4295 471MSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 July 26, 2004 8 9:30 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 STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4296 471MSAT1 1 (Trial resumed) 2 MR. TIGAR: Ms. Stewart called and said something 3 happened on the Brooklyn Bridge. She waives her presence 4 during the nonjury proceedings this morning, and she will be 5 here, she trusts, by 9:30. 6 THE COURT: I am just going to discuss legal issues. 7 Any of the other parties have any objections? 8 MR. RUHNKE: No, your Honor. 9 THE COURT: Government? 10 MS. BAKER: No, your Honor. 11 THE COURT: The parties' correspondence raised issues 12 with respect to Government Exhibit 513 and the parties wanted 13 to be heard on that, so I'll listen to the parties on 513. 14 Mr. Sattar objects to Government Exhibits 2048 and 2080 and 15 asks to be heard on those. That's a subset of a larger group 16 of exhibits. I'll listen to Mr. Sattar on those exhibits, but 17 I have not -- I don't intend to reach those exhibits. 18 MR. FALLICK: Your Honor, we also object to parts of 19 Exhibit 513. 20 MR. BARKOW: Your Honor, we don't intend to use the 21 exhibits that your Honor just said, we don't intend to get to 22 those now. We don't intend to use those this morning. I don't 23 know that those necessarily need to be discussed. 24 THE COURT: I know that. In fact, you don't intend to 25 get to them this week. Because the list of exhibits that were SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4297 471MSAT1 1 for this week were 2014, 2016, 2059, 2060A and B. And I'm 2 happy to listen to the parties discuss those, though I suspect 3 that that should be at the end of the day. If we can bring in 4 the jury after the discussion of 513. 5 513. 6 MR. FALLICK: Your Honor, we object to 513 based on 7 401 and 403 grounds. But particularly we object to at least 8 the first page of the document, which is the editorialized 9 opinion of the publisher or editor of the article. This is not 10 Sattar's interview and at the very least should be redacted if 11 your Honor admits the interview itself. We also object to the 12 title on the top of page 2, which is also not part of the 13 interview, but the editor's characterization of the article. 14 MR. TIGAR: Your Honor, our objection was set out at 15 some length in our letter and relates at the beginning to this 16 evolving concept of what the Count 1 conspiracy consists of. 17 Apparently, the government now takes the position that if 18 anyone communicated with Sheikh Abdel Rahman through his 19 lawyers about matters relating to politics in Egypt that that 20 represented on the Sheikh's part the violation of the same. 21 Lawyers can't violate SAMs, but the theory there is a 22 conspiracy to violate them by reading letters. That, we think, 23 is a questionable proposition. And the idea that Taha becomes 24 a member of the Count 1 conspiracy is a proposition, as 25 indicated in the cases we cite, is a difficult one regardless SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4298 471MSAT1 1 of that. 2 THE COURT: He is alleged to be a coconspirator in the 3 Count 1 conspiracy. 4 MR. TIGAR: I understand he is alleged to be a 5 conspirator, but that wasn't proffered. One can presumably say 6 it was hearsay and subject to connection, based on that. I use 7 this opportunity to point out, as I have in my letters, that 8 this -- it is becoming very difficult for us to figure out when 9 these conspiracies started, when they terminated, and who were 10 the members of them. And I've cited cases on that issue. 11 Whether or not that is regarded -- page 1 is hearsay 12 by an unidentified declarant. Then there is someone called 13 Al-Minawi and he is apparently the interrogator. I say 14 apparently because all of this relates to somebody's hearsay. 15 It is even hearsay that this is Mr. Taha because the 16 conversations the government quotes do not reflect an adoption 17 of the kind that we have with respect to the earlier business. 18 But Al-Minawi makes a number of assertions. Some people say 19 this, some people say this. What about Bin Laden? Al-Minawi 20 is doing as much talking as Mr. Taha. He is not alleged to be 21 a member of the conspiracy and he is making assertions that are 22 assertions of fact. 23 Even with respect to the Taha material, the 24 conversation in question has to do with a release improvidently 25 of some statement by Taha. That's what Mr. Sattar and his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4299 471MSAT1 1 conversant were talking about allegedly. And that release was 2 in a form that Mr. Sattar and his conversant had not thought 3 would occur. 4 The article itself states that there were editorial 5 changes made. This is not an interview where somebody is 6 talking and their words are being taken down. This is a result 7 of some e-mail exchanges which are further edited by someone 8 else, according to the article, Muntasir al Zayyat. The only 9 reason we know that is through the hearsay evidence. 10 In short, your Honor, there is no foundation, even 11 under the government's theory, that Taha is a conspirator in 12 Count 1 and that this was during and in furtherance of. Of 13 course, we do challenge the furtherance assertion as well. 14 MR. RUHNKE: Your Honor, just so we are clear, we do 15 join those objections. 16 MR. TIGAR: Ms. Stewart has arrived. 17 DEFENDANT STEWART: Sorry, Judge. 18 THE COURT: No problem. 19 Mr. Tigar said that it was all right to go forward in 20 your absence. I wouldn't have gone forward in your absence 21 without his statement, and I also said that the only thing I 22 would discuss is legal issues while you were not here. 23 DEFENDANT STEWART: It is perfectly fine. I spoke 24 with him earlier, Judge. Thank you. 25 THE COURT: Government. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4300 471MSAT1 1 MR. BARKOW: Your Honor, briefly, first, with respect 2 to Mr. Fallick's requested redaction, we don't have a problem 3 with redacting as he proposes. 4 With respect to Mr. Tigar's comments, I would like to 5 focus on one unless the Court has questions about the other 6 issues. The statements between the participants on the 7 telephone calls authenticate this as a statement by Taha. For 8 example, in Exhibit 1019X, there is discussion between Sattar 9 and al-Shafi'i, al-Shafi'i being a reporter. And they are 10 talking about how al-Shafi'i was supposed to have a scoop on 11 this interview. The clear implication in that discussion is 12 that al-Shafi'i was supposed to be the one who published this, 13 and there is conversation about that. 14 And at one point on page 3 al-Shafi'i says that the 15 interview that is being published in the other publication, not 16 his own, is the "same exact words." And so the conclusion to 17 be drawn from that is that the article that was scooped is 18 exactly the same as the article that al-Shafi'i had thought and 19 hoped, apparently, that he was going to be able to publish. 20 Secondly, with respect to 1021X, which is the call 21 after publication, Mr. Sattar speaks to an unidentified male 22 about the interview and tells that person that the interview 23 has been published, directs him to the newspaper Asharq 24 al-Awsat and says nothing about it being incorrect. 25 Thirdly, the introduction, which is the part, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4301 471MSAT1 1 introduction to the article, which is the part that Mr. Fallick 2 sought to have redacted, makes clear that the editorial 3 changes, if any, that were made, were strictly the removal of 4 some redundancy. There is no suggestion that the meaning was 5 altered. In fact, when Mr. Sattar directs the unidentified 6 male to the article, he makes no comment that it has been 7 changed. And when the reporter, al-Shafi'i, says that the 8 article has been published and is being scooped, he says it is 9 the same exact words. And though clearly by the evidentiary 10 standard that needs to be met for offering it into evidence, it 11 is a statement by Taha and a correct statement by Taha. 12 Furthermore, in 1019X, there is conversation between 13 Sattar and al-Shafi'i in which it is made plain that al-Shafi'i 14 received the interview from Sattar -- I'm sorry -- that Sattar 15 received the interview actually from Taha. And so Mr. Sattar 16 is obviously a coconspirator. His statements can be taken for 17 the truth and he establishes through his conversation that he 18 got the interview from Taha, disseminated it to al-Shafi'i for 19 publication and al-Shafi'i says it is the same exact words. 20 For those reasons, as well as the reasons in the 21 letter, we think that it is sufficient authentication as a 22 statement by Taha. 23 MR. TIGAR: The difficulty with the argument from 1019 24 is that at page 5 of 1019X there is a discussion that the 25 matter was, first, with Muntasir, I hope you know, at 14. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4302 471MSAT1 1 whole debate of the entire conflict was with Muntasir, was that 2 Muntasir said we can't publish it as is. We have to amend it. 3 If they are talking about the same article and the newspaper 4 itself relates that somehow Mr. al-Zayyat is involved in this 5 process, then we have this problem that these are not 6 necessarily Mr. Taha's words. 7 Again, your Honor, the problem, of course, is that 8 this is not ordinary conspirator hearsay. Mr. Taha disappeared 9 in Syria. These people are many of thousands of miles away. 10 Our opportunity to go and figure this out is limited. And 11 that, I think, should be taken into account in the 12 admissibility determination here. 13 THE COURT: The issue is whether there is a sufficient 14 demonstration that these are the out-of-court statements by 15 Taha and alleged coconspirator during and in furtherance of the 16 conspiracy. 17 Putting aside the first page of the article, which 18 everyone agrees should be redacted because it is the statements 19 by the reporter, as they appear in the newspaper, the 20 statements attributed to Taha are the out-of-court statements 21 by the reporter that these were the words spoken by Taha in an 22 exchange over the internet. 23 The government points to Government Exhibit 1019 in 24 which Mr. Sattar discusses a statement by Taha and that 25 Mr. Sattar gave to the journalist al-Shafi'i. But it is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4303 471MSAT1 1 journalist al-Shafi'i in the transcript, not an alleged 2 coconspirator, who says that the statement will be published by 3 Al-Minawi and that it will be in the form of a dialogue that 4 would be the same words. 5 There is, so far as I can see so far from the 6 proffered transcripts, no confirmation by Mr. Sattar or 7 Mr. Taha that the words in the Al-Minawi article are Mr. Taha's 8 words rather than the reporter's statements of what Mr. Taha 9 said. The article itself purports to be a dialogue over the 10 internet and not the statement given by Mr. Taha to Mr. Sattar. 11 The article itself indicates that the reporter received a reply 12 from Mr. Taha which Taha wanted to be published. 13 The reporter indicates that he then engaged in an 14 interview over the internet which was then -- which then became 15 the published article. The reporter also indicates that 16 repetitive expressions in the answers and dialogue were dropped 17 and Muntasir al-Zayyat was asked to review what was purported 18 to be Taha's answers. The article then does not purport to be 19 the statement that Mr. Sattar says Taha gave to him and he, 20 Mr. Sattar, gave to al-Shafi'i. 21 At this point, therefore, the Court will not admit the 22 exhibit. The parties are welcome to give me any other cases or 23 arguments that would resolve the hearsay nature of the 24 statement based on the reporter's role in reporting the alleged 25 Taha statements. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4304 471MSAT1 1 MR. BARKOW: Your Honor, if I may, in 1021, Mr. Sattar 2 indicates to the unidentified male that he read the article and 3 in fact comments on its substance. 4 THE COURT: But he makes one comment in which he says 5 he saw it, or saw something on the internet, and tells the 6 unidentified male to get the article. He doesn't say that the 7 article is what he had given, at least not in the excerpt that 8 you gave me, and I had -- and I believe that that's where -- I 9 believe that that's where it stands so that the argument of -- 10 again, you're welcome to brief this -- the argument of adoption 11 would appear to be lacking a link. 12 MR. BARKOW: Your Honor, Sattar says that he got it 13 from Taha and then after it is published. 14 THE COURT: Where? 15 MR. BARKOW: In 1019 at page 5 and 6, Mr. Sattar says: 16 So I took the article from whom? From Abu Yasir. I told him I 17 am going to give it to Mr. Mohammed. And then in 1019 at 2 to 18 3, Mr. Sattar says that he then gave the same article to 19 al-Shafi'i and al-Shafi'i says, regarding revised report which 20 you gave me. And then al-Shafi'i goes on to say that it is the 21 same words. 22 And then the day that it is published Mr. Sattar 23 recommends it to the unidentified male without saying anything 24 is wrong with it, in fact, and making a comment that shows that 25 he has read it because he says that Taha, who was considered my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4305 471MSAT1 1 friend, "spoke about the Sheikh's issue. I saw it on the 2 internet, Al-Minawi." He says he saw it on the internet. He 3 says what he spoke about. He says who the declarant is. He 4 said who the interviewer is. He saying someone recommended to 5 read it. The standard here is a preponderance, I believe, 6 and -- 7 THE COURT: In arriving at the conclusion of the 8 admissibility, can I consider the hearsay statements of 9 al-Shafi'i? 10 MR. BARKOW: Yes, your Honor. Under Rule 104, the 11 Court can consider -- 12 THE COURT: Not a coconspirator. 13 MR. BARKOW: Correct. Also, I would add that to the 14 extent that the Court is concerned about anything edited by 15 al-Zayyat, which we actually don't think are established 16 here -- but al-Zayyat is also a coconspirator in Count 1. So 17 even if he did make edits, the combined statement of al-Zayyat 18 and Taha is basically a cowritten statement. But we don't 19 think that we need to get to that point. But if we do look at 20 whatever editorial content al-Zayyat supplied, he is just 21 another coconspirator participating in the creation of the 22 statement. 