 with the knowledge or intent that the support or resources were 20 going to be used in preparation for, or in carrying out, the 21 conspiracy to murder or kidnap persons outside the United 22 States. 23 With respect to Count Five, the indictment also 24 charges defendants Lynne Stewart and Mohammed Yousry with 25 aiding and abetting. The aiding and abetting statute, Section SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12339 51C5SAT3 Jury Charge 1 2(a) of Title 18 of the United States Code provides that: 2 "Whoever commits an offense against the United States 3 or aids, abets, counsels, commands, induces or procures its 4 commission, is punishable as a principal." 5 Under the aiding and abetting statute, it is not 6 necessary for the government to show that the defendant you are 7 considering himself or herself physically committed the crime 8 with which the defendant is charged in order for you to find 9 the defendant you are considering guilty. 10 A person who aids or abets another to commit an 11 offense is just as guilty of that offense as if the person 12 committed it himself or herself. Accordingly, you may find the 13 defendant you are considering guilty of the substantive crime 14 if you find beyond a reasonable doubt that the government has 15 proved that another person actually committed the crime with 16 which the defendant is charged, and that the defendant you are 17 considering aided or abetted that person in the commission of 18 the offense. 19 As you can see, the first element is that you find 20 that another person has committed the crime charged. 21 Obviously, no one can be convicted of aiding or abetting the 22 criminal acts of another if no crime was committed by the other 23 person in the first place. But, if you do find that a crime 24 was committed, then you must consider whether the defendant you 25 are considering aided or abetted the commission of the crime. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12340 51C5SAT3 Jury Charge 1 In order to aid or abet another to commit a crime, it 2 is necessary that the defendant you are considering willfully 3 and knowingly associate himself or herself in some way with the 4 crime, and that the defendant willfully and knowingly seek, by 5 some act, to help make the crime succeed. 6 Participation in a crime is willful if action is taken 7 voluntarily and intentionally; that is to say, with a bad 8 purpose either to disobey or to disregard the law. 9 The mere presence of a defendant where a crime is 10 being committed, even coupled with knowledge by the defendant 11 that a crime is being committed, or the mere acquiescence by a 12 defendant in the criminal conduct of others, even with guilty 13 knowledge, is not sufficient to establish aiding and abetting. 14 An aider and abettor must have some interest in the criminal 15 venture. 16 To determine whether a defendant aided or abetted the 17 commission of the crime with which the defendant is charged, 18 ask yourself these questions: 19 Did the defendant participate in the crime charged as 20 something the defendant wished to bring about? 21 Did the defendant associate himself or herself with 22 the crime venture knowingly and willfully? 23 Did the defendant seek, by his or her actions, to make 24 the criminal venture succeed? 25 If the defendant you are considering did, then that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12341 51C5SAT3 Jury Charge 1 defendant is an aider and abettor, and therefore guilty of the 2 offense. 3 If, on the other hand, your answers to this series of 4 questions are "no," then the defendant you are considering is 5 not an aider and abettor, and you must find that defendant not 6 guilty. 7 I will now instruct you on Count Four, which is the 8 final conspiracy count in the indictment. 9 Count Four of the indictment charges defendants Lynne 10 Stewart and Mohammed Yousry with conspiring to provide or 11 conceal the nature, location, and source of material support or 12 resources to the conspiracy to murder or kidnap persons outside 13 the United States that is charged in Count Two of the 14 indictment. 15 Count Four charges: Count Four. Conspiracy to 16 provide and conceal material support to terrorist activity. 17 "The grand jury further charges: 18 36. The allegations in paragraphs 1 through 27, 30(a) 19 through 30(ii), and 33(b) through 33(h) of this indictment are 20 realleged and incorporated by reference as though fully set 21 forth herein. 22 37. From in or about September 1999, through in or 23 about April 2002, in the Southern District of New York and 24 elsewhere, Lynne Stewart and Mohammed Yousry, the defendants, 25 together with others known and unknown, unlawfully, willfully SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12342 51C5SAT3 Jury Charge 1 and knowingly combined, conspired, confederated, and agreed, 2 together and with each other, to violate Section 2339(a) of 3 Title 18, United States Code. 4 38. It was a part and an object of said conspiracy 5 that Lynne Stewart and Mohammed Yousry, the defendants, and 6 others known and unknown, within the United States, would and 7 did provide material support and resources, to wit, would and 8 did provide personnel by making Abdel Rahman available as a 9 co-conspirator, and would and did conceal and disguise the 10 nature, location and source of material support and resources, 11 to wit, would and did conceal and disguise the nature, 12 location, and source of personnel by considering and disguising 13 that Abdel Rahman was a co-conspirator, knowing and intending 14 that such material support and resources were to be used in 15 preparation for, and in carrying out, a violation of Section 16 956 of Title 18, United States Code, to wit, the conspiracy 17 charged in Count Two of this indictment, and in preparation 18 for, and in carrying out, the concealment of such violation. 19 Title 18, United States Code, Section 371." 20 The indictment in paragraph 39 then lists the overt 21 acts that are alleged to have been committed by the defendants 22 in furtherance of the conspiracy. 23 The conspiracy statute that the defendants are charged 24 with violating in Count Four is Section 371 of Title 18 of the 25 United States Code. That statute provides, in relevant part, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12343 51C5SAT3 Jury Charge 1 that: 2 "If two or more persons conspire... to commit any 3 offense against the United States... and one or more of such 4 persons do any act to effect the object of the conspiracy, 5 each..." 6 Person is guilty of a crime. 7 As I explained when I instructed you on Counts One and 8 Two, a conspiracy is a kind of criminal partnership -- an 9 agreement or mutual understanding of two or more persons to 10 join together to accomplish some unlawful purpose. Count Four 11 of the indictment charges that the object of the conspiracy was 12 to violate Title 18, United States Code, Section 2339(a), by 13 providing, or by concealing or disguising the nature, location, 14 or source of, material support or resources to the conspiracy 15 to murder or kidnap, charged in Count Two, knowing or intending 16 that the support or resources were to be used in preparation 17 for, or in carrying out, the conspiracy to murder or kidnap. I 18 have previously set forth the elements of Section 2339(a) in 19 connection with Count Five and you should apply those 20 instructions here. 21 The crime of conspiracy to violate a federal law is an 22 independent offense. It is separate and distinct from the 23 actual violation of any specific federal laws, which, as I 24 previously explained, the law refers to as "substantive 25 crimes." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12344 51C5SAT3 Jury Charge 1 Thus, you may find a defendant guilty of the 2 conspiracy charged in Count Four even though the substantive 3 crime in Count Five that was the object of the conspiracy was 4 not actually committed, if you find that the government proved 5 the following elements of a conspiracy beyond a reasonable 6 doubt with respect to that defendant. 7 In order to satisfy its burden of proof with respect 8 to Count Four, with respect to the defendant you are 9 considering, the government must establish each of the 10 following four elements beyond a reasonable doubt as to each 11 defendant: 12 First, that two or more persons entered into the 13 unlawful agreement charged in Count Four of the indictment 14 starting in or about September 1999; 15 Second, that the defendant you are considering 16 knowingly and willfully became a member of the conspiracy; 17 Third, that one of the members of the conspiracy 18 knowingly committed at least one of the overt acts charged in 19 the indictment, or one which is substantially the same as one 20 explicitly charged, in the Southern District of New York; and 21 Fourth, that the overt act or acts which you find to 22 have been committed was or were committed to further some 23 objective of the conspiracy. 24 I have previously instructed you, in connection with 25 Count One and Two, on the elements of the existence of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12345 51C5SAT3 Jury Charge 1 conspiracy, knowing membership in a conspiracy, conscious 2 avoidance of knowledge, and overt acts. You should follow my 3 previous instructions on these maters in determining whether 4 the government has proved the element at issue beyond a 5 reasonable doubt. 6 I remind you that the object of the conspiracy charged 7 in Count Four is a violation of Title 18, United States Code, 8 Section 2339A, by providing, or by concealing or disguising the 9 nature, location, or source of, material support or resources 10 to the conspiracy to murder or kidnap charged in Count Two 11 knowing or intending that the support or resources were to be 12 used in preparation for, or in carrying out, the conspiracy to 13 murder or kidnap. I have previously set forth the elements of 14 Section 2339A in connection with Count Five and you should 15 apply those instructions here. 16 Now that I have instructed you on the elements of the 17 conspiracy charged in Count Four, I want to give you another 18 instruction with respect to the substantive offense charged in 19 Count Five. 20 There is another method by which you may evaluate the 21 possible guilt of defendants Lynne Stewart and Mohammed Yousry 22 for the substantive charge contained in Count Five of the 23 indictment, even if you do not find that the government has 24 satisfied its burden of proof with respect to each element of 25 the substantive offense charged in Count Five against either or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12346 51C5SAT3 Jury Charge 1 both defendant Lynne Stewart or Mohammed Yousry, and even if 2 you do not find that the government has satisfied its burden of 3 proof that either or both defendant Lynne Stewart or Mohammed 4 Yousry aided and abetted the commission of the substantive 5 offense charged in Count Five. 6 If, in light of my instructions, you find, beyond a 7 reasonable doubt, that the defendant you are considering was a 8 member of the conspiracy charged in Count Four of the 9 indictment, and thus guilty of the conspiracy charged in Count 10 Four, then you may also, but you are not required to, find that 11 defendant guilty of the substantive crime charged in Count Five 12 of the indictment, provided you find each of the following 13 elements beyond a reasonable doubt: 14 First, that the crime charged in Count Five was 15 committed; 16 Second, that the person or persons you find actually 17 committed the crime charged in Count Five were members of the 18 conspiracy charged in Count Four that you found existed; 19 Third, that the substantive crime charged in Count 20 Five was committed pursuant to the common plan and 21 understanding you found to exist among the conspirators in 22 Count Four; 23 Fourth, that the defendant you are considering was a 24 member of the Count Four conspiracy at the time the crime 25 charged in Count Five was committed; and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12347 51C5SAT3 Jury Charge 1 Fifth, that the defendant you are considering could 2 have reasonably foreseen that the crime charged in Count Five 3 might be committed by that defendant's co-conspirators. 4 If you find all five of these elements to exist beyond 5 a reasonable doubt, then you may find the defendant you are 6 considering guilty of the crime charged in Count Five, even 7 though that defendant did not personally participate in the 8 acts constituting the crime or did not have actual knowledge of 9 it. 10 The reason for this rule is simply that a 11 co-conspirator who commits a substantive crime pursuant to a 12 conspiracy is deemed to be the agent of the other co-conspir -- 13 of the other conspirators. Therefore, all of the 14 co-conspirators must bear criminal responsibility for the 15 commission of the substantive crimes. 16 If, however, you are not satisfied as to the existence 17 of any of these five elements, then you may not find the 18 defendant you are considering guilty of the crime charged in 19 Count Five, unless the government proves, beyond a reasonable 20 doubt, that the defendant you are considering personally 21 committed, or aided and abetted the commission of the crime 22 charged in Count Five. 23 Defendants Mohammed Yousry and Lynne Stewart have 24 testified that they were unaware of the existence of the 25 conspiracy charged in Count Two, if such a conspiracy existed. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12348 51C5SAT3 Jury Charge 1 Defendant Mohammed Yousry testified that he never 2 envisioned that any of his actions would aid or bring about 3 murders or kidnappings in a foreign country; in a similar vein, 4 defendant Lynne Stewart testified that she never intended that 5 her actions would aid or assist such a conspiracy. 6 As I have previously instructed you, part of one 7 element of the crime charged in Count Five is that the know or 8 intend that the support or resources were to be used in 9 preparation for, or in carrying out, the conspiracy to murder 10 or kidnap persons outside the United States charged in Count 11 Two. 12 One element of the conspiracy charged in Count Four is 13 that the defendant, knowingly and willfully, became a member of 14 the conspiracy whose unlawful purpose was to provide material 15 support or resources, or conceal or disguise the nature, 16 location, or source of material support or resources, knowing 17 or intending that they were to be used in preparation for, or 18 in carrying out, the conspiracy charged in Count Two. 19 Unless the government proves that the defendant you 20 are considering knew of the conspiracy charged in Count Two and 21 with that knowledge, committed the elements of the offense 22 charged in Count Five, as I have explained them to you, or 23 became a member of the conspiracy charged in Count Four, as I 24 have explained the elements of that crime to you, the defendant 25 you are considering -- Mohammed Yousry or Lynne Stewart -- must SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12349 51C5SAT3 Jury Charge 1 be found not guilty of Counts Four and Five. 2 I will now instruct you on Count Three of the 3 indictment. 4 Perhaps just for a rest we should take a stretch break 5 before I begin Count Three and I can rest my voice. Thank you. 6 (Stretch break) 7 THE COURT: All right. Please be seated, all. 8 I will now instruct you on Count Three of the 9 indictment. Count Three charges defendant Ahmed Abdel Sattar 10 with soliciting another person to engage in violent terrorist 11 operations worldwide to achieve the Islamic Group's objectives. 12 Count Three reads as follows: 13 Count Three. Solicitation of crimes of violence. 14 "The grand jury further charges: 15 34. The allegations in paragraphs 1 through 27, 30(a) 16 through 30(ii), and 33(b) through 33(h) of this indictment, are 17 realleged and incorporated by reference as though fully set 18 forth herein. 19 35. From in or about September 1999 through in or 20 about April 2002, in the Southern District of New York and 21 elsewhere, Ahmed Sattar, also known as "Abu Omar," also known 22 as "Dr. Ahmed," the defendant, and others known and unknown, 23 with the intent that other persons engage in conduct 24 constituting a felony that has as an element the use, attempted 25 use, and threatened use of physical force against property or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12350 51C5SAT3 Jury Charge 1 against the person of another in violation of the laws of the 2 United States, and under circumstances strongly corroborative 3 of that intent, solicited, commanded, induced, and otherwise 4 endeavored to persuade such persons to engage in such conduct, 5 to wit, Ahmed Abdel Sattar, solicited, commanded, induced and 6 otherwise endeavored to persuade other persons to engage in 7 violent terrorist operations worldwide to achieve the Islamic 8 Group's objectives, in violation of Title 18, United States 9 Code, Section 956, 2332 and 2332B. 10 Title 18, United States Code, Section 373." 11 The solicitation statute, Section 373 of Title 18 of 12 the United States Code, provides that: 13 "Whoever, with intent that another person engage in 14 conduct constituting a felony that has as an element the use, 15 attempted use, or threatened use of physical force against 16 property or against the person of another in violation of the 17 laws of the United States, and under circumstances strongly 18 corroborative of that intent, solicits, commands, induces, or 19 otherwise endeavors to persuade such other person to engage in 20 such conduct..." 21 Is guilty of this offense. 22 In order to meet its burden of proof on Count Three of 23 the indictment, the government must establish beyond a 24 reasonable doubt the following two elements: 25 First, that defendant Ahmed Abdel Sattar, solicited, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12351 51C5SAT3 Jury Charge 1 commanded, induced or otherwise tried to persuade another 2 person to commit a violent crime that has, as an element, the 3 use, attempted use, or threatened use of physical force against 4 the person or property of another; and 5 Second, that the defendant's actions strongly 6 indicated that he intended the other person to commit a violent 7 crime that has, as an element, the use, attempted use, or 8 threatened use of physical force against the person or property 9 of another. 10 Count Three alleges that from in or about September 11 1999 through in or about April 2002, Ahmed Abdel Sattar 12 solicited, commanded, induced, or otherwise tried to persuade 13 one or more other persons to engage in violent terrorist 14 operations worldwide to achieve the Islamic Group's objectives, 15 in violation of Title 18, United States Code, Section 956 and 16 2332. 17 Title 18, United States Code, Section 956, as I have 18 previously instructed you, makes it illegal to conspire to 19 murder or kidnap a person or persons outside the United States. 20 Section 2332 makes it illegal to kill, conspire to kill, or 21 otherwise engage in physical violence with the intent to cause 22 (or that actually causes) serious bodily injury to a United 23 States national while that person is outside of the United 24 States. 25 I instruct you that both Sections 956 and 2332 have, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12352 51C5SAT3 Jury Charge 1 as elements, the use, attempted use, or threatened use of 2 physical force against the person or property of another. 3 Thus, if you find that the defendant Ahmed Abdel Sattar 4 solicited, commanded, induced or otherwise tried to persuade 5 another person to participate in a conspiracy to murder or 6 kidnap someone outside the United States, or if you find that 7 the defendant Ahmed Abdel Sattar solicited, commanded, induced, 8 or otherwise tried to persuade another to kill, conspire to 9 kill, or otherwise engage in physical violence with the intent 10 to cause or that actually causes serious bodily injury to a 11 United States national while that person is outside of the 12 United States, this element would be satisfied with respect to 13 Count Three. 14 The government need not prove that the defendant 15 solicited, commanded, induced, or otherwise tried to persuade a 16 specifically-named person to engage in such conduct. He need 17 only have solicited some person to satisfy this element. 18 The government need not prove that the defendant 19 solicited, commanded, induced and tried to persuade; any one of 20 those is sufficient. However, in order to return a guilty 21 verdict, you must find beyond a reasonable doubt that he did 22 one of those things. I remind you that the defendant's action 23 must strongly indicate that he intended that another person 24 commit violations of Title 18, United States Code, Sections 956 25 or 2332. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12353 51C5SAT3 Jury Charge 1 As I stated, the second element of the crime of 2 solicitation requires the government to establish that the 3 defendant's actions strongly indicated that he intended the 4 other person to commit a violent crime that has, as an element, 5 the use, attempted use, or threatened use of physical force 6 against the person or property of another. 7 In determining whether the government has proved 8 beyond a reasonable doubt this element of the offense of 9 solicitation, which is the state of mind of Ahmed Abdel Sattar, 10 you may consider all of the evidence in the case that bears on 11 Ahmed Abdel Sattar's intent, including evidence of his 12 statements and other activities and his testimony. 13 I instruct you that it is no defense to a prosecution 14 for soliciting a crime that the person solicited could not be 15 convicted of the crime because he lacked the state of mind 16 required for its commission, because he was incompetent or 17 irresponsible, or because he is immune from prosecution or is 18 not subject to prosecution. 19 I will now instruct you on Counts Six and Seven of the 20 indictment. Counts Six and Seven charge defendant Lynne 21 Stewart with knowingly and willfully making false statements to 22 and submitting false writings and documents to the Bureau of 23 Prisons, a division of the United States Department of Justice, 24 on two separate occasions. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12354 51CMSAT4 Jury Charge 1 THE COURT: Counts 6 and 7 read as follows: Count 6, 2 false statements. The grand jury further charges: 3 42. The allegations in paragraphs 1 through 27, 30(a) 4 through 30(ii), and 33(b) through 33(h) of this indictment are 5 realleged and incorporated by reference as though fully set 6 forth herein. 7 43. In or about May 2000, in the Southern District of 8 New York and elsewhere, Lynne Stewart, the defendant, in a 9 matter within the jurisdiction of the executive branch of 10 government, to wit; the United States Department of Justice and 11 its agency, the Bureau of Prisons, unlawfully, willfully, and 12 knowingly made materially false, fictitious and fraudulent 13 statements and representations, and made and used a false 14 writing and document knowing the same to contain materially 15 false, fictitious and fraudulent statements and entries, to 16 wit, Stewart submitted an affirmation to the United States 17 Attorney's Office for the Southern District of New York falsely 18 stating, among other things, the following: 1. That Stewart 19 "agrees to abide by the terms" of the Special Administrative 20 Measures applicable to Abdel Rahman; 2. That Stewart "shall 21 only be accompanied by translators for the purpose of 22 communicating with inmate Abdel Rahman concerning legal 23 matters"; and 3. That Stewart shall not "use her meetings, 24 correspondence, or phone calls with Abdel Rahman, to pass 25 messages between third parties, including but not limited to, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12355 51CMSAT4 Jury Charge 1 the media, and Abdel Rahman." Title 18, United States Code, 2 Section 1001. 