23 THE COURT: You're welcome to brief it. 24 If the jury is able to come in, I'm perfectly happy to 25 start rather than going through the other documents. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4306 471MSAT1 1 MS. BAKER: Your Honor, the government wishes to be 2 heard at some point on the issue of the prison visits. 3 THE COURT: Okay. 4 MS. BAKER: Would you like me to do that now? 5 THE COURT: If you want. Why doesn't Mr. Fletcher 6 tell us -- do you want to be heard now or at the lunch hour? 7 Briefly, could you tell me what the issue is? 8 MS. BAKER: Your Honor, to make it as brief as I 9 can -- 10 THE COURT: I'll let you speak at any length you want 11 later. 12 MS. BAKER: Sure. 13 It is our understanding that the issue currently 14 before the Court is a request by the defendants that under the 15 rule of completeness that the prison visits be admitted in 16 their entirety during the government's case. So it is my 17 understanding that that's what I am addressing here. As 18 briefly as I can, the government asks that your Honor not grant 19 that request. The rule of completeness is a fairness rule and 20 the government actually has been subjected to unfairness here 21 in light of the way this whole issue has played out. 22 And the government respectfully submits that in light 23 of all of the procedural history, the current posture, the 24 unfairness to the government in the way this issue has 25 developed, that it would be appropriate for the Court not to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4307 471MSAT1 1 require that the visits come in in their entirety now, but, 2 instead, to allow the government to introduce the minimized and 3 redacted versions of the visits in its case, and then any 4 additional portions that the Court might find are required by 5 the rule of completeness could be introduced in the defense 6 case. 7 If the Court rejects that request by the government 8 and does rule that some or all additional portions must be 9 introduced contemporaneously during the government's case, the 10 government needs to request an adjournment because we are not 11 able to accept the defense transcripts of the visits just from 12 our brief opportunity to look at them quickly over the weekend. 13 There are many differences between their transcripts and the 14 government's and many of those differences are significant. 15 So if the Court were to hold that the visits need to 16 come in in their entireties in the government's case or that 17 any significant additional portions need to be added into the 18 minimized redacted transcripts that we have ready or 19 essentially ready, we would need some time to come up with our 20 own finalized versions of the transcripts of those additional 21 portions. 22 THE COURT: Isn't it clear that if I have an objection 23 with respect to completeness that I would have to take both 24 sets of transcripts and rule -- I couldn't just say, okay. The 25 portions that the government wants to include are okay without SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4308 471MSAT1 1 looking at what's being proffered to me under the rule of 2 completeness, right? 3 MS. BAKER: It is our understanding that the rule of 4 completeness is a fairness rule that talks about making sure 5 that things are not taken out of context. The government has 6 not yet had an opportunity to review all of the additional 7 portions that the defendants are essentially proffering. We 8 already believe that some of the additional portions that are 9 proffered do not in any way add clarifying context to the 10 portions that the government is offering, but we are not in a 11 position to say that about all of the portions at this point. 12 We just haven't had enough time to look at them. We just 13 started to have access to them on Friday night. 14 But we believe that ultimately there are portions that 15 should never be admitted at any point during the trial. And 16 even as to the issue of whether there are some additional 17 portions that should be admitted for purposes of context, 18 again, because the rule of completeness is a fairness rule, but 19 because of the lack of fairness in the opposite direction, the 20 fact that the government wasn't afforded the notice provided 21 for by the protective order, we submit that the equities under 22 the circumstances argue in favor of proceeding in the manner 23 that I said a minute ago, which is to allow the government to 24 use the minimized redacted transcripts in its case and then the 25 defense in its case, even though they might not otherwise be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4309 471MSAT1 1 able to get in certain additional portions, would be able to 2 get them in under this circumstance if the Court finds that 3 they are appropriate under the rule of completeness, but just 4 that it be done later, in light of the logistical problem here. 5 Just to back up, as the Court is well aware, there 6 were very good legal reasons why the government did not have 7 access to those other portions of the transcripts. Some 8 portions had to be minimized pursuant to the FISA court 9 requirements and other portions were removed by the 10 government's well team in an abundance to protect Sheikh Abdel 11 Rahman's attorney-client privilege. The defendants knew all 12 along that the government would not have access those portions 13 and would not be offering them at trial. 14 The government sought in January of this year to 15 ensure that this very situation that we now find ourselves in 16 would not happen by proposing that protective order which 17 provided for no less than 14 days' notice to be given by the 18 defendants before they would seek to use any of the minimized 19 or redacted portions, and that protective order put the onus on 20 the defendants to come forward as the proponents of any of 21 those additional portions, and they did not come forward. And 22 the government proceeded in good faith on what we thought was 23 the absolutely clear understanding that what we would be 24 offering at trial would not include any of those portions. 25 And it wasn't until the last minute when it was too SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4310 471MSAT1 1 late for us to do anything about it, basically, that the 2 defendants first made clear that they want all of those 3 portions admitted. And so exactly the situation that we tried 4 to avoid by getting that protective order put into place in 5 January has now come to pass. And now that it is at the last 6 minute and we have not had time to get our own transcripts 7 finalized and ready, we have the defense offer of these other 8 sections. 9 And so we submit that the only thing that's fair 10 overall to both parties is that if under the rule of 11 completeness fairness suggests that they should get in some 12 additional portions, then so be it, those additional portions 13 can come in at a later time in their case. But, in the 14 meantime, the fairness in the opposite direction, which is 15 allowing the government to present its case in an orderly 16 fashion, based on what it had long clearly been getting ready 17 to do and based on what we specifically tried to avoid through 18 means of that protective order, that fairness in the direction 19 of the government is to allow the government to go ahead with 20 its transcripts in its case. 21 THE COURT: Just two thoughts before I listen very 22 briefly -- I'll listen to further argument on this. But Rule 23 106 is more than just a fairness rule. It is a rule that says 24 what in fairness is to be considered contemporaneously. There 25 was a time limit in the protective order. The time limit was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4311 471MSAT1 1 telescoped to both parties' advantage by eliminating, I think, 2 the seven days that Sheikh Rahman was given the opportunity to 3 object. And there is another provision of the protective order 4 that says any other objections can be raised at the time that 5 the transcripts are offered and the prison recordings are 6 offered. 7 MS. BAKER: Respectfully, your Honor, we drafted the 8 protective order and the Court approved it. And when we 9 drafted it with that 14-day time period, part of what we had in 10 mind was that Abdel Rahman should be afforded adequate time to 11 assert his privilege. But very significantly another thing 12 that we had very prominently in our minds in providing for a 13 14-day time period was the knowledge that if there were 14 additional portions that would be offered that we possibly 15 would need to have transcripts prepared of that. 16 So it does benefit all parties in a way that the 17 situation with respect to Abdel Rahman would be resolved more 18 quickly than the protective order contemplated, but that 19 doesn't change the fact that the government still needs time to 20 have transcripts ready because, as I indicated, we disagree 21 with the defense transcripts. 22 THE COURT: I'm not disputing that. And I would 23 certainly assure that all the parties are treated fairly and 24 not disadvantaged. 25 What do the defendants want to say, very briefly? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4312 471MSAT1 1 MR. RUHNKE: Extremely briefly. The only comment I 2 want to make at this point is the government's position that 3 the defense "did nothing." I'm still willing to write off my 4 conversations with Mr. Barkow as a misunderstanding. I they 5 were misunderstood and I want to leave it at that. I'm not 6 willing to leave it with Ms. Baker's comment that the defense 7 "did nothing." 8 In terms of the FISA redactions in the transcripts, it 9 is my understanding that 95 or 99 percent of the FISA 10 redactions were attorney-client related FISA redactions from 11 the transcripts. 12 THE COURT: I'm sorry? 13 MR. RUHNKE: Were attorney-client. 14 THE COURT: Go back one sentence. 15 MR. RUHNKE: My understanding, when the government 16 talks about the FISA redactions from the transcripts they 17 received, is that those redactions were based on whoever was 18 doing the FISA reports saw as attorney-client conversations and 19 therefore should be redacted from the government's set of 20 transcripts. 21 It was our view that once the Court had ruled 22 globally, especially in terms of waiver, on attorney-client 23 matters, that the government surely should have anticipated 24 that the privilege issue was going to not be evident, which is 25 the reason we started to have the conversations with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4313 471MSAT1 1 Mr. Barkow. 2 However this works out -- and I certainly endorse your 3 Honor's comment because it is exactly what the rule of 4 completeness is -- is to be considered contemporaneously. Not 5 subject to the rule of completeness and introduced later on is 6 a nonsequitur. I recognize we are probably going have to have 7 further discussions on this issue. 8 THE COURT: Can we bring in the jury. 9 (Jury present) 10 THE COURT: Good morning, ladies and gentlemen. It is 11 good to see you all. I hope you had a good weekend. 12 Government. 13 MR. MORVILLO: Your Honor, at this time the government 14 would request permission to play for the jury Government 15 Exhibit 1034, which is a call that is primarily in English that 16 occurred on November 5 of 1999. 17 THE COURT: All right. 18 MR. MORVILLO: We would also request that the Court 19 allow the government to display as an aid to the jury 20 Government Exhibit 1034X while the recording is playing. 21 THE COURT: All right. 22 MR. MORVILLO: Your Honor, if we could ask the jurors 23 to put on their headsets. 24 THE COURT: Yes. Ladies and gentlemen, would you put 25 on your headsets, dot facing out, and turn them on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4314 471MSAT1 1 MR. MORVILLO: May we proceed, your Honor? 2 THE COURT: Yes. 3 (At this point, Government 1034X, in evidence, was 4 displayed and played for the jury) 5 THE COURT: Stop. One juror's headset isn't working 6 and you can start the transcript from the beginning. 7 And, ladies and gentlemen, I should have reminded you 8 last week, when you're finished using the headsets, remember to 9 turn them off because the batteries go down. 10 MR. MORVILLO: May we proceed, your Honor? 11 THE COURT: Yes. 12 (At this point, Government 1034X, in evidence, was 13 displayed and played for the jury) 14 MR. MORVILLO: Your Honor, at this time, the 15 government would request permission to read to the jury 16 Government Exhibit 1040X. 17 THE COURT: In evidence? 18 MR. MORVILLO: I'm sorry, your Honor? 19 THE COURT: 1040X -- 20 MR. MORVILLO: There is a stipulation to it, your 21 Honor, but it is not yet in evidence. We would move it in at 22 this time. 23 THE COURT: Are you reading a stipulation first? 24 MR. MORVILLO: Your Honor, we previously read the 25 stipulation. It is Government Exhibit 100S-2. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4315 471MSAT1 1 THE COURT: 1034, which you read, was in evidence? 2 MR. MORVILLO: The transcript for the recording? 3 THE COURT: The recording. 4 MR. MORVILLO: The recording was in evidence, your 5 Honor. That was in Government Exhibit 1300. 6 THE COURT: And the transcript was an aid to the jury 7 except for those Arabic portions which are themselves in 8 evidence. 9 MR. MORVILLO: Your Honor, this next exhibit, 1040X, 10 is a telephone call that occurred on November 14, 1999. In 11 this excerpt there are two participants, Rifa'i Ahmad Taha Musa 12 and Sa'ad Hasaballah. The government would request permission 13 for Ms. Baker to read Ms. Hasaballah, and I would read 14 Mr. Taha. 15 THE COURT: 1040 is in evidence? 16 MR. MORVILLO: Yes, it is. It is in Government 17 Exhibit 1300. 18 THE COURT: Government Exhibit 1040X received in 19 evidence. 20 (Government's Exhibit 1040X received in evidence) 21 MR. MORVILLO: May we also have permission to display 22 it for the jury, your Honor? 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1040X, in evidence, 25 was displayed and played to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4316 471MSAT1 1 MR. BARKOW: Your Honor, at this point we would 2 request permission to read to the jury Government Exhibit 3 1255X. Government Exhibit 1255, the recording is in evidence 4 on Government Exhibit 1301, and this transcript, Government 5 Exhibit 1255X, is subject to the stipulation that Mr. Morvillo 6 previously referenced, but this transcript, 1255X, we now offer 7 into evidence. 