3 Count 7, false statements. 4 The grand jury further charges: 5 44. The allegations in paragraphs 1 through 27, 30(a) 6 through 30(ii), and 33(b) through 33(h) of this indictment are 7 realleged and incorporated by reference as though fully set 8 forth herein. 9 45. In or about May 2001, in the Southern District of 10 New York and elsewhere, Lynne Stewart, the defendant, in a 11 matter within the jurisdiction of the executive branch of the 12 of government, to wit, the United States Department of Justice 13 and its agency, the Bureau of Prisons, unlawfully, willfully 14 and knowingly made materially false, fictitious, and fraudulent 15 statements and representations, and made and used a false 16 writing and document knowing the same to contain materially 17 false, fictitious and fraudulent statements and entries, to 18 wit, Stewart submitted an affirmation to the United States 19 Attorney's Office for the Southern District of New York falsely 20 stating, among other things, the following: 1, that Stewart 21 "agrees to abide by the terms" of the Special Administrative 22 Measures applicable to Abdel Rahman; 2. That Stewart "shall 23 only be accompanied by translators for the purpose of 24 communicating with inmate Abdel Rahman concerning legal 25 matters"; 3. That Stewart "will only allow the meetings to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12356 51CMSAT4 Jury Charge 1 used for legal discussion between Abdel Rahman and her"; and, 2 4. That Stewart shall not "use her meetings, correspondence, 3 or phone calls with Abdel Rahman to pass messages between third 4 parties, including but not limited to, the media, and Abdel 5 Rahman." Title 18, United States Code, Section 1001. 6 The relevant statute on this subject is Section 1001 7 of Title 18 of the United States Code. It provides, in 8 relevant part: "Whoever, in any matter within the jurisdiction 9 of the executive branch of the government of the United States, 10 knowingly and willfully makes any materially false, fictitious, 11 or fraudulent statement or representation; or makes or uses any 12 false writing or document knowing the same to contain any 13 materially false, fictitious, or fraudulent statement or entry 14 shall be" guilty of a crime. 15 In this case, Counts 6 and 7 of the indictment each 16 charge that defendant Lynne Stewart knowingly and willfully 17 made materially false, fictitious, or fraudulent statements or 18 representations and that she used a false writing or document, 19 knowing the same to contain materially false, fictitious, or 20 fraudulent statements or entries. You may find that the 21 defendant performed both of these acts through a single course 22 of conduct. However, to render a guilty verdict on Counts 6 23 and 7, you must unanimously agree, beyond a reasonable doubt, 24 for the particular count that you are considering, that 25 defendant Lynne Stewart committed one of these acts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12357 51CMSAT4 Jury Charge 1 Similarly, Counts 6 and 7 of the indictment each 2 allege that defendant Lynne Stewart knowingly and willfully 3 made a number of false or fraudulent statements or 4 representations and that she used a false writing or document 5 knowing the same to contain a number of materially false, 6 fictitious, or fraudulent statements or entries. The 7 government is not required to prove that all of the statements 8 that are alleged as false, fictitious, or fraudulent in the 9 count you are considering, whether Count 6 or 7, are, in fact, 10 false, fictitious, or fraudulent. Each juror must agree with 11 each of the other jurors, however, that the same statement or 12 representation alleged in Count 6 or Count 7 to be false, 13 fictitious, or fraudulent is, in fact, false, fictitious, or 14 fraudulent. The jury need not unanimously agree on each such 15 statement alleged, but, in order to convict, must unanimously 16 agree upon at least one such statement as false, fictitious, or 17 fraudulent when knowingly made or used by defendant Lynne 18 Stewart. Unless the government has proven the same false or 19 fraudulent statement to each of you, beyond a reasonable doubt, 20 you must acquit defendant Lynne Stewart of the charge in the 21 count you are considering, whether Count 6 or Count 7. 22 I will now instruct you on the elements of the offense 23 charged in Counts 6 and 7. 24 The purpose of Section 1001 is to protect the 25 authorized functions of the various governmental departments SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12358 51CMSAT4 Jury Charge 1 from any type of misleading or deceptive practice, and from the 2 adverse consequences which might result from such deceptive 3 practices. 4 To establish a violation of Section 1001, it is 5 necessary for the government to prove certain essential 6 elements -- which I will soon describe for you -- beyond a 7 reasonable doubt. However, I want to point out now that it is 8 not necessary for the government to prove that the government 9 agency was, in fact, misled as a result of the defendant's 10 action. It does not matter that the agency was not misled, or 11 that it did not know that the alleged act was misleading or 12 deceptive, should you find that the act occurred. These 13 circumstances would not excuse or justify a false, fictitious, 14 or fraudulent statement made, or a false writing or document 15 submitted, willfully and knowingly about a matter within the 16 jurisdiction of the government of the United States. 17 In order to prove defendant Lynne Stewart guilty of 18 violating 18 U.S.C. 1001 by making a materially false, 19 fictitious, or fraudulent statement or representation, the 20 government must prove beyond a reasonable doubt that: 21 First, on or about the date specified in the count you 22 are considering, Lynne Stewart made a material statement or 23 representation; 24 Second, the statement or representation was false, 25 fictitious, or fraudulent; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12359 51CMSAT4 Jury Charge 1 Third, the false, fictitious, or fraudulent statement 2 was made knowingly and willfully; and 3 Fourth, the statement or representation was made in a 4 matter within the jurisdiction of the government of the United 5 States. 6 The first element that the government must prove 7 beyond a reasonable doubt is that the defendant made a 8 statement or representation. In this regard, the government 9 need not prove that the defendant physically made or otherwise 10 personally prepared the statement in question. It is 11 sufficient if she caused that statement charged in the 12 indictment to have been made. Under this statute, there is no 13 distinction between written and oral statements. 14 The government must also prove beyond a reasonable 15 doubt that the statement or representation was material. A 16 statement is material if it could have influenced the 17 government agency's decisions or activities. However, proof of 18 actual reliance on the statement by the government is not 19 required. 20 The second element that the government must prove 21 beyond a reasonable doubt is that the statement or 22 representation was false, fictitious, or fraudulent. A 23 statement or representation is false or fictitious if it was 24 untrue when made, and known at the time to be untrue by the 25 person making it or causing it to be made. A statement or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12360 51CMSAT4 Jury Charge 1 representation is fraudulent if it was untrue when made and was 2 made or caused to be made with the intent to deceive the 3 government agency to which it was submitted. 4 The third element which the government must prove 5 beyond a reasonable doubt is that the defendant acted knowingly 6 and willfully. An act is done knowingly if it is done 7 purposely and voluntarily, as opposed to mistakenly or 8 accidentally. An act is done willfully if it is done with the 9 intention to do something the law forbids, a bad purpose to 10 disobey the law. 11 As I have told you, the fourth element with respect to 12 Counts 6 and 7 is that the statement or representation be made 13 with regard to a matter within the jurisdiction of the 14 government of the United States. I charge you that the Bureau 15 of Prisons is part of the Department of Justice, which is a 16 department of the United States Government. 17 There is no requirement that the statement be actually 18 directed to or given to the Department of Justice or the Bureau 19 of Prisons. All that is necessary is that you find that it was 20 contemplated that the statement was to be utilized in a matter 21 which was within the jurisdiction of the government of the 22 United States. To be within the jurisdiction of a department 23 or agency of the United States Government means that the 24 statement must concern an authorized function of that 25 department or agency. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12361 51CMSAT4 Jury Charge 1 In order to prove defendant Lynne Stewart guilty of 2 violating 18 U.S.C. Section 1001 by using a false writing or 3 document, the government must prove beyond a reasonable doubt 4 that: 5 First, on or about the date specified in the count you 6 are considering, Lynne Stewart used a writing or document; 7 Second, the writing or document contained a material 8 false, fictitious, or fraudulent statement or entry; 9 Third, the defendant knew that the writing contained a 10 false, fictitious, or fraudulent statement or entry, and 11 knowingly and willfully used said writing or document; and 12 Fourth, the document or writing was used in a matter 13 within the jurisdiction of the government of the United States. 14 The first element that the government must prove 15 beyond a reasonable doubt is that the defendant used a writing 16 or document. In this regard, the government need not prove 17 that the defendant personally prepared the writing or document. 18 It is sufficient to satisfy this element if you find that she 19 caused the writing or document charged in the indictment to be 20 used. 21 The second element that the government must prove 22 beyond a reasonable doubt is that the writing or document was 23 false, fictitious, or fraudulent. A statement or 24 representation is false or fictitious if it was untrue when 25 made, and known at the time to be untrue by the person making SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12362 51CMSAT4 Jury Charge 1 it or causing it to be made. A writing or document is 2 fraudulent if it was untrue when made and was made or caused to 3 be made with the intent to deceive the government agency to 4 which it was submitted. 5 The government must also prove beyond a reasonable 6 doubt that the false statement or representation was material. 7 A statement is material if it could have influenced the 8 government agency's decisions or activities. However, proof of 9 actual reliance on the statement by the government is not 10 required. 11 The third element which the government must prove 12 beyond a reasonable doubt is that the defendant acted knowingly 13 and willfully. An act is done knowingly if it is done 14 purposely and voluntarily, as opposed to mistakenly or 15 accidentally. An act is done willfully if it is done with an 16 intention to do something the law forbids, a bad purpose to 17 disobey the law. 18 As I have told you, the fourth element with respect to 19 Counts 6 and 7 is that the writing or document be used or made 20 with regard to a matter within the jurisdiction of the 21 government of the United States. I charge you that the Bureau 22 of Prisons is part of the Department of Justice, which is a 23 department of the United States Government. 24 There is no requirement that the document be actually 25 directed to or given to the Department of Justice or the Bureau SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12363 51CMSAT4 Jury Charge 1 of Prisons. All that is necessary is that you find that it was 2 contemplated that the document was to be utilized in a matter 3 which was within the jurisdiction of the government of the 4 United States. To be within the jurisdiction of a department 5 or agency of the United States Government means that the 6 statement must concern an authorized function of that 7 department or agency. 8 Defendant Lynne Stewart is charged in Counts 6 and 7 9 with having knowingly and willfully made a number of false or 10 fraudulent statements or representations and with having used a 11 false writing or document knowing the same to contain a number 12 of materially false, fictitious, or fraudulent statements or 13 entries. In each count, the statements were allegedly 14 contained in an affirmation submitted to the United States 15 Department of Justice. The alleged false statements were 16 statements, as specified in Counts 6 and 7 of the indictment, 17 that she agreed to abide by certain conditions with respect to 18 her contacts with Sheikh Omar Abdel Rahman. The indictment 19 charges that the statements were knowingly and willfully false. 20 As I have already explained, the government must prove 21 beyond a reasonable doubt that the statements were untrue when 22 made and that the defendant acted knowingly and willfully. In 23 order to prove the defendant Lynne Stewart guilty of the crimes 24 charged in Counts 6 and 7, the government must prove beyond a 25 reasonable doubt that the defendant Lynne Stewart knowingly and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12364 51CMSAT4 Jury Charge 1 willfully made false statements of her intent to abide by the 2 conditions with respect to her contacts with Sheikh Omar Abdel 3 Rahman or knowingly and willfully used the affirmations 4 containing the false statements of intent knowing that those 5 statements were false. 6 Even if you should find that the government proved 7 that defendant Lynne Stewart intentionally violated the 8 conditions in the affirmation she signed and intentionally 9 broke her promise recited in these affirmations, this does not 10 prove that she is guilty of the crimes charged in Counts 6 and 11 7 of the indictment. The crimes charged in Counts 6 and 7 of 12 the indictment are not that she broke her word, but that she 13 knowingly and willfully falsely stated that she intended to 14 abide by the conditions at the time she made those statements 15 or used those documents. It is for this reason that the 16 government must prove beyond a reasonable doubt that the 17 defendant Lynne Stewart acted knowingly and willfully at the 18 time she made the statements or used the documents and not at 19 some later time. 20 Good faith is an absolute defense to the charges in 21 Counts 6 and 7. A statement made with good faith belief in its 22 accuracy does not amount to a false statement and is not a 23 crime. This is so even if the statement is, in fact, 24 erroneous. However, disagreement with the law does not 25 constitute good-faith misunderstanding of what the law SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12365 51CMSAT4 Jury Charge 1 requires. 2 The burden of establishing lack of good faith and 3 criminal intent rests upon the prosecution. The defendant is 4 under no burden to prove her good faith; rather, the 5 prosecution must prove bad faith or knowledge of falsity beyond 6 a reasonable doubt. 7 I have already instructed you with respect to 8 arguments concerning the constitutionality or validity of the 9 SAMs and you are to apply that instruction to Counts 6 and 7 10 also. 11 For Counts 1 through 7, it does not matter if the 12 indictment provides that a specific transaction is alleged to 13 have occurred on or about a certain date, but the testimony 14 indicates that in fact it was a different date. The law only 15 requires a substantial similarity between the dates alleged in 16 the indictment and the dates established by the testimony or 17 exhibits. 18 In addition to all of the elements I have described to 19 you in Counts 1 through 7, the government must also prove that 20 venue is proper in this judicial district, that is, the 21 Southern District of New York. I instruct you that the 22 Southern District of New York includes Manhattan, the Bronx, 23 Westchester, Dutchess, Putnam, Orange, Sullivan, and Rockland 24 Counties. I discuss this issue separately from the elements of 25 the crime because it requires a different standard of proof. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12366 51CMSAT4 Jury Charge 1 On this issue of venue, and on this issue alone, the government 2 must prove venue by a preponderance of the evidence -- that is, 3 that it is more likely than not -- and not by proof beyond a 4 reasonable doubt. 5 With regard to Counts 1 through 7, you must determine 6 whether any act in furtherance of the crime charged occurred in 7 the Southern District of New York. In this regard, the 8 government need not prove that the crime itself was committed 9 in this district or that the defendant you are considering was 10 present here. It is sufficient to satisfy this element if any 11 act in furtherance of the crime occurred in this district. 12 You will notice that this issue and this issue alone 13 requires a showing by the government by a preponderance of the 14 evidence as opposed to proof beyond a reasonable doubt. As I 15 said, preponderance of the evidence simply means to prove that 16 something is more likely so than not so. In all other 17 respects, you must find each and every element of the offense 18 proved beyond a reasonable doubt before you may find the 19 defendant you are considering guilty of the charge you are 20 considering. 21 If you find that the government has failed to prove 22 this venue requirement, then you must acquit the particular 23 defendant of the charge you are considering. 24 That almost completes my instructions. I will close 25 briefly with final directions as to how you are to arrive at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12367 51CMSAT4 Jury Charge 1 your verdict. 2 I have already told you that you will be given a copy 3 of these instructions and a copy of the indictment. You will 4 also be given what is called a verdict form. The verdict form 5 is, in a sense, a road map to the charges and defendants as to 6 which you are to render verdicts and related matters on which 7 you are to make findings. The verdict form contains very brief 8 descriptions of the various counts of the indictment, just to 9 identify them. The form asks you, as to each defendant charged 10 in the particular count, whether your verdict is guilty or not 11 guilty, and it asks you some related questions. 12 All you have to do is follow the instructions on the 13 verdict form. They are very simple. 14 Do not touch the verdict form unless everybody has 15 unanimously agreed on the verdict on the particular count in 16 question. I said this to you, and I will repeat it: Your 17 verdict in this case must be unanimous, which means that all 12 18 of you who deliberate must agree on the verdict. The same 19 requirement of unanimity applies to your answers to the 20 additional questions on the verdict form. 21 The evidence presented has raised factual issues which 22 you must decide as trier of the facts, and you must resolve 23 those issues solely on the basis of the evidence you have heard 24 or the lack of evidence and my instructions on the law. Your 25 sworn duty is to determine whether each of the defendants is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12368 51CMSAT4 Jury Charge 1 guilty or not guilty solely on the basis of the evidence or 2 lack of evidence and my instructions on the law. 3 Again, I remind you, you must not be influenced by 4 sympathy or by any assumption, conjecture, or inference 5 stemming from personal feelings, the nature of the charges, or 6 your view of the relative seriousness or lack of seriousness of 7 the alleged crimes. 8 I caution you that under your oath as jurors you are 9 not to consider the punishment that may be imposed upon the 10 defendants if they are convicted. The duty of imposing a 11 sentence in the event of conviction rests exclusively upon me. 12 Your function is to weigh the evidence in the case and to 13 determine the guilt or nonguilt of each of the defendants 14 solely upon the evidence and the law which I have given to you 15 and which you must apply. 16 Each juror is entitled to his or her opinion, but you 17 are required to exchange views with your fellow jurors. This 18 is the very essence of jury deliberation. It is your duty to 19 discuss the evidence. If you have a point of view and after 20 reasoning with other jurors it appears that your own judgment 21 is open to question, then, of course, you should not hesitate 22 in yielding your original point of view if you are convinced 23 that the opposite point of view is really one that satisfies 24 your judgment and conscience. However, you are not to give up 25 a point of view that you conscientiously believe in simply SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12369 51CMSAT4 Jury Charge 1 because you are outnumbered or outweighed. You should vote 2 with the others only if you are convinced on the evidence and 3 the facts and the law that is the correct way to decide the 4 case. 5 We have made a record of these proceedings. If any of 6 you wish at any time to have any part of the testimony made 7 available to you, then simply have the foreperson send me a 8 note, dated and with the time, to that effect, and we will 9 comply with your request as quickly as we can. I am not 10 suggesting that you must or should do this. I am simply saying 11 that it is a service we can make available to you. It would be 12 helpful in the case of such a request if your note is as 13 precise as possible so that we can know exactly what it is that 14 you need. It does take time for the court reporter to find 15 testimony in the transcript. Therefore, please be patient if 16 you send a note and there seems to be a delay in our response 17 to you. Finally, if you do send me any notes, however, please 18 make sure you do not give any indication of your present state 19 of thinking on any disputed issue; particularly, you must not 20 inform me of your vote count on any issue. The foreperson 21 should sign any notes that you send to me. 22 As has been our practice, the foreperson should sign 23 any notes by using the foreperson's juror number. 24 In the course of your deliberations, you have the 25 right to review any of the exhibits that have been received in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12370 51CMSAT4 Jury Charge 1 evidence. If you wish to see any of these exhibits simply have 2 your foreperson send me a note requesting the exhibits you wish 3 to see. Again, however, I stress that no note should give me 4 any indication of your thinking on any disputed issue or on 5 your verdict. 