8 THE COURT: 1255X received in evidence. 9 (Government's Exhibit 1255X received in evidence) 10 MR. BARKOW: We would request Mr. Forkner to go to the 11 stand and read the lines of Mr. Sattar, and I'll read the lines 12 of Mr. Al-Sirri. 13 Your Honor, may we proceed? 14 THE COURT: Yes. 15 MR. BARKOW: Your Honor, this is a call that occurred 16 on November 25, 1999 at 6:31 p.m. We would ask permission to 17 put the transcript on the screen to display for the jury as we 18 read it. 19 THE COURT: All right. 20 (At this point, Government Exhibit 1255X, in evidence, 21 was displayed and read to the jury) 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4317 47QLSAT2 1 MR. BARKOW: Your Honor, at this point the government 2 would request permission to publish to the jury what's already 3 been admitted into evidence as Government Exhibit 2020 from the 4 Sattar search; and 2020T, the translation of government 5 Exhibit 2020. 6 THE COURT: All right. 7 MR. BARKOW: Your Honor, may I have just a moment, 8 please? 9 THE COURT: Well, this might be a convenient time to 10 take our mid morning break. It's 11:00 o'clock. 11 Ladies and gentlemen, we'll take our mid morning break 12 for about 10 minutes. Please remember my continuing 13 instruction: Not to talk about the case, keep an open mind. 14 All right? 15 All rise, please. Please follow Mr. Fletcher to the 16 jury room. 17 (Jury exits the courtroom) 18 (Morning recess) 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4318 47QLSAT2 1 (In open court; jury not present) 2 THE COURT: 2020T is not yet received in evidence? 3 MR. BARKOW: I thought it was, your Honor. It was 4 part of a long series of exhibits, I thought, that I offered at 5 one time last week sometime. 6 THE COURT: My notes indicate that -- and you can 7 check, but -- 8 MR. BARKOW: I'm sorry, your Honor? 9 THE COURT: The government's exhibit list reflected 10 2020 for identification, but that was July 19th, 2004. And my 11 own checklist indicated 2020 in evidence subject to a limiting 12 instruction, but I didn't have 2020T. 13 MR. BARKOW: 2020T is subject to -- even if it's not 14 admitted in evidence, it's subject to a stipulation that was a 15 global stipulation for translations as to the Sattar search. 16 So I could offer 2020T. We're doing a check right now in the 17 transcript to find the status of 2020. 18 THE COURT: I believe that 2020 was a set of documents 19 that were admitted solely against Mr. Sattar, solely with 20 respect to his knowledge, intent and state of mind. 21 MR. BARKOW: That's correct, your Honor. 22 THE COURT: And subject to the limiting instruction 23 with respect to newspaper articles. 24 MR. BARKOW: That's correct, your Honor. We can look 25 in the transcript, but I can just offer 2020T now just to save SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4319 47QLSAT2 1 time, and it could be received twice, if it turns out to be -- 2 it turns out we missed it. 3 MR. TIGAR: If the looker at transcripts would look at 4 page 3812. 5 MR. BARKOW: The page numbers don't track on this 6 computer on the Livenote pages. It's not the same. 7 MR. TIGAR: It is our belief, your Honor, that it is 8 in evidence. 9 MR. BARKOW: It is ours as well. 10 THE COURT: Both 2020T and 2020? 11 MS. SHELLOW-LAVINE: That's correct. 12 MR. TIGAR: The answer is yes, your Honor. 13 THE COURT: All right. Well, all the parties agree, 14 and I'll remind the jury with respect to the limiting 15 instruction. 16 MR. TIGAR: And the -- my recollection could be 17 refreshed. The limiting instruction includes a not for the 18 truth, is that right? 19 It's the difficulty, your Honor -- this is a Taha 20 statement. Follows right on to some other -- 21 THE COURT: The newspaper article, which is -- is 2020 22 a newspaper article? 23 MR. BARKOW: Yes, your Honor. 24 THE COURT: It was -- the limiting instruction was it 25 was solely against Mr. Sattar, solely with respect to his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4320 47QLSAT2 1 knowledge, intent and state of mind. And it was the newspaper 2 article, so it's not being received for the truth. 3 MR. TIGAR: Thank you, your Honor. 4 MR. FALLICK: Your Honor, may I approach Mr. Barkow? 5 THE COURT: Sure. 6 (Off the record) 7 MR. BARKOW: Your Honor, just to tell the Court and 8 other counsel, Exhibit 2020, I just agreed with Mr. Fallick and 9 Mr. Paul. On the bottom is an irrelevant -- some irrelevant 10 articles and an irrelevant picture, and what we're going to do 11 is agree just to show to the jury the top, which is the 12 pertinent article, the relevant article, and I'll fold over the 13 bottom and not show it, and ultimately will just cut it off so 14 it's not in evidence. 15 THE COURT: All right. Let's bring in the jury. 16 MR. BARKOW: Your Honor, while we're waiting for the 17 jury, may I confer with Mr. Fallick and Mr. Paul again? 18 THE COURT: Sure. 19 (Off the record) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4321 47QLSAT2 1 (In open court) 2 (Jury entering courtroom) 3 THE COURT: Please be seated, all. 4 Ladies and gentlemen, when we broke, the government 5 sought to read -- to display Government Exhibit 2020 and to 6 read Government Exhibit 2020T, which is a translation. 7 Government Exhibit 2020 and 2020T are in evidence. 8 I've previously given you limiting instructions with 9 respect to this exhibit which was part of a group of other 10 exhibits. This particular exhibit is being received solely 11 against Mr. Sattar, solely with respect to his knowledge, 12 intent and state of mind. And because it's a newspaper 13 article, it's also subject to the previous instructions that 14 I've given you about newspaper articles: 15 It's not to be received for the truth of what's stated 16 in the newspaper article, but rather for its effect on the 17 state of mind of a person who reads the newspaper article. 18 All right. Mr. Barkow? 19 MR. BARKOW: Thank you, your Honor. 20 (At this point, Government Exhibit 2020, in evidence, 21 was displayed to the jury). 22 MR. BARKOW: Your Honor, may I now read government 23 Exhibit 2020T? 24 THE COURT: Yes. 25 MR. BARKOW: And may Ms. Griffith put it on the screen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4322 47QLSAT2 1 so we can follow it? 2 THE COURT: Yes. 3 (At this point, Government Exhibit 2020T, in 4 evidence, was displayed and read to the jury) 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4323 47QMSAT3 1 MS. BAKER: Your Honor, at this time, based on the 2 stipulation which is already in evidence and was previously 3 published to the jury, which is 100S-2, on the basis of that 4 stipulation, the government offers into evidence three 5 transcripts, 1256X, 1257X, and 1258X. The recordings for each 6 of those calls are already in evidence, all on the disk marked 7 as Government Exhibit 1301. 8 THE COURT: Government Exhibits 1256X, 1257X, and 9 1258X received in evidence. 10 (Government's Exhibits 1256X, 1257X, and 1258X 11 received in evidence) 12 MS. BAKER: As far as presenting them to the jury, 13 1256 and 1257 are back-to-back recordings made on December 2, 14 1999. The government, therefore, would request to play all of 15 1256, the recording, which is a three-minute and 20 minute 16 recording. Then immediately after that, to play a portion of 17 1257, which is the next recording, and after doing that, to 18 read the two transcripts to the jury back to back while 19 displaying them. 20 THE COURT: Are they Arabic conversations? 21 MS. BAKER: Yes, they are. 22 THE COURT: Again, ladies and gentlemen, I've given 23 you an instruction about transcripts being in evidence if they 24 are transcripts of conversations in a foreign language and 25 transcripts being an aid to your listening to the recordings if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4324 47QMSAT3 1 the recordings are in English, and these are Arabic 2 conversations. 3 MS. BAKER: Your Honor, while we play the recordings, 4 may we display the headers of the transcripts? 5 THE COURT: Yes. 6 MS. BAKER: If you would ask the jurors to put on 7 their headphones at this time. 8 THE COURT: Thank you. 9 Ladies and gentlemen, put on your headphones, dot 10 facing out, turn them on. 11 (At this point, Government Exhibit 1256, in evidence, 12 was displayed and played to the jury) 13 THE COURT: Ladies and gentlemen, you can take off 14 your headsets and remember to turn them off to save the 15 battery. 16 MS. BAKER: Your Honor, we would ask now that 17 Mr. Forkner come forward again to read the part of Mr. Sattar 18 in these two transcripts. 19 THE COURT: Right. 20 MS. BAKER: The first one, the other two participants 21 are Lisa Sattar very briefly and then Mustafa Hamza. I would 22 request permission to read both of those other parts. And then 23 when we continue with the next transcript, which is 1257X, I 24 will read Mustafa Hamza. There is also another party who 25 appears very briefly only at the beginning of the call. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4325 47QMSAT3 1 would ask permission to read that part as well. And Mr. Dember 2 will read the part of Muntasir al-Zayyat. 3 THE COURT: All right. 4 MS. BAKER: Beginning with Government Exhibit 1256X, 5 which is a call on December 2, 1999 at 23:14:08. 6 (At this point, Government Exhibit 1256X, in evidence, 7 was displayed and read to the jury) 8 MS. BAKER: Continuing now with Government Exhibit 9 1257X, which is the recording of a call on December 2, 1999 at 10 23:17:28. 11 (At this point, Government Exhibit 1257X, in evidence, 12 was displayed and read to the jury) 13 MR. MORVILLO: Your Honor, at this time the government 14 would request permission to read Government Exhibit 1258X in 15 evidence to the jury. This call is lengthy. It may take us 16 through the break. Would you like me to stop at 12:45? 17 THE COURT: Yes. Any convenient time about 12:45. 18 MR. MORVILLO: For the record, Government Exhibit 19 1258X is a telephone call that occurred on December 16, 1999 20 between Ahmed Abdel Sattar and Rifa'i Ahmad Taha Muser. 21 Mr. Forkner will read Mr. Sattar and I'll read Rifa'i 22 Ahmad Taha Muser. 23 (At this point, Government Exhibit 1258, in evidence, 24 was displayed and read to the jury) 25 MR. MORVILLO: Your Honor, there are several more SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4326 47QMSAT3 1 pages left. Would you like to break at this time? 2 THE COURT: Actually, we could finish. 3 MR. MORVILLO: Okay. 4 (Reading continued) 5 THE COURT: Ladies and gentlemen, we will break for 6 lunch until five after two. Please remember my continuing 7 instructions not to talk about the case. Always remember to 8 keep an open mind. Have a very good lunch. I look forward to 9 seeing you later this afternoon. 10 (Jury not present) 11 THE COURT: Please be back at five of two. Have a 12 good lunch. 13 (Luncheon recess) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4327 47QMSAT3 1 A F T E R N O O N S E S S I O N 2 (2:10 p.m.) 3 (In open court; jury not present) 4 MR. BARKOW: Your Honor, may I confer with counsel for 5 Mr. Yousry and Mr. Sattar for a moment? 6 THE COURT: Sure. 7 (Off the record) 8 THE COURT: Are we ready to bring in the jury? Okay, 9 bring in the jury. 10 MS. BAKER: Your Honor, before you do that, the issue 11 of the prison visits, as the government has indicated 12 previously, we seek to present the recording portion of our 13 case chronologically. And we expect that by sometime later 14 this afternoon, we will reach the point at which we would have 15 stopped to turn to the February, 2000 prison visit. So with 16 the issue of the prison visits and how that is going to be 17 handled is essentially an issue that is going to reach its 18 ripeness later this afternoon. So I don't know whether your 19 Honor wants us to just go as far as we can until we reach that 20 point, or how you would like to proceed? 21 THE COURT: Well, what I would like you to do is to do 22 it around -- the prison visit, to see if we could finish the 23 day without the prison visit, and my hope had been that perhaps 24 we could finish the week without getting to that. But I would 25 listen to all of you with respect to the issues about how to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4328 47QMSAT3 1 deal with -- I realize that one alternative is to give some 2 adjournment. In listening to the government this morning, it 3 is difficult to see that I would not give some form of 4 adjournment, because even under the government's hearing, I 5 have to look at fairness, completeness arguments with respect 6 to the rest of the transcript. I have those issues posed even 7 under the protective order. The protective said any other 8 objections would be raised at the time that the evidence is 9 offered, as I read it. So I can't ignore those issues. My -- 10 and I don't want to disadvantage any of the parties, and I 11 certainly will listen to all of you. 12 One possibility that occurred to me was to attempt to 13 finish the week and to give the jury sufficient advance notice 14 of a break that they could make any arrangements that they 15 wished to make with respect to a break. But I have to talk to 16 all of you about that and about where we are in the case and 17 the timing of the case. There are other issues that are out 18 there that impact on the argument for chronology and on where 19 you are with respect to that, such as the prison telephone 20 recordings and when they occurred and where they fit into the 21 chronology. 22 MS. BAKER: Your Honor, no prison calls were recorded 23 until June of 2000. So we have not yet reached a point in the 24 chronology where any of the prison calls would appear. 25 THE COURT: And there's only one visit that you're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4329 47QMSAT3 1 talking about in terms of the prison recording with respect to 2 1999, right? 3 MS. BAKER: No, your Honor, no visit in '99 was 4 recorded. There were visits in '99, but we don't have 5 recordings of them. The first recorded visit is February 19th 6 of 2000. And that is the date that we are going to get up to 7 by later this afternoon. 8 Your Honor, this is a -- 9 THE COURT: Then my question would be, you know, is it 10 possible to play soon without redaction the February, 2000 11 visit? 12 MS. BAKER: Your Honor, the government is not even in 13 a position yet to know which portions of that visit would be 14 objectionable, notwithstanding the rule of completeness. I 15 mean, the government's understanding of the rule of 16 completeness and the case law construing it is that the rule of 17 completeness does not mean that automatically every single 18 piece of a writing or a report comes into evidence merely 19 because the adverse party requests it. There really has to be 20 a determination that the portions that the original offering 21 party wanted to omit and that the adverse party seeks to offer 22 really do in some way add context or relate to the portions 23 that are in there. And we have seen just in looking at these 24 things very quickly over the weekend that there are portions -- 25 and again, we haven't looked at all of the parts of all visits; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4330 47QMSAT3 1 we just haven't had the time. But there are portions when, for 2 example, conversations about completely irrelevant subjects 3 matters occur while Sheikh Abdel Rahman is not even in the 4 room. We don't see how, notwithstanding the rule of 5 completeness, those portions would need to be admitted. They 6 don't add any context to what happens whether Sheikh Abdel 7 Rahman is in the room because he isn't there and they are 8 completely unrelated subject matters. 9 In addition, there are some portions that on top of 10 being truly irrelevant and not adding any context may be 11 inappropriate for some other reason. For example, there's a 12 portion in at least one of the visits where there is a 13 discussion of a medical condition of Mr. Yousry's wife. It is 14 totally irrelevant to everything else that happens in the 15 visit, and it can serve no purpose other than to elicit 16 sympathy from the jury, which would be inappropriate under the 17 circumstances. 18 And so, because we know that there are portions like 19 that, we need an opportunity to address more specifically the 20 defendant's arguments that other portions should come in under 21 the rule of completeness. 22 Moreover -- 23 THE COURT: All right. But what is it that you're 24 asking me to do now? Certainly it's not, Judge, we're getting 25 to this part in our case and so ignore all objections and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4331 47QMSAT3 1 simply let us play it. Right? I mean, that can't be the 2 application to me. Nor can it be an application that says, 3 Judge, we haven't -- we have barely seen the rest of the 4 transcript, but we've seen enough to say you should determine 5 that the rest of this shouldn't come in now. Right? I mean, 6 those can't be the applications. 7 So I can't simply rule, Go ahead and play them. All 8 right? 9 MS. BAKER: Your Honor, obviously, if there are 10 objections other than the rule of completeness, those other 11 objections need to be resolved. But specific actually with 12 respect to the rule of completeness, it is the government's 13 request of your Honor that because of the way -- the 14 application was made by the defendants to raise these other 15 portions of the rule of completeness, and because the request 16 was not made by the defense in the time period contemplated by 17 the protective order, it is the government's request to your 18 Honor that your Honor rule that the government should now be 19 permitted, once any other objections are resolved, to present 20 the minimized and redacted versions of the visits. And that in 21 the defendant's case, they can present the visits with such 22 other portions added in as your Honor ultimately determines are 23 required by the rule of completeness. 24 In other words, there may be portions which if just 25 offered by the defendants on their own would never be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4332 47QMSAT3 1 admissible, under the hearsay rule, for example. But 2 ultimately there might be a determination that there are some 3 portions that for the sake of context should be in there. But 4 because there is just not time to address those sorts of issues 5 right now and to have the government's case continue to be 6 presented in an orderly fashion, we would ask that those 7 determinations on the rule of completeness be deferred, 8 essentially, and resolved later, and then a more full version 9 of the visits could be presented in the defense case. 10 Our alternative application is for an adjournment. 11 Because if the Court does feel that the Court needs to allow in 12 at least some additional portions or consider each and every 13 additional portion on its merits right now as to whether or not 14 it's required under the rule of completeness, then what the 15 government has no choice but to ask for is time to evaluate 16 each portion under the rule of completeness and any other 17 objections, and time to get its own transcript ready of any 18 other portions that are ultimately determined to be admissible. 19 Because for the reason I stated earlier, the government is not 20 able to rely on any portion of the transcripts offered by the 21 defendant. 22 MR. RUHNKE: Your Honor? 23 THE COURT: Yes. 24 MR. RUHNKE: I suppose that explains why we got this 25 morning the government's final version of the February 19, 2000 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4333 47QMSAT3 1 prison visit transcript. And we had not seen the final until 2 this morning when it was handed out to us. The final version 3 of the February 19 prison visit runs approximately 185 pages. 4 And right now, we're actually -- a paralegal on our team is 5 comparing Government Exhibit 1700, 1701 and 1702, which is the 6 185 pages of February 19 -- with the complete transcript of 7 February 19 to find out what's been left out. I can't tell you 8 by leafing through it what's there and what's not there. And, 9 you know, leaving aside the fact we were told that, we didn't 10 think we were getting these prison visits for a couple of 11 weeks. 12 But we're here now. This is the government's 13 representation that this is where they have to be in their 14 case. I do find it hard to accept, given the volume of Sattar 15 material and other tapes that we've seen that have been 16 received into evidence that the government doesn't have 17 anything else it could do to occupy the jury's time. 18 But it's their case, and I'm not -- it's not my 19 position to tell them how they ought to try their case. 20 If the government genuinely thinks an adjournment 21 would help resolve these issues -- and frankly, I think it 22 probably works because we could then sit down and talk and 23 negotiate out some of these issues, or I hope we could, 24 negotiate out some of these issues. So that we could make a -- 25 you know, resolve any outstanding issues before the government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4334 47QMSAT3 1 goes forward. 2 I'm just a little surprised that it's today, is the 3 day. Because what I understand the government to be saying is, 4 unless you're willing to forget about 106 ruling, because the 5 defense was derelict in its duties under the protective order 6 and let us do exactly what we want to do, we need an 7 adjournment, we need an adjournment. I think your Honor's 8 instinct is to give the jury an advance notice that an 9 adjournment is coming up. It's a humanitarian, excellent 10 instinct because the jury's been here on this case for a time. 11 If they knew a block of time coming up, they could plan for it. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4335 47QMSAT5 1 THE COURT: They could do what you had and the 2 government had tried me to do at the outset which I denied, 3 which was -- 4 MR. RUHNKE: I understand the government's application 5 to be if you won't obviate the 106 problem by just letting them 6 do what they want to do, then we need an adjournment. We don't 7 oppose the request for the adjournment. We do oppose the 8 request to obviate the Rule 106 argument. 9 THE COURT: I really had intended to deal with all of 10 this at the end of the day because I wanted to find out where 11 you were in terms of timing and other matters. I know that 12 there are other blocks of material, including the prison 13 telephone calls, including the results of the search of 14 Ms. Stewart's office, I believe the results of the search of 15 Mr. Yousry's premises. 16 MS. BAKER: Respectfully, your Honor, we don't have 17 any other category of evidence ready to go. And as to each 18 category there are particular reasons why, which I could 19 recount if the Court needed to know. But the short answer is, 20 there is not another category. 21 THE COURT: All parties are respectfully asked to not 22 use that terminology except under the most dire circumstances. 23 I take it that all counsel addresses me with respect, and 24 usually when that term is used it is not used for its literal 25 meaning. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4336 47QMSAT5 1 The reason that I raise the other areas of evidence is 2 to raise a question in my own mind with respect to the issue of 3 chronology. Since there are other -- it is not to say, okay, 4 begin presenting the Stewart -- Ms. Stewart's search evidence. 5 It is rather to say, is it so disruptive to continue with the 6 chronology of a lot of evidence which is there without taking 7 the break to put in the prison visit transcripts. That was the 8 import of the question. 9 MS. BAKER: Again, your Honor, unfortunately, no other 10 category of evidence is ready to go. 11 THE COURT: There are a substantial number of 12 telephone calls, for example, that we haven't yet gotten to and 13 you can tell me that it would so disrupt the flow of those 14 calls not to put in the prison visits that we really can't do 15 that. 16 MS. BAKER: And that is the government's position and 17 we would ask your Honor not to direct us to do that because the 18 calls that follow the visits, really it is clear from the 19 content of the calls that the participants in the conversations 20 know what happened during the visits. They are discussing what 21 happened during the visits. And I'm sure that we all 22 recognize, counsel and the Court all recognize that this case 23 is a difficult case for the jury to begin with because of the 24 nature of the evidence and how it gets presented. And it will 25 be more difficult for the jury and it will really disadvantage SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4337 47QMSAT5 1 the government as far as the jury's ability to understand the 2 evidence and understand the pieces of evidence relative to each 3 other and follow any narrative threat at all of the case if the 4 government is required to take the recorded evidence out of 5 order. 6 Certain documents to go back and add a document later 7 is not as significant and any documents are sort of a little 8 bit more self-contained and stand alone. Really, with the 9 recorded evidence, the evidence really does flow in a 10 chronological fashion that the jury would be able to understand 11 it much more clearly if it were presented in chronological 12 order than if we were forced to continue forward with the 13 regular calls and double back for the visits. 14 THE COURT: Assume that I granted -- where are you in 15 terms of your estimates with respect to the time of the case? 16 When the government gave me the last estimate it was eight to 17 ten weeks for the government's case. We have done 17 days of 18 evidence, though a couple of those days were half days. So 19 fairly we have had about four weeks of evidence fairly set out. 20 MS. BAKER: Your Honor, in a very quick sort of 21 off-the-cuff effort to calculate the other day, trying to 22 figure out how quickly the presenting of calls had been going 23 and so on, I, without the benefit of my colleagues' input, came 24 to an estimate of approximately another five to six weeks of 25 presentation of government case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4338 47QMSAT5 1 THE COURT: Which would mean that we are about on 2 schedule. 3 MS. BAKER: Yes, your Honor. 4 THE COURT: I had thought that at one time we were 5 actually going ahead of schedule because I thought that with 6 the number of stipulations and the length of the cross, it 7 appeared to me that we were actually ahead. And it also struck 8 me that pruning is always useful in order to make things more 9 clear. I'm sure I repeated to you many of my homilies with 10 respect to length and the disadvantages of length as opposed to 11 brevity. 12 MS. BAKER: Of course, your Honor, we don't seek to 13 consume any more of the jury's time and the Court's time than 14 we believe is necessary for the government to prove its case. 15 It is difficult for all of the evidence is preexisting 16 recordings. We are forced to rely on recordings to establish 17 individual bricks in building a wall or a structure, and it is 18 not a very time efficient method of proceeding. 19 I think we have found that in certain ways things have 20 proceeded more quickly than we expected. There have been a few 21 more stipulations than we anticipated. On the other hand, in 22 certain ways, certain things have proceeded more slowly than we 23 expected. But the prison visits themselves are a very 24 time-consuming portion of the government's evidence that lies 25 ahead of us. There is a total of five days' worth of prison SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4339 47QMSAT5 1 visits, five, essentially, business days. And because each 2 visit involves very significant portions in Arabic, but also 3 portions in English, we believe that we will have to play the 4 recordings for the English portions, but also present the 5 transcripts by reading them for purposes of the Arabic 6 portions. 7 So the presentation of the prison visits itself will 8 be a significant portion of the time that we estimate that lies 9 ahead of us. And the same would be true of any prison calls 10 that ultimately are going to be used. And that is an area that 11 the government is obviously seeking to winnow down and not to 12 use more than is necessary. Although I don't know what the 13 defense view is on that, I thought that I had heard second or 14 third hand at one point that there was -- and I don't want to 15 misquote anyone -- but, essentially, that at one point the 16 defense had suggested or was considering that if any prison 17 calls were to be used, then they would argue under the rule of 18 completeness that they should all be used. Obviously, that's 19 an argument that the government would oppose. 