6 Your verdict will and must be announced only in open 7 court at the end of your deliberations. Your verdict must be 8 by a unanimous vote of all of you. 9 The juror who sits in the number one chair, juror No. 10 329, will be the foreperson of the jury unless for any reason 11 he prefers not to act in that capacity, in which event your 12 first order of business will be to send me a note, signed and 13 dated, identifying the new foreperson. 14 Finally, when you reach a verdict, all of you should 15 sign the verdict sheet and then send me a note stating that you 16 have reached a verdict. Do not specify what the verdict is in 17 the note. Instead, the foreperson should retain the verdict 18 sheet, and hand it to us in open court when you are all called 19 in. I remind you that your verdict must be unanimous. 20 Members of the jury, I will ask you to go to the jury 21 room briefly while I confer with the attorneys to see if there 22 are any additional instructions that they would like me to 23 mention or anything I may not have covered in my previous 24 instructions. 25 Please do not discuss the case at all when you go to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12371 51CMSAT4 Jury Charge 1 the jury room because there is the possibility that I might 2 find it proper to give you additional instructions which you 3 may not presently have received. I emphasize that you are not 4 to talk about the case at all when you go to the jury room. 5 All rise, please, and the jury may go to the jury 6 room. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12372 51CMSAT4 1 (Jury not present) 2 THE COURT: I attempted to read the charge as it is 3 written. I made the one change that I was asked to do and so I 4 will have to have page 137 retyped to include the sentence that 5 I put in the typed copy: As has been our practice, the 6 foreperson should sign any notes by using the foreperson's 7 juror number. 8 As I mentioned to you, if anyone believes that I 9 didn't read it accurately or that the written charge that you 10 have should be changed in some way to reflect what I said, or 11 that I should tell the jury anything else, let me know now. 12 MR. PAUL: Your Honor, I'm not certain if you want us 13 to bring to your attention words that you stated to the jury 14 that are not specifically in the instruction, but I did make 15 notations when that did occur. I just bring it to the Court's 16 attention. 17 THE COURT: I leave that completely up to you. If you 18 would like to bring those to my attention and we can discuss 19 them as to whether you want me to add that to the charge, or 20 change it in any way, I'm happy to do that. 21 MR. PAUL: I am not suggesting that, your Honor. 22 Little notations I made. I'm not suggesting that the Court 23 bring the jury back to go over the charge with specific words 24 that were used unlike that's written in the charge. 25 THE COURT: Is there anything that I said that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12373 51CMSAT4 1 would prefer me to put in the charge that I did not, that I 2 said when I said it to them and it is not here? 3 MR. TIGAR: Every one of the few instances we noted 4 were nonmaterial matters that your Honor mentioned yesterday. 5 Speaking for Ms. Stewart, the answer would be no. The written 6 charge is fine and we would not ask that additional things be 7 said to the jury. 8 MR. RUHNKE: That's our position as well, your Honor. 9 MR. PAUL: That's fine, your Honor. 10 THE COURT: Government. 11 MS. BAKER: Your Honor, the government concurs. There 12 was no word change that was substantive in the government's 13 view. 14 THE COURT: Is there anything else that anyone would 15 like to tell me with respect to the charge before I call the 16 jury back? 17 MS. BAKER: Your Honor, I don't have anything else 18 with respect to the charge. I do have one point of which I 19 need to advise the Court regarding the redacted indictment. I 20 can do that now or wait, whichever the Court thinks is 21 appropriate. 22 THE COURT: Maybe you should do it now. 23 MS. BAKER: The government, in listening to your 24 Honor's charge, noticed one redaction that we neglected to make 25 to the indictment which apparently defense counsel had not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12374 51CMSAT4 1 noticed either because no one had brought it to our attention. 2 Because in Count 3, as originally charged, there were 3 three crimes of violence that were enumerated as being 4 solicited. The third one of those was 18 U.S.C. Section 2332B. 5 By the end of the case the government had determined not to 6 submit that predicate offense to the jury. Your Honor's 7 instructions to the jury were consistent with that, describing 8 only 956 and 2332. 9 But I just noticed that on page 29 of the redacted 10 indictment, it still lists 2332B as a third alternative, so we 11 you just need to make that one small additional change before 12 the redacted indictment is given to the jury. 13 THE COURT: End of Count 3 I should strike, and 2332B? 14 MS. BAKER: Yes, your Honor. 15 THE COURT: Defendants agree? 16 MR. PAUL: Yes. 17 THE COURT: The indictment should be redacted and the 18 parties should all look at it before it goes to the jury. You 19 should also give me a copy. 20 MS. BAKER: Your Honor, purely administrative 21 follow-up question to that. Does your Honor want copies of the 22 redacted indictment for each of the jurors, or one copy for the 23 jurors to share? 24 THE COURT: Unless the jurors ask, I give them one 25 copy of the charge, one copy of the indictment, unless they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12375 51CMSAT4 1 come back and ask for more. 2 Anything else? 3 MS. BAKER: Your Honor, the only other thing I would 4 say, in case the Court or any defense counsel was wondering, 5 the government has now obtained a Supreme Court copy of the 6 decision of Booker and Fan-Fan and reviewed it quickly, albeit 7 not under the circumstances conducive to absorbing all its 8 details. We don't believe that it requires the Court doing 9 anything differently today from what the Court was already 10 planning to do. If the Court wishes me to describe it briefly 11 based on my understanding of it, I'm happy to do that. 12 THE COURT: I would rather not keep the jury waiting 13 and we can discuss it after the jury leaves. We have waited. 14 We can wait another 15 minutes. 15 Let's bring in the jury. Mr. Fletcher is going to be 16 taking himself out of anything with respect to the jury. The 17 marshals will separate the lunches for jurors 13 through 16 18 when I send them back. 19 The marshals can bring the jurors in at this point, 20 rather than Mr. Fletcher. 21 I am also going to add that all lunch orders from this 22 moment on should be submitted through the marshals. 23 (Jury present) 24 THE COURT: Ladies and gentlemen, let me give you some 25 additional words about the course of the jury deliberations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12376 51CMSAT4 1 You will be deliberating in a room along the same 2 corridor as the main jury room that you've been using, but it 3 is not the main jury room you have been using. 4 It is very important that jury deliberations occur 5 only when all 12 of the jurors are present. And deliberations 6 are to cease if for any reason all 12 of you are not present. 7 There is a bathroom in the jury room. If anyone needs a 8 bathroom break, deliberations are to cease until all 12 of you 9 are ready to resume deliberations. It will not be possible to 10 leave the jury room during deliberations except, of course, 11 when you go home for the evening. When you are ready to break 12 for the day, send me a note and I will provide further 13 instructions. I remind you that no note should provide me with 14 any indication of your present state of thinking on any 15 disputed issue. Particularly, you must not inform me of your 16 vote count on any issue. 17 One exception to the rule that no one may leave the 18 jury room before the end of the day is that if any of you need 19 a smoke break, please advise the marshal. The marshal will 20 take the juror or jurors to a separate room for a smoke break. 21 Deliberations are to cease until the juror or jurors have 22 returned from the smoke break, and all 12 of the jurors are 23 present and ready to proceed with deliberations. 24 You need not send me a note advising me that a smoke 25 break is necessary or had occurred, but you are to follow my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12377 51CMSAT4 1 instructions that no deliberations are to occur during the 2 smoke break. 3 When you give any notes to the marshal, please stop 4 deliberating when you open the door to the jury room because 5 your deliberations are confidential. 6 On another matter, I advise you that the pace of jury 7 deliberations is up to you. You can deliberate as long as you 8 wish on any day, and you can deliberate on Fridays if you wish. 9 Today, however, I ask that you adjourn for the day at 4:00. It 10 would be helpful to us if you gave us some advance notice 11 whether you wish to deliberate later on any given day and 12 whether you wish to deliberate on Fridays or this coming 13 Monday, which is otherwise a holiday. 14 I remind you again that no note should give me any 15 indication of your present state of thinking on any disputed 16 issue or your vote count on any issue. 17 In a moment Mr. Fletcher will swear the marshal and 18 the jurors will go to deliberate. I also advise you that once 19 Mr. Fletcher has sworn the marshal, Mr. Fletcher also will not 20 be able to talk to you during your deliberations. All lunch 21 orders from this point on are to be submitted through the 22 marshals. 23 Only 12 jurors go to deliberate and so I ask that the 24 jurors who have been sitting in the 13th through the 16th 25 chairs, if you would please get your things and come back to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12378 51CMSAT4 1 the jury box and sit again in chairs 13 through 16. 2 After you have returned, Mr. Fletcher will swear the 3 marshal. And after the other 12 jurors have gone to 4 deliberate, I will have additional instructions for jurors 13 5 through 16. 6 So if jurors 13 through 16 could now get their things 7 and come back to the jury box, and then I will swear the 8 marshal. 9 (Alternate jurors not present) 10 (Alternate jurors present) 11 THE COURT: Ladies and gentlemen, Mr. Fletcher will 12 now swear the marshal who will be sworn to keep the jurors in 13 the course of their deliberations sequestered. 14 (Marshal sworn) 15 THE COURT: Jurors numbers 1 through 12 may now go to 16 deliberate. The marshal will take you initially to the jury 17 room which you have been using to pick up your things and then 18 take you to the jury room where you will be deliberating. 19 All rise, please. 20 (At 1:31 p.m., the jury retired to deliberate) 21 THE COURT: Jurors 13 through 16, can you come down to 22 the front row. It will be more convenient. 23 Jurors 13 through 16, as you have heard, only 12 24 jurors go to deliberate. However, it is possible under the 25 rules that one or more of you may actually be called to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12379 51CMSAT4 1 deliberate, to participate in the deliberations. And so it is 2 very important that you continue to follow my instructions so 3 that you will be in a position, should it occur, that you would 4 participate in the jury deliberations. 5 As I have said, it is very important to continue to 6 follow the instructions that I have given you. You are not yet 7 discharged as jurors. Please don't talk about this case at 8 all. Please don't talk about it with anyone. Please don't 9 look at or listen to anything to do with the case. If you 10 should see or hear something inadvertently, please simply turn 11 away. 12 Attempt simply not to think about the case, because if 13 you were called to deliberate you would then have to deliberate 14 with the other jurors. It is important that you be kept as 15 people who possibly could participate in those deliberations. 