20 THE COURT: But Mr. Ruhnke presented a CD which 21 included what I understood the defendant -- the defendants were 22 offering in terms of the prison calls which were about 60 23 compared to the government's offer of closer to 25. 24 MR. RUHNKE: Just to correct that, I think the record 25 would reflect that we still have eight or nine prison calls we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4340 47QMSAT5 1 were waiting for final transcripts on. What I presented to the 2 government was everything we had in final form as of last 3 Thursday. And the government is correct, that once we get the 4 government's final transcripts of the prison calls, which we 5 have not gotten yet, we may very well say that if you are going 6 to play portions of a prison call, then you ought to play them 7 all to put them into a fair context under Rule 106. 8 THE COURT: It is a wholly separate argument when the 9 rule relates to a writing or recorded statement or part 10 thereof. 11 MR. RUHNKE: But the rule goes on to talk about any 12 other writing or recording that ought to be, in fairness, 13 considered contemporaneously with it or words to that effect. 14 So that is an argument that we are going to be coming to. 15 Perhaps the government could give us a heads-up of when it 16 believes it is going to start to get to the prison calls which 17 begin, as Ms. Baker says, in June of 2000. 18 THE COURT: Well, you can have a seat, Mr. Ruhnke. 19 MR. RUHNKE: I don't know if you were going to ask me 20 a question. 21 THE COURT: Ms. Baker, you know what the answer is. 22 It is not conceivable to me that I would just say, well, go 23 ahead and play without listening to objections. Even the 24 protective order, as I read it -- and you can correct me if I'm 25 wrong -- the protective order provided for objections to be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4341 47QMSAT5 1 raised no less than seven days prior to the notice disclosure 2 date based on the attorney-client privilege or the attorney 3 work product. 4 MS. BAKER: Actually, your Honor, I interpret the 5 protective order a little bit -- not a little bit. I guess I 6 interpret the protective order very differently from the way 7 your Honor does. 8 It is my understanding of the protective order that 9 the rule of completeness objection is the reason for -- the 10 reason for is encompassed by the very notion of the defendants 11 coming forward and giving the not less than 14 days' advanced 12 notice. In other words, the defendants saying, here is some of 13 the redacted content that we are offering, whether they are 14 offering it in their own case or whether they are seeking to 15 offer it in our case under the rule of completeness, that that 16 desire to have the additional content in is what it is supposed 17 to effectively happen 14 days in advance, And then seven days 18 for privilege objections and then separately later any other 19 objection that might be available like hearsay or 20 authentication or I don't know what. But it is our reading of 21 the agreement that the seeking to have the additional parts in 22 is what starts the whole process in the first place with the 14 23 days' advanced notice. 24 THE COURT: But then read that way, what Mr. Ruhnke 25 would say is, when we learned that you were going to offer the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4342 47QMSAT5 1 prison recordings we said we wanted the rest included. And we 2 have gotten over the seven days for Sheikh Rahman to raise any 3 objections and we need -- and there has not been a 4 determination with respect to an offer of the remaining 5 portions. And where is it that -- defendants would say, we 6 have been raising this issue and we didn't mean in any way to 7 cut down on the time to give notice or have that material 8 reviewed. 9 MS. BAKER: Your Honor, at best, all I can say is that 10 there was tremendous miscommunication and lack of 11 understanding. Under the government's interpretation of 12 paragraph No. 2 on the fifth page of the protective order, we 13 expected that there would be a time when the defendants would 14 indicate their desire to use some or all of the redacted 15 content by providing that content or seeking permission to 16 provide that content to the government because paragraph 2 17 specifically says that when the defense wishes to use any 18 redacted content that they "produce" the specific portions of 19 the redacted content for which disclosure or use is sought. 20 And that did not happen until Friday. 21 Now, I assume the defendants would say back that they 22 didn't understand that we were only seeking to offer the 23 portions that were left after minimizing and redacting. We are 24 puzzled by that because we thought that it was abundantly clear 25 all along that we could offer no more than that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4343 47QMSAT5 1 THE COURT: No. What the defendants would say is 2 twofold. We didn't actually know the date when you were going 3 to offer them and only became aware fairly close on when you 4 intended to offer them and, second, we did communicate to some 5 of the government that we intended to offer the remainder wall 6 to wall. 7 MS. BAKER: Again, your Honor, as Mr. Barkow has 8 represented, he didn't understand the comments that way and 9 would I submit part of the reason for that is we were not 10 presented with a transcript of those other portions, which is 11 the procedure that's contemplated. 12 As to the fact that the defense didn't know the 13 particular date on which we would offer the visits into 14 evidence, what I would say in response to that is two things: 15 First, I think we had made clear from very early in the case 16 that with respect to the recorded evidence, putting aside 17 witness testimony because witnesses are a little bit 18 different -- but with respect to the recorded evidence that we 19 were proceeding chronologically. 20 And so everyone who has been here in the courtroom has 21 seen the evidence come in at the same pace. And I grant we 22 never went to the defense and said, we think that on July 20, 23 if that will be the day, we did not do that. But everyone was 24 here in the courtroom watching the case proceed at the same 25 pace. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4344 47QMSAT5 1 Moreover, we interpret the protective order to put the 2 onus on the defense to come forward with respect to the 3 redacted content. And because that protective order has been 4 in place since January, it just did not occur to us that there 5 would have come a time when we would have to go to the 6 defendants and invite them to come forward with other portions 7 of the order. 8 Unfortunately, the way the different parties construed 9 the order differently, the way the different parties viewed the 10 facts and the way things were proceeding, moreover, I would 11 add, your Honor, we have -- although we had repeatedly made 12 Rule 16 disclosure requests of the defense, we never received 13 any transcripts from them as Rule 16 disclosure either, nor 14 have we received any disclosure about the presumably expert 15 translators through whom they would seek to offer their 16 transcript. So we sort of didn't see this coming the way we 17 maybe should have. We were feeling like the existence of the 18 protective order established the procedure and, obviously, 19 things have not come to pass that way. 20 For all of those reasons, just the way everyone 21 understood things differently, viewed the situation 22 differently, we are unfortunately stuck here. The government 23 is -- 24 THE COURT: I told you that I would see that neither 25 side is disadvantaged. And I'll talk to you more about it, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4345 47QMSAT5 1 I will -- what is the adjournment you're seeking that I give to 2 the jury? 3 MS. BAKER: Your Honor, given the very large number of 4 pages of transcript encompassed by the prison visits and the 5 prison calls, reluctantly, we ask for a two-week adjournment. 6 We don't believe -- as I'm sure your Honor is aware, every 7 minute that we are not in court we are working on other aspects 8 of the case. And so it is not that the decks were cleared to 9 deal with this issue. We need to deal with these issues, the 10 rule of completeness issues and the translation issues, on top 11 of everything else that was already ongoing. And in light of 12 the very large volume of pages, we are concerned that it is not 13 possible for us to have these issues resolved in less than that 14 period of time; Essentially, the 14-day window that the 15 protective order would have provided for. 16 THE COURT: But you could use part of that time 17 because there was the elimination of Sheikh Rahman's privilege. 18 MS. BAKER: Your Honor, this is the way that the 19 government and the Court views the protective order 20 differently. Although the protective order does explicitly 21 provide a seven-day window for Abdel Rahman to make his 22 objections, in the government's view, that was essentially 23 independent of but operating during an overlapping time period, 24 as the 14 days that the protective order afforded the 25 government to receive for the first time ever and assess the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4346 47QMSAT5 1 content of those other portions of the visits and calls to 2 determine what our position is under the rule of completeness 3 with each -- with respect to each of the portions, and to have 4 translations of them, if necessary, prepared, which is now 5 where we find ourselves. 6 THE COURT: None of that is set out in the protective 7 order. 8 MS. BAKER: I agree, your Honor, it is not spelled out 9 in the protective order. I can only tell your Honor that we 10 before preparing the protective order and asking ourselves what 11 are the time periods that we put in here, we had in mind the 12 14-day period because of our concern that given the volume of 13 the material and given the fact that it is in Arabic and given 14 the fact that the translator resources available to us are not 15 limitless, we believed that a window of that duration would be 16 necessary for us to be ready when the day would come to meet in 17 court whatever the defendants were offering of that redacted 18 content. 19 Part of what we would hope to accomplish during the 20 period of the adjournment is, as Mr. Ruhnke alluded to earlier, 21 to engage in a back and forth with the defense and to try to 22 resolve some of the rule of completeness issues so that the 23 Court doesn't need to rule on every portion that was not in the 24 government's transcript but that is another portion that the 25 defense is seeking to offer. We would hope that part of what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4347 47QMSAT5 1 we would accomplish during the period of time would be agreeing 2 on a number of portions. And then the Court would only have to 3 rule on those portions as to which there continues to be 4 dispute. 5 So really the period of time is for the lawyers to 6 review the transcripts working from the defendants' versions, 7 essentially, and try to engage in that sort of a process while, 8 at the same time, the government's translators getting ready a 9 government transcript of any additional portions that end up 10 being added in, whether by consent or by ruling from the Court. 11 THE COURT: It is not clear to me why a full two weeks 12 is necessary to essentially adjourn the case for two weeks when 13 the first prison visit would come chronological -- refresh my 14 recollection, is one day or two days -- 15 MS. BAKER: Your Honor is correct that the first visit 16 is one day. And I realize your Honor is thinking, then we 17 could continue dealing with the additional material as we move 18 forward. There are not many calls in between the February 2000 19 visit and the June 2000 visit, and so we don't believe that it 20 would take us very long to get from that initial one-day visit 21 to the next visit, which is two days. And then there is a much 22 greater number of calls following after the June -- the May of 23 2000 visit. 24 The total number of pages at issue here, your Honor, 25 just based on the defendants' pagination, the prison visits, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4348 47QMSAT5 1 the defense versions of them, are 816 pages. Those are very 2 dense pages that they have used sort of a small font. The 3 prison calls -- again, it is approximately 60 calls which the 4 government hopes -- 52 calls. It is not the government's 5 intention to offer anywhere near that number, but needing to 6 review them to negotiate with the defendants on rule of 7 completeness issues. The prison calls, the 52 of them so far, 8 are a total of almost 1300 pages. And the Yousry notebooks are 9 just under a thousand pages. 10 I don't know as I stand here now the percentage of 11 that content which is new to the government because I really 12 don't know the percentage of any visit or call or the 13 percentage of the Yousry notebooks that were removed in the 14 minimizing or redacting, but it would not surprise me if it 15 were 50 percent. I think at least in certain instances it 16 could well be 50 percent. There is a very significant amount 17 of new content that we are now trying to deal with for the 18 first time. 19 THE COURT: I come back to my question whether it is 20 necessary to take -- grant retroactively Mr. Ruhnke's original 21 request. I'm talking about for his two-week adjournment. 22 That's my question. I rely on the good faith of the parties 23 whether this cannot be done more quickly than taking off almost 24 two full weeks with the jury. 25 MS. BAKER: Your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4349 47QMSAT5 1 THE COURT: Seven days. 2 MS. BAKER: Your Honor, the government is not happy 3 about having to take any time off. Obviously, we view it as 4 detrimental to the jury's understanding of our case to have an 5 interruption in the flow of our evidence. We are concerned 6 that by the time the jury returns they will have forgotten much 7 of the evidence that they have heard up to this point. So we 8 are not in any way desirous of an adjournment of any length 9 greater than what we truly think or fear is necessary under the 10 circumstances due to the volume of material and the translator 11 resources that the government has available to draw upon to 12 accomplish this task. 13 And we only have -- we think we have about one day's 14 worth of regular calls that occur between the February 2000 15 visit and the May 2000 visit. So really those two visits 16 really follow almost with a second on the heels of the first. 