16 So don't talk about the case, don't look at or listen to 17 anything to do with the case. 18 When I send you back to the jury room I will ask Mr. 19 Grate to go back with you and Mr. Grate will give you a 20 telephone number to call in each day to find out if you have to 21 do anything else. 22 It is also possible that you will not be called back. 23 You will call in each day and there will come a time when Mr. 24 Grate will tell you you no longer have to call in. You would 25 then be discharged at that time. You are not discharged yet. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12380 51CMSAT4 1 But because there is the possibility that I may not 2 see you again here in court, it is appropriate for me to 3 address you on the occasion which may be the last occasion that 4 I see you in connection with this case. Many judges use this 5 occasion as an opportunity to thank jurors, whether they 6 participate in the deliberations or not, because of the time 7 that the jurors have devoted to the case. 8 Many years ago, however, I clerked for a great judge 9 of this court who made it a practice never to thank jurors 10 because he explained to the jurors that what they had done was 11 to perform one of the highest and noblest obligations of 12 citizenship. They had afforded parties to a case a fair and 13 impartial trial. And by doing that they perform a public 14 service. They have acted as fair and impartial jurors. And 15 for performing a public service the jurors are entitled to take 16 from the process the personal satisfaction of knowing that they 17 have performed a public service, and that personal satisfaction 18 is far more important than the ephemeral thanks of the Court or 19 the parties. It is something that is very important and very 20 lasting. Having sat with you over this many months, I believe 21 that all of you take away from this process the deep personal 22 satisfaction of knowing that you have performed a public 23 service. You have been fair, impartial, conscientious, and 24 knowing that all of you take away that satisfaction gives me 25 satisfaction. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12381 51CMSAT4 1 With that, there are a couple of other details. As 2 I've told you, Mr. Grate will talk to you, give you a telephone 3 number. I also know that all of the details with respect to 4 the jury fee check will be taken care of through the mail. You 5 don't have to come back for any of that. Mr. Grate will see to 6 all of that. 7 I reiterate, as I did before, the importance of 8 following the instructions because of the possibility that you 9 may come back to participate in the discussion. So please 10 don't talk about the case and always remember, don't look at, 11 listen to anything to do with the case. If you should see or 12 hear something inadvertently, simply turn away. 13 With that, the only thing that remains is to ask 14 everyone in the courtroom to stand as a sign of respect to all 15 of you, and you can go to the jury room. 16 All rise, please. 17 You can go to the jury room, and Mr. Grate will follow 18 you to the jury room. 19 (Alternate jurors excused) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12382 51C5SAT1 Deliberations 1 THE COURT: Please be seated, all. 2 It will take us a little time to do the last pages of 3 the charge. 4 It might be best for us to take about a half an hour 5 break. You might be able to get something eat and I could come 6 back with the charge. Please inspect the indictment and the 7 special verdict form. The procedure each time is that if 8 anything goes to the jury it should go to Mr. Fletcher first 9 and then to the marshal and everyone should agree upon what 10 goes. Similarly, if anything comes from the jury it goes to 11 the marshal, to Mr. Fletcher, then to me. 12 Does the government want to explain what Booker and 13 Fanfan did? 14 MS. BAKER: I'm happy to do that, if the Court would 15 like, to the best of my ability having read it once quickly. 16 As the Court I'm sure recalls, the Supreme Court in 17 the case was addressing two questions: The first question was 18 whether the Sixth Amendment is violated by the imposition of an 19 enhanced sentence under the United States Sentencing Guidelines 20 based on the sentencing judge's determination of a fact other 21 than a prior conviction that was not found by the jury or 22 admitted by the defendant. And, in a five-justice decision 23 offered by Justice Stevens, the Court answered that question in 24 the affirmative. The Court found that the Federal Sentencing 25 Guidelines could not be distinguished from the Washington state SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12383 51C5SAT1 Deliberations 1 sentencing guidelines that were found to violate the Sixth 2 Amendment in the Blakely case. 3 The second question that the Supreme Court was 4 addressing was one of the remedy to be applied if the first 5 question was answered in the affirmative. And I don't have 6 right here the precise wording of the second question but in 7 answering that second question regarding remedy the Court, 8 again in a five-justice opinion offered by Justice Breyer, held 9 that the provision of the federal sentencing statute that makes 10 the guidelines mandatory, which is 18, U.S.C., Section 11 3553(b)(1) is incompatible with the requirements of the Sixth 12 Amendment and that therefore that provision had to be severed 13 and excised, along with a related statutory section which is 14 Section 3742(e), which has to do with the standard of review on 15 appeal. 16 And with those excisions, the remainder of the 17 guideline scheme remains in effect and the net effect of that 18 is that the sentencing guidelines are now advisory and a Court, 19 in imposing sentence, is to take into consideration all of the 20 provisions of the guidelines but the guidelines are no longer 21 mandatory. 22 THE COURT: Okay. 23 MS. BAKER: Your Honor, as to the redacted indictment, 24 we just asked our paralegals to go back to the office to make 25 that correction that I described a few minutes ago. It will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12384 51C5SAT1 Deliberations 1 take a few minutes for them to come back here with the 2 corrected version. In the meantime, we have here, and I don't 3 know whether it was distributed yet to defense counsel, a 4 version that we believe is otherwise accurate. 5 THE COURT: Okay, why don't I see you all at 2:15. 6 I will ask the marshal to hold any notes until we are 7 gone. 8 (Luncheon recess) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12385 51C5SAT1 Deliberations 1 A F T E R N O O N S E S S I O N 2 2:39 p.m. 3 (Trial resumed; jury deliberating) 4 THE COURT: Please be seated, all. 5 I have two notes from the jurors, they'll be marked as 6 Court Exhibits 11 and 12. Mr. Fletcher advised me the jurors 7 don't yet have envelopes so the parties are welcome to inspect 8 the notes. The notes are ministerial. 9 The first one is January 12, 2005, 14:10 hours, number 10 329. Two boxes of tissues. We still need two vans. We need 11 12 copies of the charges. We need coffee. 12 Next note: We need a coat rack; a table for the 13 coffee; an extra garbage pail; the clock is broken, please get 14 us a working one. There is a leak in the men's room; pens and 15 paper. Number 329. 16 The parties are welcome to inspect the notes and I 17 would ask the marshal to work on responding to that. 18 As I was going over the charge in response to the 19 comment with respect to the redacted indictment, it occurred to 20 me that the charge should reflect the redaction in Count Three 21 of 2232B and that would be on page 106 it should say Sections 22 956 and 2332, period, because I'm reading from the indictment 23 and the indictment has been redacted to take out 2232B. 24 MS. BAKER: Your Honor, the government agrees with 25 that and that would be consistent with pages ---or page 108 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12386 51C5SAT1 Deliberations 1 which is where the Court talks only about 956 and 2332. 2 THE COURT: Do the parties agree? 3 MR. PAUL: Yes. 4 THE COURT: Should I simply correct the charge that's 5 given to the jury without saying anything? 6 MR. STERN: Yes. 7 THE COURT: All the parties agree to that. 8 I have that changes made now. I wasn't sure if it was 9 going to be redacted to say, "956 and 2332," or whether it is 10 going to say, "956, 2332." I'm having two alternates done. 11 MS. BAKER: Your Honor, for the sake of readability so 12 it would appear as though it were not in any redacted and it 13 has always said what it says now, we did change it to say, "956 14 and 2332." 15 THE COURT: Well, I'm waiting, it's being done. But 16 after it being done the jury has asked for 12 copies of the 17 charge. I've got one copy ready to go to them and I can tell 18 them -- 19 MR. RUHNKE: Judge, actually the jury asked for 12 20 copies of the charge, which I read to be the indictment. 21 MS. BAKER: As did we, your Honor. 22 THE COURT: Oh. 23 MS. BAKER: As to that point, having -- 24 MR. TIGAR: We read it the opposite way, your Honor. 25 We read it as the Court did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12387 51C5SAT1 Deliberations 1 THE COURT: If there is a dispute about what the jury 2 is asking for then I will write the jury a note which says you 3 asked for 12 copies of the charges, are you looking for the 4 indictment or the -- or my instructions on the law. 5 MR. TIGAR: Well, we would have no objection to giving 6 them 12 copies of both, your Honor. 7 THE COURT: I have no -- it will just take me a while 8 to do that. 9 MS. BAKER: Your Honor, in light of the length of the 10 Court's charge, instructions and the amount of paper it would 11 consume to make 12 copies of that, perhaps it might make more 12 sense to ask the jury which one they meant. 13 THE COURT: Go ahead. 14 MR. TIGAR: I respectfully submit, your Honor, that to 15 raise a concern about the amount of paper with respect to a 16 matter of this kind -- 17 THE COURT: I agree with that. I agree with that. 18 The question is whether it is reasonable for me to 19 send 12 copies of the charge to the -- I mean, some Judges do 20 that. As a matter of, you know, course. And if there is any 21 view that the parties want me to send 12 copies of the charge 22 it is going to take a little time but I will just tell them, 23 I'm sending you 12 copies of the indictment, I am sending you a 24 copy of the charge and we will, as soon as we have additional 25 copies of the instructions made, we will send you 11 additional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12388 51C5SAT1 Deliberations 1 copies of the instructions. 2 MR. RUHNKE: That's fine, your Honor. Thank you. 3 THE COURT: Does the government have 12 copies of the 4 indictment? 5 MS. BAKER: Your Honor, having asked you earlier 6 whether you wanted to us have one or 12, I understand your 7 Honor didn't anticipate the jury's request, none of us had any 8 reason to, but because we did not anticipate the jury's request 9 we did not bring 12 additional copies. 10 I have five left here so we either need to go and make 11 some more or if the Court would prefer to do that. 12 THE COURT: Why don't I tell them I'm sending you a 13 copy of the indictment and the instructions as I told you I 14 would. We are making 11 additional copies of the indictment 15 and the instructions and we will provide them to you as soon as 16 they are ready. 17 MR. TIGAR: Defense agrees, your Honor. 18 THE COURT: Counsel, page 106 of the charge changed to 19 take out the and 2332B. Pages 137 and 138 of the charge 20 changed to put in the additional sentence about including the 21 foreperson's jury number. 22 I have extra copies for all of you of page 106 and 23 page 137 and 138. I have the verdict form, the charge with the 24 revised 106 and 137 and 138, and I have the government's 25 redacted indictment that they gave me. I ask all of you to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12389 51C5SAT1 Deliberations 1 look at that, to look at all of that before it goes to the 2 jury, and I have a note which will be Court Exhibit 13. 3 The parties are welcome to review it. 4 It reads: 5 Members of the jury, we are sending you the indictment 6 and the instructions and the verdict form. We will provide you 7 with 11 additional coppies of the indictment and the 8 instructions when they are prepared. We will provide pens and 9 paper and tissues and we will work on your additional requests. 10 We will continue to order two vans. 11 And now we have additional copies. 12 MS. BAKER: I understand the Court wants to wait until 13 it has the additional copies of the instructions as well but I 14 just wanted to hand them up to Mr. Fletcher. 15 THE COURT: The parties should inspect the note and 16 the instructions, the verdict form and the redacted indictment. 17 There are also envelopes, tissues, pens and pads. 18 Just double check to make sure that all there is 19 correct. 20 THE DEPUTY CLERK: Let the record reflect that the 21 clerk is marking the Court's note to the jury Court Exhibit 22 number 13 and is marking it 3:00 p.m. 23 THE COURT: The marshal advises that issues like the 24 coffee table and the coat rack can really only be dealt with 25 tonight and I'm perfectly happy to send them a note. Does SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12390 51C5SAT1 Deliberations 1 anyone have a problem with the marshal moving that stuff in 2 tonight? 3 MR. RUHNKE: No, your Honor. 4 MR. PAUL: No. 5 THE COURT: I will send them another note which says 6 we will take care of the coat rack -- the marshal will -- let's 7 send this in first, all right? 8 Is the note satisfactory to everyone? 9 MR. RUHNKE: Yes, your Honor. 10 MS. SHELLOW-LAVINE: Yes, your Honor. 11 MR. TIGAR: Yes, your Honor. 12 THE COURT: Let's send that in and I will write them 13 another note. 14 (Pause) 15 THE COURT: I have another note which reads: It will 16 be marked Court Exhibit 14, it reads: 17 All the defense and prosecutors' summations. 18 I propose to send a note to the jury which says 19 summations -- I received your note asking for the summations. 20 Summations are not evidence. If there is any evidence that you 21 seek, please let us know. 22 MR. RUHNKE: Agreed, your Honor. 23 MR. PAUL: We agree. 24 Your Honor, may my client be excused for two minutes 25 so he can pray in the back? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12391 51C5SAT1 Deliberations 1 THE COURT: Yes. 2 Let me ask one question. I was going to combine this 3 note, along with the note that the marshal received your 4 additional request for the coffee table and coat rack tonight 5 will be taken care of. 6 Is that satisfactory with everyone? 7 MR. PAUL: That's fine, yes. 8 THE COURT: The jurors' note with respect to 9 summations is number 14. My response will be Court Exhibit 15. 10 It reads as follows: 11 Members of the jury, I have received your note asking 12 for summations. Summations are not evidence. If there is any 13 evidence that you seek, please let me know. The marshal will 14 satisfy that your additional request for a coffee table and 15 coat rack will be taken care of tonight after have you 16 adjourned. 17 Is that satisfactory to everyone? 18 MR. TIGAR: Yes, your Honor. 19 MR. PAUL: Yes. 20 THE COURT: The parties are to inspect both notes and 21 then my note to the jury. 22 (Pause) 23 THE COURT: The marshal will keep the two notes of 24 jury requests for the moment so that he can see that they're 25 taken care of. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12392 51C5SAT1 Deliberations 1 The marshal is taking Court Exhibit 15 to the jury. 2 MR. TIGAR: I was standing because your Honor appeared 3 to be about to leave the courtroom. 4 THE COURT: I don't want to take up anything in 5 Mr. Sattar's absence. I appreciate that I was going to take up 6 the issues relating to notice with respect to the verdict. I 7 don't want to do that without everyone being here, so -- 8 MR. PAUL: He may be coming back now, Judge, possibly. 9 Your Honor, they're trying to get him out. Apparently the key 10 doesn't work. 11 (Mr. Sattar present) 12 THE COURT: All right. Everyone is here and I 13 mentioned this morning that I had received a request from the 14 press for notice with respect to any verdict. 15 MS. BAKER: I'm sorry, your Honor. I'm having 16 difficulty hearing you. Thank you. 17 THE COURT: I mentioned I had received a request from 18 the press with respect to notice with respect to any verdict 19 and also a request to interview the jurors if any jurors 20 wished, after any verdict, and if possible to make a room 21 available for that. 22 The procedures, as I've set out in the instructions, 23 are that -- to the jury -- is that they should not indicate 24 that there is a verdict other than in a note and they shouldn't 25 indicate what the verdict is; and the verdict then is returned SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12393 51C5SAT1 Deliberations 1 in open court. 2 So, there should be a note from the jurors indicating 3 that they have reached a verdict. As with all notes I would be 4 inclined to show that to the parties. I'm not inclined to give 5 any special notice to the press and I'm not inclined to tell 6 jurors that they can talk to the press or provide a room. 7 Whether the jurors wish to talk to the press is 8 completely up to the jurors, as I tell them. Whether they wish 9 to talk to anyone is up to the juror once they are released 10 from my instructions not to talk about the case at all. 11 But, I would urge jurors not to talk about the case. 12 It is up to jurors, they're not under my orders once they're 13 discharged but it is my view that to respect the 14 confidentiality of deliberations it is wise for jurors not to 15 talk about deliberations. They're not under my orders, they 16 can choose to do what they wish but I would urge them not to do 17 that. 18 So, I'm not inclined to set out any special room or 19 procedures for the jurors to do that. 20 As a matter of course, the jurors would have 21 transportation provided to them after they have finished their 22 deliberations and returned their verdict in open court. 23 Yes? 24 MR. TIGAR: Your Honor, I would respectfully ask the 25 Court to consider some thoughts that I would like to offer, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12394 51C5SAT1 Deliberations 1 as an adversary, but thoughts about the process. 2 I think there are three sets of people whose interests 3 are governed here; the first, of course, counsel and parties 4 are subject to the Court's continuing jurisdiction. And as I 5 understand it the practice has long been in this district that 6 we are forbidden to go and seek out or talk to jurors. And 7 that's my understanding. There have been cases about, you 8 know, arising under 606(b), there have been comments and 9 opinions and so on. 10 Now, the second group are the jurors themselves. And 11 while I certainly agree with the Court that jury deliberations 12 are confidential and there is a rule of evidence that 13 specifically says that, nonetheless, under Smith and 14 Butterworth, the jurors have a First Amendment right to 15 communicate to the world of whatever they want about those 16 deliberations -- 17 THE COURT: Which is why I tell them that they're no 18 longer subject to my order. 19 MR. TIGAR: Yes, your Honor. I understand that. 20 But I also would suggest to the Court that the jurors 21 have the right of privacy. They have a right not to have the 22 media go seeking them out trying to find out who they are and 23 so on. 24 And I have been in cases in which juror privacy has 25 been compromised in ways that I personally found upsetting in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12395 51C5SAT1 Deliberations 1 terms of the media's conduct, and I think that the jurors 2 resent it; you know, going out to people's houses and they come 3 out on the front lawn and so on. 4 To accommodate those interests and yet to inform the 5 jurors, I would respectfully suggest that your Honor say to the 6 jurors, look, you are not under my instructions. Tell them 7 frankly that they do have a right to communicate with the media 8 should they choose to do so. The vans are here to take them 9 home so if they want to leave by that means and have their 10 privacy protected, they can do so. They're not required to 11 accept the van transportation. And then, Judge Cedarbaum's 12 answer that there is a place they can go in the room might turn 13 out, under that scenario, to be the most dignified way rather 14 than have these catch as catch can conferences around the 15 precincts of the Court. 16 Now, the third group that's involved here is the 17 media. And in a case of this kind of course there are rules 18 about how close people can be to the court house and rules the 19 content of which I'm unaware. But there has, for so long as 20 I've been coming to this building, been a press room, been a 21 press corps, been a place where things happen, and I take the 22 media's letter as to some kind of a discussion that would, if 23 pursued, see to it that if a juror or jurors decided that they 24 wanted to talk to people, that it could be done with minimal 25 disruption and maximum preservation of everybody's dignity. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12396 51C5SAT1 Deliberations 1 So that's, as I say, I'm not saying that in any 2 adversary sense. I'm suggesting to the Court that that might 3 be an approach that differs slightly from the one that your 4 Honor had presented. 5 THE COURT: Does anyone else want to be heard? 6 MR. STERN: I think I would say that we agree with 7 Mr. Tigar. I would prefer that you not give the jurors your 8 opinion as to what they should do or not, just tell them what 9 their options are. 10 I think this case involves important issues and that 11 people might want to know how jurors reached whatever 12 conclusions that they reached. I don't mean by that that you 13 should inaccurately advise them; only that you should speak 14 with them if you choose, you should speak with them if you 15 choose. It is entirely your choice. 16 I'm not sure it is useful to urge jurors not to share 17 even what happened in deliberations since it is part of what 18 Americans do when they come and do jury duty. 19 So I would rather you not give your opinion but 20 obviously you should do what you should do. 21 MS. BAKER: Your Honor, the government agrees with 22 what the Court was proposing to do. If any juror wishes to 23 share his or her views with the media, the government is 24 confident that the juror will find a way to do that without a 25 room being set aside in the court house. And the danger that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12397 51C5SAT1 Deliberations 1 Mr. Tigar hypothesized which might be present in other cases of 2 the media bothering jurors at home, is not a danger present in 3 this case in light of the anonymity of the jury. 4 MR. RUHNKE: Your Honor, the question of the 5 notification of the verdict, is that a separate question? 6 THE COURT: I'm sorry? 