17 So it really is necessary in order for the government to 18 achieve the chronological presentation of the recorded evidence 19 to really have three days' worth of visits essentially ready to 20 go at the same time. 21 And then, as we discussed earlier, the prison calls 22 start occurring right at that time as well, so we really need 23 to make a determination and try to see if we can come to any 24 agreement with the defense as to which calls will be used and 25 whether such calls are used in their entireties or only in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4350 47QMSAT5 1 part. 2 And so reluctantly we ask for the amount of time that 3 we believe is necessary just to deal with the volume of the 4 material. 5 THE COURT: Mr. Ruhnke. 6 MR. RUHNKE: Your Honor, I don't know what resources 7 the government does have available. I will say that it is a 8 large task. Although, again, it was my understanding that the 9 government's wall team has preliminary transcripts and 10 translations of all of these materials. Maybe I'm factually 11 wrong about that. From what I'm able to glean from what the 12 government has said about this, it is not as if they are 13 starting from scratch. The wall team has draft transcripts 14 which have actually been provided to us which are not grossly 15 deviant from the transcripts we have. There are some 16 differences, but it is not like the government gave us 17 transcripts that we looked at and said this isn't even close 18 and they have had those forever. Having said that, I will 19 defer to the government's good faith in representing to the 20 Court that that is the time they need. 21 MS. BAKER: Your Honor, as I had explained last week, 22 there is a very early draft of the entirety of each visit and 23 each call. But as your Honor heard from the testimony of 24 Mr. Herold, the audio was subsequently enhanced. I don't know 25 as I stand here now whether the full-length transcript was done SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4351 47QMSAT5 1 from the enhanced audio. And even if it was, the transcripts 2 have been -- the portions that were in that the government 3 believed it was going to be using at trial have been revised 4 more than once since the initial draft transcript. And I'm 5 sure your Honor knows from testimony in this case or prior 6 cases involving recorded conversations, a good transcript 7 requires the person making it, whether it is English 8 transcripts or whether it is translation from another language, 9 the person making the transcript really has to go over and over 10 the recordings several times to produce a transcript that is 11 really complete and accurate. And so although there is 12 something of a draft, we have taken that into consideration in 13 coming up with this estimate and arriving at the length of the 14 adjournment that we are requesting. 15 THE COURT: It is not my practice to remonstrate with 16 the parties over matters like this. Both sides say that there 17 was a miscommunication as to when the notice by the defendants 18 have to be given and when the government had to come forward 19 and when the issues, to the extent there were issues, had to be 20 resolved by the Court. I'll accept that. It is also 21 represented that an adjournment will be useful to perhaps 22 resolve some of these issues and will, in any event, make the 23 chronology of the case from the government's standpoint more 24 understandable. 25 In turn, I really expect that by granting the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4352 47QMSAT5 1 adjournment the government will look at the rest of the case 2 with a view toward pruning to assure that all of the estimates 3 originally given to the jury were correct with respect to the 4 length of the case. The government now estimates that the rest 5 of the case should take about five more weeks. And the 6 government should explore whether on other evidence the case 7 can be presented more efficiently to the jury to assure that 8 all of the original time limits are adhered to. The parties 9 have cooperated a reasonable amount in terms of working out in 10 the interests of all of their clients stipulations to assure 11 that the case could be efficiently presented and there is no 12 reason why that couldn't continue. 13 Let me ask, hearing the time limits, do the defendants 14 want to tell me anything with respect to the length of time of 15 the case? I gave the estimate of four to six months after 16 listening to all of the parties. And if I tell the jury when 17 they come back that we are taking a mid-session adjournment, 18 which they can use, I should tell them, as I would hope to tell 19 them, that the case remains on schedule and that I hope they 20 enjoy their adjournment, and that the time estimate with the 21 case remain intact. You tell me whether I can tell that to the 22 jury. From what I hear from the government, I can. 23 MR. TIGAR: May we have just a moment to talk amongst 24 defense counsel, your Honor? 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4353 47QMSAT5 1 (Pause) 2 MR. TIGAR: Defense counsel conferred, your Honor, and 3 we believe that we will be on schedule so far as we are 4 concerned. I don't know what other people have to say, but in 5 terms of Ms. Stewart's case, I am perfectly happy to do this. 6 I have looked at this coming in. I'm making certain 7 assumptions about how this prison call, prison visit thing is 8 going to be resolved. Our case looks a lot skinnier than I 9 once imagined it being, just speaking for us. 10 THE COURT: I don't ask you to give -- all I want to 11 know is whether I can tell the jury. I'm not requiring you to 12 tell me how long each defendant's case will last. 13 MR. TIGAR: I understand we are not obliged to, but I 14 am perfectly happy to do it. 15 THE COURT: I'll tell the jury that because of 16 scheduling issues, after today we are going to take an 17 adjournment until Monday, August the 9th. That's about two 18 weeks. I want to assure them that the case remains on schedule 19 with the schedule that I originally gave them, that this 20 adjournment will allow the jurors to take a break. But I want 21 to emphasize to them that it is consistent with our original 22 trial schedule. And so that there is no misunderstanding, Mr. 23 Grate will call them on Friday or leave word for them on 24 Friday, August, the 6th, just to remind them that we are going 25 to start again on Monday, August 9 and give my regular SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4354 47QMSAT5 1 instructions. 2 MS. BAKER: Your Honor, I would request a small 3 modification to what your Honor proposes to tell the jury. 4 Given that it is the government's case, which the jury knows, 5 obviously, to say that it is a scheduling issue implies that 6 the government is somehow at fault, so we would ask instead 7 that you tell the jury that the adjournment is necessitated by 8 a legal issue, or something along those lines. 9 THE COURT: I'll take it on myself. I'll tell them 10 that there are various issues that the Court has to deal with 11 and that this concerns issues which have nothing to do with 12 anything that they have to decide. 13 MR. TIGAR: I was simply going to ask, though it is 14 probably unnecessary, whether the Court would give an unusually 15 strong cautionary instruction with respect to the jury, 16 provided they are not being here for that period of time, 17 including not discussing with family and the media and so on, 18 but stressing those things that appear to be of particular 19 concern with an adjournment of this length. 20 THE COURT: Yes. 21 MS. BAKER: Yes, your Honor, we agree. 22 THE COURT: Let's bring in the jury. 23 Mr. Fletcher is e-mailing Mr. Grate to give him the 24 instructions. 25 MR. BARKOW: Your Honor, before the jury comes out, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4355 47QMSAT5 1 just want to confirm on the record, I think we have what we 2 entered into as an oral stipulation because we haven't -- the 3 stipulation deviated a little bit from what we had drafted 4 ahead of time with all defendants with respect to three 5 transcripts that we may get to this afternoon. We don't have 6 it in writing, but I want to, before the jury comes out, to 7 confirm that it is correct, and then we could state it to the 8 jury rather than present it in writing. 9 And it is that with respect to Government Exhibits 10 1048X, 1050X, and 1059X, if called as witnesses at trial, FBI 11 language specialists who specialize in translation would just 12 track the normal stipulation, that for each they would testify 13 that in their expert opinion the transcripts are true and 14 accurate translations of the recordings. Since we don't have 15 it embodied in writing, I wanted to make sure that that was 16 accurate before we have the jury come out. 17 MS. SHELLOW-LAVINE: That's accurate. 18 THE COURT: Let's bring in the jury. 19 (Jury present) 20 THE COURT: Good afternoon, ladies and gentlemen. 21 Again, if there is a delay in bringing you out, I take 22 responsibility for it and I appreciate your indulgence. 23 MR. MORVILLO: May I proceed, your Honor? 24 THE COURT: Yes. 25 MR. MORVILLO: At this time the government would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4356 47QMSAT5 1 request permission to display to the jury or read to the jury 2 Government Exhibit 1045X, which is, for the record, a December 3 27, 1999 telephone conversation between Ahmed Abdel Sattar and 4 Rifa'i Ahmad Taha Musa. 5 May we ask Mr. Forkner to come forward and read the 6 portions of Mr. Sattar? 7 THE COURT: Yes. 8 MR. MORVILLO: This call is in evidence and on the 9 transcript. The call is on Government Exhibit 1000 and the 10 transcript has been previously received in evidence. 11 THE COURT: Okay. 12 MR. MORVILLO: May we proceed, your Honor? 13 THE COURT: Yes. 14 (At this point Government 1045X, in evidence, 15 displayed and played to the jury) 16 MR. BARKOW: Your Honor, at this point, we would 17 request permission to read to the jury, while publishing the 18 transcript at the same time, Government Exhibit 1046X. That is 19 a transcript of a recording Government Exhibit 1046 which is 20 already in evidence. And the transcript 1046X, is also already 21 in evidence. 22 THE COURT: All right. 23 MR. BARKOW: Your Honor, this is a call from December 24 27 of 1999 at 2:51 in the afternoon. Mr. Forkner will be 25 reading the lines of Ahmed Abdel Sattar, Mr. Morvillo will be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4357 47QMSAT5 1 reading the lines of Rifa'i Ahmad Taha Musa, and I will read 2 the lines of Salah Hashim. 3 THE COURT: All right. 4 MR. BARKOW: Your Honor, this particular excerpted 5 transcript, 1046X, because it has been excerpted, has no 6 attributions still in it to Mr. Sattar. So it will just be Mr. 7 Morvillo and myself. 8 THE COURT: All right. 9 (At this point, Government Exhibit 1046X, in evidence, 10 displayed and read to the jury). 11 MR. MORVILLO: Your Honor, at this time the government 12 would request permission to read to the jury Government Exhibit 13 1047X already in evidence. 14 THE COURT: All right. 15 MR. MORVILLO: And to publish it to the jury while we 16 read it. 17 THE COURT: Yes. 18 MR. MORVILLO: For the record, it is a December 27, 19 1999 telephone call at 3:17:11 p.m. between Mr. Sattar and 20 Rifa'i Taha. Mr. Forkner will read the attributions of 21 Mr. Sattar. 22 (At this point, Government Exhibit 1047X, in evidence, 23 displayed and read to the jury) 24 MR. TIGAR: Your Honor, may I step out for just a 25 moment? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4358 47QMSAT5 1 THE COURT: Sure. 2 Actually, we are at about 3:45. We will take a 3 10-minute break. 4 Please remember my continuing instructions, ladies and 5 gentlemen. Don't talk about the case. Keep an open mind. 6 All rise, please, and please follow Mr. Fletcher to 7 the jury room. 8 (Jury not present) 9 THE COURT: See you shortly. 10 (Recess) 11 (Jury not present) 12 THE COURT: Let's bring in the jury. 13 (Jury present). 14 THE COURT: Mr. Barkow. 15 MR. BARKOW: Your Honor, at this point I would like to 16 state an oral stipulation that the parties have agreed to. 17 THE COURT: All right. 18 MR. BARKOW: The parties stipulate and agree that if 19 called as a witness at trial, Victoria Benjamin would testify 20 as an expert witness in the area of Arabic to English 21 translation, that she is employed as a language specialist by 22 the Federal Bureau of Investigation specializing in translating 23 English to Arabic and Arabic to English, that she prepared 24 English transcripts of audio recordings on Government Exhibits 25 1000, 1300 and 1301, and that the following three transcripts SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4359 47QMSAT5 1 in her expert opinion are true and accurate translations into 2 English of the spoken Arabic contained on the corresponding 3 audio files on Government Exhibits 1000, 1300 and 1301, and 4 that is Government Exhibits 1048T, 1050T, and 1059T. 5 And that in her preparation of these three transcripts 6 Ms. Benjamin employed the same formatting and style that she 7 had used in previous transcripts, including the same headers 8 and abbreviations, the type setting of Koranic verses in 9 italics, the underscoring of words spoken in English when the 10 call was primarily in Arabic, and the underscoring of words 11 spoken in Arabic when the call was primarily in English. 12 Based on that stipulation, your Honor, the government 13 offers into evidence Government Exhibits 1048X, 1050X, and 14 1059X. The first two are transcripts of recordings on 15 Government Exhibit 1300 and the last, 1059X, is a transcript of 16 the recording on Government Exhibit 1301. And all of the 17 recordings are already in evidence. 18 THE COURT: Government Exhibits 1048X, 1050X, and 19 1059X received in evidence. 20 (Government's Exhibits 1048X, 1050X, and 1059X 21 received in evidence) 22 MS. BAKER: Your Honor, at this time we would ask to 23 present Government Exhibit 1048, which is the call, by playing 24 a portion of it. It is an Arabic language call. And while we 25 play it, by displaying the header of the corresponding SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4360 47QMSAT5 1 transcript which is Government Exhibit 1048X. After playing a 2 portion of it, we would ask then to read Government Exhibit 3 1048X with Mr. Forkner reading the lines attributed to 4 Mr. Sattar and with me reading the lines attributed to the 5 other participant whose name is Fawzi. 6 If we might have Mr. Forkner come forward and if you 7 would ask the jurors to put on their headphones, and if we 8 might display Government Exhibit 1048X. 9 THE COURT: Ladies and gentlemen, put on the 10 headphones, turn them on. 11 (At this point, Government Exhibit 1048X, in evidence, 12 read to the jury). 13 THE COURT: Ladies and gentlemen, you can take off the 14 headphones. Make sure you turn them off. 15 MS. BAKER: This is a call on January 5 of 2000 at 16 13:14:42. The participants are Ahmed Abdel Sattar, and Fawzi. 17 (At this point, Government Exhibit 1048X, in evidence, 18 displayed and read to the jury) 19 MR. MORVILLO: Your Honor, at this time the government 20 would request permission to play -- to read for the jury and 21 display for the jury Government Exhibit 1049X already in 22 evidence. 23 THE COURT: Yes. 24 MR. MORVILLO: For the record, it is a January 15, 25 2000 telephone call between Ahmed Abdel Sattar and Rifa'i Ahmad SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4361 47QMSAT5 1 Taha Musa. Mr. Forkner will read the attributions for 2 Mr. Sattar. 3 (At this point, Government Exhibit 1049X, in evidence, 4 displayed and read to the jury) 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4362 47QLSAT6 1 THE COURT: All right. We will break for today. 2 Ladies and gentlemen, some announcements: 3 There are some issues that the Court has to deal with. 4 These concern legal issues that have nothing to do with 5 anything that you all are concerned with at the trial, but in 6 order for the Court to deal with those issues, I'm going to 7 take an adjournment for not quite two weeks, so you will have 8 that opportunity to go about your regular pursuits or take a 9 holiday, as you will. We are going to adjourn until Monday, 10 August 9th. That's about two weeks. And I should assure you 11 that and I do assure you that the case remains on schedule with 12 the schedule that I originally gave you, and so this two-week 13 adjournment for you will not affect the schedule that I 14 originally gave you for the case. And, as I say, this is 15 consistent with the original trial schedule. Because it's 16 longer than usual in the course of this trial, I've also -- 17 will ask and Mr. Fletcher will ask Mr. Grate, the jury 18 administrator, to contact you on Friday, August 6th to leave a 19 telephone message with you just to remind you to be back here 20 promptly on Monday, August the 9th. So we will resume promptly 21 on Monday, August the 9th at 9:30 a.m. 22 Now, because we're taking this adjournment, I want to 23 reemphasize my continuing instructions to you, and I 24 reemphasize this with all of the force that my words can 25 convey. It is very important that you continue to follow my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4363 47QLSAT6 1 continuing instructions. Please, please, don't talk about this 2 case at all. Don't talk about it among yourselves or with 3 anyone when you go home, not today or tomorrow or for this 4 period. Indeed, not until you go to the jury room to begin 5 deliberations with your fellow jurors. So don't talk about 6 this case or anything to do with it. 7 Second, remember not to look at or listen to anything 8 to do with the case. And so, if for any reason you see or hear 9 something to do with the case, simply turn away. As I told you 10 at length at the beginning of the trial, you are in the 11 position to hear everything that is relevant to your 12 consideration as jurors. You hear it all here in the 13 courtroom. You hear all of the evidence, and so it's very 14 important not to look at or listen to anything to do with the 15 case. And if you should see or hear something, simply turn 16 away. 17 And finally, as I always tell you, it is very 18 important, and I continue to instruct you: Please, keep an 19 open mind until you've heard all of the evidence, I've 20 instructed you on the law, and you've gone to the jury room to 21 begin your deliberations. Fairness and justice to the parties 22 requires that you do that. 23 With that, have a very good break, and I look forward 24 to seeing you on Monday, August the 9th. 25 All rise, please? Please follow Mr. Fletcher to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4364 47QLSAT6 1 jury room. 2 (Jury exits the courtroom) 3 (Continued on next page) 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 4365 47QLSAT6 1 (In open court; jury not present) 2 THE COURT: All right. Please be seated, all. There 3 are several subjects. First, with respect to the schedule, the 4 issue in my mind is what I should do to assure that the parties 5 remain on schedule and use this period of time to work out the 6 issues among you, and that if there are any issues to be 7 brought to my attention that I have to decide, they're brought 8 to my attention sufficiently in advance that I can decide them 9 without delaying anyone. 10 MS. BAKER: Your Honor, may I have a minute to confer 11 with cocounsel? 12 THE COURT: Sure. 13 (Off the record) 14 MS. BAKER: Your Honor, we believe that by Wednesday 15 we will be able to advise the defendants of our position on the 16 portions of the first two prison visits -- that's February, 17 2000, and May, 2000 -- that is, to advise the defendants which 18 portions that they are seeking to offer we believe are 19 objectionable notwithstanding the rule of completeness. And 20 then the next day for the third prison visit, the one in July 21 of 2001. And then we will address the prison calls as soon as 22 possible thereafter. But we will get our position out as to 23 the first two prison visits and then we can see whether we can 24 resolve the issues with the defendants. 25 MR. RUHNKE: Just on the defense side, we'd had a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4366 47QLSAT6 1 conversation earlier today about what's the -- I think 2 Mr. Forkner can get off the witness stand. 3 THE COURT: I'm sorry, please. 4 MR. FORKNER: Thank you. 5 MR. RUHNKE: You looked a little anxious sitting 6 there. 7 To make this process as easy as possible, the 8 government had asked us to designate someone from the defense 9 basically be the spokesperson or point person of the defense, 10 and I've generally agreed to do that. So the government 11 doesn't have to worry about running objections by three 12 different defense teams. So that I will serve as the point 13 person on this and have authority to speak for the other 14 defendants on these issues. 15 What the government proposes seems reasonable. If 16 they get to us their designations, what they believe is 17 objectionable, by Wednesday or Thursday, we'll try to negotiate 18 what we can negotiate, and if it seems fair to your Honor, 19 could we bring any disputes to your Honor by Wednesday of next 20 week? Or do you think that may not be enough time? 21 Obviously, it depends on how many disputes there are. 22 But that was our thought process. 23 THE COURT: My concern is that the testimony was that 24 it might take a week if a redacted version of the tape had to 25 be prepared. It's not a problem if the full tape were played SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4367 47QLSAT6 1 because -- 2 MS. BAKER: Your Honor, we are going to explore that 3 issue as well and revisit how quickly that can be done. We're 4 also going to look into the possibility that we would use the 5 full recording on the DVD, but perhaps be able to fast-forward 6 or otherwise skip over any portions that are ultimately either 7 agreed not to be used or that your Honor would ultimately rule 8 should not be used. So while we are also dealing with the 9 defendants, we will simultaneously explore all the different 10 options for ensuring that however the visits end up being 11 configured as far as the portions that are admissible, that we 12 will be prepared to present them that way promptly upon the 13 resumption of the trial. 14 THE COURT: Tuesday would be better than Wednesday of 15 next week to present anything to me on the first two, the 16 February and May; and Wednesday for the following, for the 17 July, 2001. 18 MS. BAKER: Actually, your Honor, now that I'm 19 thinking about it, I might suggest, maybe we should all agree 20 to adhere to that schedule we just discussed regarding the 21 first two visits, and as to the third visit, which doesn't 22 occur until July of 2001, given that the government will resume 23 presenting its case chronologically, it may be that it will be 24 more urgent to deal with some prison visits next -- sorry, some 25 prison calls next after the first two prison visits, and hold SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4368 47QLSAT6 1 off on dealing with the July, 2001 prison visit. So I would 2 ask the Court's indulgence a little bit. I don't even have the 3 list of prison calls in front of me at the moment to know which 4 ones the government was considering. But we may ask the 5 defense to turn next in our dialogue to some prison calls 6 rather than turning immediately to the third visit. 7 MR. RUHNKE: If the government's case is going to 8 proceed chronologically, that would certainly be the most 9 efficient way to present the disputed items. 10 THE COURT: The first group, if I have to resolve this 11 next Tuesday, and the second group by next Wednesday. All 12 right. 13 The defense sent me a letter today, counsel for 14 Ms. Stewart, about a request for production of a videotape of 15 Sheikh Abdel Rahman. 16 MR. MORVILLO: Your Honor, the reason we haven't 17 responded yet is because we don't have an answer yet. We're 18 looking into it, and if we find out that there is a tape, then 19 we'll make appropriate objections or -- if we find out there is 20 no such tape or that there was and it no longer exists or we 21 don't have custody of it, we'll respond that way. 22 My understanding also is that both Springfield and 23 Rochester were served with very, very broad subpoenas that 24 would call for this videotape, if it were in the possession of 25 any of those two institutions. So both facilities are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4369 47QLSAT6 1 undertaking a review. 2 But this is not something that can be done very 3 quickly. We're moving forward with it, but we just don't have 4 an answer to that. 5 MR. TIGAR: Your Honor, I appreciate Mr. Morvillo's 6 adding to this. Our information is that during the prison 7 conditions litigation, which was filed in Springfield, Missouri 8 by Mr. Clark, that the government said there was a tape, and 9 that it showed conduct by a prison official that led to some 10 discussions and disciplining that official and so on. That 11 case in Springfield was then mooted out when the sheikh was 12 transferred to Rochester because then he had to start all over 13 again with the administrative process, and since he's blind, he 14 couldn't fill out the forms himself. So they were unable to 15 pursue it. 16 But the basis for our request to you is that we 17 actually have those subpoenas pending, but given the fact that 18 as the Court is aware from the testimony there was litigation, 19 that evidence might have been moved out of the BOP and into the 20 civil division or some other part of the DOJ. 21 THE COURT: Okay. Government? 22 MR. MORVILLO: I'm now confused as to what videotape 23 they're looking for. 24 THE COURT: It's the -- 25 MR. MORVILLO: A videotape of Abdel Rahman, quote, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4370 47QLSAT6 1 "hurting himself to make his condition look worse"? 2 THE COURT: Yes. 3 MR. MORVILLO: Is what he said here, but that doesn't 4 sound like what Mr. Tigar's referring to. 5 MR. TIGAR: I'm sorry for any confusion. I have 6 talked to Mr. Clark about this in an effort to find out what 7 this is about. Mr. Clark says that he was told at various 8 times that there were videotapes of events in the prison around 9 this issue. Now, if there's more than one, well, there's more 10 than one. But -- 11 THE COURT: But the subject is his trying to hurt 12 himself? 13 MR. TIGAR: That specific tape is the one in which 14 we're interested. As I say, the dispute was: Was he harmed? 15 And in that connection, there were representations about that 16 situation that were made to Mr. Clark. And as you'll recall, 17 Mr. Fitzgerald testified about it on direct. I'm sorry for the 18 confusion, but Mr. Clark's recollection of these events, you 19 know, is dimmed with the passage of time. 20 THE COURT: All right. The government should make 21 inquiry. 22 MR. MORVILLO: As we will, your Honor. 23 THE COURT: The next issue is there were documents 24 that were raised in the correspondence, 2014, 2016, 2059, 2060, 25 2060B, which were indicated to be dealt with this week. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4371 47QLSAT6 1 the request by the parties to be heard on these issues. 2 First is Government Exhibit 2014, and all of these 3 were search documents from the search of Mr. Sattar's premises. 4 What would the parties like to tell me about 2014? I 5 have an observation on 2014 which I will set out for you before 6 you can deal generally with the -- with 2014. And that is that 7 it is -- the parties would have to address in greater detail 8 for me, at least the government would, why the statements in 9 the letter are in furtherance of the Count 1 conspiracy rather 10 than allegedly in furtherance of the Count 2 conspiracy. The 11 statements in the letter really appear, and the parties can 12 correct me if I'm wrong, to go more to the allegations in the 13 indictment at Pages 27 and 28. The argument is made that they 14 really -- the letter really relates to the ghost-written fatwa, 15 and the connection between the ghost-written fatwa and the -- 16 searching for approval of Sheikh Rahman with respect to the 17 ghost-written fatwa. However, that would have to be explained 18 to me in greater detail with reference to the individual 19 statements in the letter itself. 