7 MR. RUHNKE: The question from the press' request to 8 be notified when the verdict is returned, is that a separate 9 issue? Would you like to hear arguments on that as well? 10 THE COURT: Sure. 11 MR. RUHNKE: Reality and experience teaches us in a 12 case like this if we were to stand here and were a note to come 13 in and say the jury has reached a verdict, the word would 14 spread throughout the court house and there would be 50 United 15 States Attorneys here in 10 minutes, there would be lots of 16 supporters from the defense side here in 10 minutes. And 17 unless you are advising us if a member of the press walked by 18 and said what's going on, are we being instructed we couldn't 19 answer that question that they've reached a verdict? 20 If we are, that's one thing. If not, I frankly don't 21 see the harm in notifying the press when everybody else in the 22 court house is going to know in all of 10 minutes from the time 23 of the return of the note. 24 If your intent is to put a gag order on everybody not 25 to disclose the fact that the jury has reached a verdict and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12398 51C5SAT1 Deliberations 1 not to talk about it with parties, that's another matter. 2 (Continued on next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12399 51CMSAT6 Deliberations 1 THE COURT: I have such negative reactions to the 2 concept of gag orders that those words didn't cross my lips. 3 MR. RUHNKE: We didn't think they would, your Honor. 4 THE COURT: And notes always come to the Court first. 5 And if I get a note such as that, I think that in fairness I 6 should share it with the parties. I do not think that just 7 because I got that note that fairness also required that I 8 share it with everyone else. And if what you are telling me is 9 that sharing it with the parties means that it is sharing it 10 with everyone else, then I'll have to just think about the 11 procedures in my own mind. I'll think about it. 12 Mr. Tigar. 13 MR. TIGAR: Your Honor, if the Court was ready to move 14 to a different subject. 15 THE COURT: Before I leave that, does the government 16 want to be heard on that? 17 MS. BAKER: Your Honor, on the issue of the response 18 to the verdict note, I think the government agrees with 19 Mr. Ruhnke that it would be appropriate for the media to have 20 the opportunity to be here when any proceedings relating to the 21 verdict occur. And if the Court didn't wish to have the 22 responsibility of notifying media, the government is not aware 23 of any basis why the parties should not be permitted to notify 24 the media or why it would not simply be essentially a public 25 fact that a verdict is about to be rendered, even if the Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12400 51CMSAT6 Deliberations 1 doesn't specifically wish to take the administrative step of 2 contacting the press room. 3 THE COURT: I'll think about it. One way of resolving 4 the issue -- again, I'll think about it -- is simply read the 5 note in open court. If the parties wish to contact whoever 6 they wish to contact, they can contact whoever they wish to 7 contact, but I'll think about it. 8 As I've told you, there will be a delay in any event, 9 but I want to make sure that transportation is available for 10 the jurors, and it takes some time between getting a note and 11 the time the jurors would otherwise come in to provide their 12 verdict. 13 Mr. Tigar. 14 MR. TIGAR: Your Honor, the Court would probably do 15 this in any case. But because the jurors are leaving together 16 in two vans to go home, I would ask the Court to emphasize that 17 they are not to discuss anything to do with the case when they 18 are in a group smaller than the total deliberating group. 19 THE COURT: That's part of my standard instruction. I 20 tell them -- I call them back into the courtroom and I tell 21 them we are breaking for the day. And they are not to talk 22 about the case at all now because they are in the process of 23 leaving. And so all 12 of them are not together. 24 Deliberations should only occur when all 12 of them are 25 together. Please don't talk about the case at all while they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12401 51CMSAT6 Deliberations 1 go back to the jury room and break for the day. Don't talk 2 about the case when they go home. Don't talk about it when 3 they come back tomorrow because they should only talk about it 4 when all 12 of them are together. So please don't start 5 talking about the case until all 12 of you are present. When 6 all 12 of you are present, the foreperson will advise the 7 marshal that all of the jurors are together, and you may then 8 begin to deliberate. But only then. You don't have to come 9 back into court tomorrow, into the courtroom. The marshal will 10 advise us that you're all present and prepared to deliberate. 11 MR. TIGAR: I would suggest that the Court add a 12 clause to that that says that because you do travel to and from 13 the court in groups, when you're together for that, also don't 14 talk about it. 15 THE COURT: That's fine. 16 MR. TIGAR: That makes this case a little different 17 from others where they simply separate and leave. 18 THE COURT: Do you want the foreperson to give the 19 marshal a note tomorrow morning that they are all present? 20 Sometimes jurors do, sometimes they don't. 21 MS. BAKER: Your Honor, the government does not think 22 it is necessary for there to be a note that the jurors are all 23 here. As long as your Honor has instructed them not to begin 24 deliberating until they are all here, that is sufficient. 25 MR. RUHNKE: We agree, your Honor. This is not a case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12402 51CMSAT6 Deliberations 1 where the jurors dribble in in groups two or three. They show 2 up in blocks of six or eight. They are all here or they are 3 not. 4 THE COURT: Fine. 5 MS. BAKER: Your Honor, may I just ask a procedural 6 question? 7 A moment ago your Honor said something to the effect 8 of that the marshal will "advise us" that you're all present. 9 Does the Court wish counsel and the parties to be here in the 10 morning, or was the Court referring to the fact that the Court 11 will be advised? 12 THE COURT: No. I really expected the parties to at 13 least begin the day here so that the marshal will advise all of 14 us that the jurors are here and have begun deliberations. So I 15 usually ask the parties to be here by 9:30 in court just to 16 receive word from the marshal that all the jurors are here and 17 ready to deliberate. When I referred to that, it is not always 18 necessary for me to be here just to get the marshal's advice. 19 Mr. Fletcher can convey to me that the jurors are all here and 20 ready to continue deliberations. But the parties should be 21 here to begin, and they can leave so long as they are on 22 telephone notice to be able to come back promptly for any 23 notes. 24 I might as well cover with you also while you're here, 25 in addition to the instruction about not talking about the case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12403 51CMSAT6 Deliberations 1 at all when they leave the jury box and don't talk about it 2 when they go home in the vans or come back in the vans, don't 3 start talking about it tomorrow until they are all here, I also 4 tell them to leave any notes or documents relating to the case 5 in the jury room this evening. Don't take anything home. And 6 don't look at or listen to anything to do with the case. 7 All those instructions satisfactory? 8 It is about quarter to four. We had indicated to the 9 jurors that they should adjourn until 4:00 today. So I'll go 10 to the robing room and wait. 11 (Recess pending verdict) 12 THE COURT: I received a note from the jury. It is 13 marked as Court Exhibit 16. It reads: We are going home, 329. 14 The parties are welcome to inspect the note. I am 15 going to send the jury a note, the parties are welcome to 16 inspect. It says: Members of the jury, I have received your 17 note. I will call you back for instructions before you go home 18 for the evening. 19 Is that satisfactory? 20 MR. TIGAR: Yes, your Honor. 21 MR. RUHNKE: Yes, your Honor. 22 MR. PAUL: Yes, your Honor. 23 THE COURT: My note will be Court Exhibit 17 and when 24 I call them back I'll tell them that we will provide them 25 copies of the indictment and the instructions tomorrow morning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12404 51CMSAT6 Deliberations 1 and then give the instructions which I have explained to you. 2 The note is going to the jury. 3 (Jury before) 4 THE COURT: Ladies and gentlemen, we will provide you 5 tomorrow morning with the additional copies of the indictment 6 and the instructions. I want to give you some instructions as 7 you leave now for the day, and it follows up on my continuing 8 instructions to you. 9 It is very important that jury deliberations occur 10 only when all 12 of you are together. And you are not to talk 11 about the case unless all 12 of you are together. So when you 12 leave the box tonight, you will be in the process of leaving 13 and all 12 of you will not be together deliberating. So when 14 you leave the box now, don't talk about the case. You will go 15 home, you will ride in separate vans. Don't talk about the 16 case in the vans because all 12 of you will not be together and 17 deliberating. 18 Similarly, tomorrow morning, you will come in separate 19 vans. Don't talk about the case, because all 12 of you will 20 not be together. When you come back tomorrow morning and all 21 12 of you are together and ready to begin deliberations, the 22 foreperson should advise the marshal that all of you are 23 present and that you are going to start deliberations. That's 24 all. All present, ready to start deliberations and you can 25 then start deliberations. Don't tell the marshal anything SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12405 51CMSAT6 Deliberations 1 else. All of you are together, ready to start deliberations 2 and then you can start deliberations. The marshal will advise 3 all of us that you are all here and ready to start 4 deliberations. Don't tell the marshal anything else except 5 you're all here, ready to start deliberations. 6 Tonight leave any notes, any documents relating to the 7 case in the jury room. Don't take anything home with you. 8 When you go home, remember, don't talk to anyone about the 9 case, don't talk to anyone at all about the case. Remember, 10 don't look at or listen to, read anything to do with the case. 11 If you should see or hear something inadvertently, please 12 simply turn away. As I have repeatedly emphasized to you, 13 fairness and justice to the parties requires that you do that. 14 All of these rules help to ensure that deliberations 15 occur and you talk about the case only among the 12 of you when 16 you're all ready and deliberating here at the courthouse. 17 Don't talk to anyone else about the case. Talk only when 18 you're all together and deliberating. Don't look at or listen 19 to anything to do with the case when you go home. If you 20 should see or hear something inadvertently, simply turn away. 21 Have a very good evening and I look forward to seeing 22 you some time tomorrow morning. As I've mentioned, you will 23 not have to come back into the courtroom tomorrow morning when 24 you start deliberating. Just advise the marshal. 25 Have a good evening. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 12406 51CMSAT6 Deliberations 1 All rise, please. Please follow the marshal to the 2 jury room. 3 (Jury not present) 4 THE COURT: I thought I heard "judge" or something as 5 the jurors left. 6 The marshal will take care of the lunches. The bill 7 still comes to the Court. 8 Anything else? 9 Please be back in court by 9:30 so you will hear that 10 the jurors are ready to deliberate. Have a good evening. 11 (Adjourned to Thursday, January 13, 2005, at 9:30 12 a.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300