20 There is -- you know, plainly, if this were a letter 21 in furtherance of the Count 2 conspiracy, the -- it would 22 appear to me that the appropriate limiting instruction with 23 respect to this letter is that the letter is offered solely 24 against Mr. Sattar for -- and it's offered for his knowledge 25 intent and state of mind. And it's offered subject to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4372 47QLSAT6 1 connection against Mr. Sattar for the truth of any of the 2 contents of the letter. 3 While we're on this, I read the correspondence with 4 great care, and the rhetoric on both sides was not all that 5 helpful to me. I won't go through all of the rhetorical 6 flourishes on both sides, but they really -- rhetoric is not 7 helpful to me. 8 MR. BARKOW: Your Honor, the letter we wrote about 9 Count 1 on this theory, which is that, as the Court knows, the 10 ghost-written fatwa is included in the allegations, the overt 11 acts in furtherance of Count 1, and it fits into Count 1 in 12 significant part because after it's issued in Abdel Rahman's 13 name, Abdel Rahman essentially adopts it, because he 14 essentially tells -- he communicates to Mr. Yousry who tells 15 Ms. Stewart that he does not want the ghost-written fatwa to be 16 disavowed. 17 THE COURT: Yes, it said that. 18 MR. BARKOW: Okay. So the fatwa itself was adopted by 19 him, and his communications about it are in contravention of 20 the SAMs. 21 THE COURT: No, I understand all that. And then I was 22 trying to put that together with the individual statements in 23 the letter, and with -- 24 MR. BARKOW: I guess the individual statements in the 25 letter, I could go sentence-by-sentence, but in essence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4373 47QLSAT6 1 they -- what this letter does is it recounts the story of what 2 happened and what led up to Atia's death, and in the midst of 3 recounting that story -- this is the second paragraph -- we 4 initiated contact with those brothers after a long separation 5 that lasted for a few years. After the effect of Luxor, they 6 in turn contacted Ahmed Abdel Sattar requesting him, etc. So 7 it's recounting at that point kind of the facts underlying the 8 events of Atia's death and led up to Atia's death. 9 THE COURT: All of which is discussed in Count 2 of 10 the indictment. 11 MR. BARKOW: Correct. I think I see the Court's 12 question. The connection to Atia is that this communication, 13 the ghost-written fatwa, was sought to be communicated to Atia. 14 THE COURT: Where is the ghost-written fatwa discussed 15 in the letter? 16 MR. BARKOW: I'm skimming through it right now, your 17 Honor. I don't think it actually is, your Honor. What is 18 discussed is the facts surrounding Atia's death and the 19 allegations made against Mr. Sattar that he was to blame for 20 that because he put Atia and Taha in contact, and then there 21 are telephone calls where those allegations against Mr. Sattar 22 are discussed and where he himself discusses them and denies 23 them or expresses dismay at the fact that maybe he did do 24 things that led to Atia's death. And this letter is recounting 25 really the facts surrounding that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4374 47QLSAT6 1 THE COURT: Right. It relates to the facts 2 surrounding Atia's death, and the statement in the letter, the 3 statement in the letter, the July 23rd, 2004 letter, explaining 4 this letter, why it's in furtherance of Count 1, why it's in 5 furtherance of Count 1, Count 2, Count 3, 4, 5, says that the 6 letter relates to information between coconspirators regarding 7 how the conspiracy has and will capitalize on the violation of 8 the SAMs, i.e., and the fact that Abdel Rahman would and did 9 withdraw his support for the cease-fire; and the fact that the 10 ghost-written fatwa was issued in Abdel Rahman's name; and on 11 the fact that Abdel Rahman approved the fatwa after its issue, 12 after its issuance. 13 And I'm -- when I look at the letter itself, I was 14 attempting to place those representations next to the letter. 15 MR. BARKOW: I see. I think that the representations 16 do not state what is in the letter. The Court sees that. What 17 it attempts to state is that it enplaces the letter in context 18 and how the letter relays information from Mustafa Hamza 19 regarding these events. So it's relating information from 20 Mustafa Hamzi about the Atia incident. And the Atia incident 21 is an example of how Mr. Sattar and his coconspirators -- Atia 22 is an example of how Mr. Sattar and his coconspirators 23 attempted to capitalize on the withdrawal of support from the 24 cease-fire, which was in some ways the essence of the SAMs 25 violation. They communicated Abdel Rahman's support for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4375 47QLSAT6 1 cease-fire. And by using that kind of SAMs violation pipeline 2 and getting Abdel Rachman's blessing at the end of the 3 cease-fire, they then were free to communicate to Atia the 4 ghost-written fatwa in Abdel Rahman's name to urge Atia to take 5 action as they were proposing. 6 And they were able to do that, in part, in Abdel 7 Rahman's name, because Abdel Rahman had just a few months 8 earlier through them withdrawn his support for the cease-fire. 9 So Abdel Rahman had advocated violence by his withdrawal of 10 support for the cease-fire. And a few months later, 11 capitalizing on this communication of Abdel Rahman's wishes, 12 the ghost-written fatwa was penned and attempted to be 13 disseminated. 14 So that's -- it's -- 15 THE COURT: Is don't see anything in the letter that 16 refers to the ghost-written fatwa. 17 MR. BARKOW: No, your Honor. The content of the 18 letter tracked the factual events surrounding Atia. And so 19 it's the theory on which we argue that this is a statement by a 20 coconspirator is that it relates information between 21 coconspirators that it relates information between 22 coconspirators, about the conspiracy, about the fruits of the 23 conspiracy. About the fact that the communications pipeline is 24 open, so to speak. And so it's relaying information between 25 coconspirators to capitalize on the fruits of the SAMs SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4376 47QLSAT6 1 violation. It's not meant -- it doesn't further the conspiracy 2 in the sense that it directed someone to go do something or it 3 tells someone a plan of action or a plan of attack. But it is 4 in furtherance of the conspiracy under the Rivera case in a 5 sense where it's providing information between coconspirators, 6 although not directly furthering the conspiracy. Or under the 7 Amato case, where it's informing other coconspirators about the 8 status of the conspiracy, the communications pipeline between 9 Abdel Rahman on the one hand and Atia on the other hand, as 10 written in the ghost-written fatwa by Mr. Sattar and Taha and 11 subsequently adopted by Abdel Rahman. 12 THE COURT: Oh. Where in the letter is there a 13 discussion of the seeking or advising any of the alleged 14 coconspirators about any contacts with Sheikh Rahman or the 15 results of the contact with Sheikh Rahman? 16 MR. BARKOW: The references are indirect, your Honor, 17 I think, but I would point to -- for example, I would point to 18 the third paragraph where it speaks of the link with Abu Yassir 19 and continued attempt to have the issue of the initiative fail. 20 So basically, when speaking about Taha's efforts to end the 21 cease-fire, the letter states that Sattar notified Abu Yassir 22 or Taha of the brothers' phone calls. 23 And so, what that is saying essentially is that after 24 the conflict over the cease-fire and Taha's efforts to end the 25 cease-fire escalated and Taha continued -- we made these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4377 47QLSAT6 1 efforts. Mr. Sattar told Taha about the telephone calls that 2 Sattar had received from Atia and his associates. And so it's 3 connected to the withdrawal of the support for the cease-fire 4 in another way because Sattar and Taha were proponents of 5 ending the cease-fire. 6 So that's an indirect way, referring to Abdel Rahman's 7 withdrawal of support, because that was the whole point for 8 Taha to send the messages through Mr. Sattar. 9 Another would be where the writer speaks of Atia -- 10 this is the end of the first page overlapping to the second 11 page -- the writer talks about how Atia had expressed some 12 commitment to the cease-fire and some support for the 13 cease-fire. And so that places in context the efforts of 14 Mr. Sattar and Taha to communicate to Atia the withdrawal of 15 support for that cease-fire. 16 So, again, the references are indirect. It's more of 17 a capitalization on the opening of this communications pipeline 18 and a relaying of information between people that capitalizes 19 on the existence of the opening in this communication. 20 I guess another example might be at the bottom of 21 Page 2, the last paragraph, where it's speaking about how Atia 22 said that Taha contacted him and tried to convince him, that 23 is, Atia, of some operations. And then recounts again Atia's 24 belief that the initiative is a good thing. And then he talks 25 about how Taha tried to warn him and tell him he could send him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4378 47QLSAT6 1 the money they needed to help in the operation. So it's 2 basically relaying information about this debate among these 3 people about whether the cease-fire is a good thing or a bad 4 thing. Even though there are two sides to this debate, they're 5 seeking to have Abdel Rahman put his voice into the debate and 6 resolve the dispute. 7 THE COURT: Where is -- 8 MR. BARKOW: That is not in the letter. I'm giving 9 context to the Court. That's the point of sending -- one of 10 the points of sending these communications in to Abdel Rahman 11 is to get him to side with the Taha side that doesn't want the 12 cease-fire to continue. And this letter is talking about 13 the -- and this is in the letter, at the bottom of Page 2, the 14 disagreement between -- in some senses, and at a theoretical 15 level, between Taha and Atia over the cease-fire. 16 MR. RUHNKE: Can I say something, very briefly? The 17 letter reflects that only Stewart objects to this evidence, and 18 that's stated all the way through. 19 THE COURT: I take it that the objection by 20 Ms. Stewart is also on behalf of Mr. Yousry. 21 MR. RUHNKE: Thank you, your Honor. 22 THE COURT: I will -- 23 MR. BARKOW: Your Honor, I'd like to just make one 24 additional point: The Court had said at the beginning of its 25 remarks that if the Court were to receive this as a statement SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4379 47QLSAT6 1 in furtherance of the Count 2 conspiracy, the Court made a 2 statement about the type of limiting instruction the Court 3 might get, and if in the end the Court were to admit this 4 statement as applying to Count 2 rather than the Count 1 5 conspiracy, we'd ask that that proposed instruction be modified 6 slightly along the lines of -- we've discussed this before with 7 respect to other exhibits; I can't remember precisely which 8 ones right now -- but in the sense that Count 2 -- that the 9 Court could instruct that the evidence is relevant to or 10 offered to prove Count 2. And state it affirmatively rather 11 than saying it is only offered with respect to Mr. Sattar and 12 not others. 13 Again, this rests on the notion that Count 2 is a 14 predicate for Counts 4 and 5. 15 So we'd request that the Court just state that 16 affirmatively. We've talked about that before, so.... 17 THE COURT: But the distinction that I have always 18 drawn, unless the parties brief it and explain to me why it is 19 not the proper distinction, from the very first time that this 20 was raised, is, Yes, evidence with respect to the Count 2 21 conspiracy is relevant to all of the defendants, because even 22 if there were a trial solely of Ms. Stewart and Mr. Yousry, 23 evidence with respect to the Count 2 conspiracy would come in 24 because the Count 2 conspiracy is directly relevant to Counts 4 25 and 5. So the conspiracy to provide material assistance as to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4380 47QLSAT6 1 the Count 2 provision, the provision of the material assistance 2 as to the Count 2 conspiracy. 3 There is a second issue, which is the hearsay issue 4 which is -- which is statements that are allegedly 5 coconspirator statements. Can you use them for the truth of 6 what's said against a person who is not alleged to be a 7 coconspirator in that conspiracy? And what I've always said to 8 that is: No, not for the truth. Now, there may be another 9 conspiracy, joint venture, you've offered for the truth against 10 other defendants. But that has to be specifically argued and 11 the context explained. 12 And so the limiting instruction on this is if it is a 13 statement in furtherance of the Count 2 conspiracy, is that 14 it's offered -- which is -- it's offered solely against 15 Mr. Sattar for his knowledge, intent and state of mind. And 16 subject to connection against Mr. Sattar for the truth of 17 what's stated. 18 MR. BARKOW: May I have just a moment, your Honor? 19 (Off the record) 20 MR. BARKOW: Your Honor, I guess the difference that 21 we're drawing -- it's somewhat semantic, but it seems to us a 22 distinction with a difference, and it is that since Count 2 23 inter -- I guess is interconnected with Counts 4 and 5, it 24 seems that if there's two different ways to phrase it, one is 25 that the evidence is offered to prove Count 2, and the other is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4381 47QLSAT6 1 to say that it's offered against a particular person. I guess 2 the one way is with respect to counts and the other is with 3 respect to particular defendants. 4 THE COURT: No. It can be phrased -- it can be 5 phrased any one of several different ways. But the distinction 6 is with respect to whether it's offered for the truth of 7 anything that's said. And if offered for the truth, then it 8 can only be offered for the truth against a person who is an 9 alleged coconspirator in that conspiracy or joint venture of 10 which the declarant and the person against whom its offered are 11 members, because it's -- the theory is an agency theory. So 12 there is no -- and I've made the point to you, I've made it to 13 Mr. Ruhnke -- evidence with respect to the Count 2 conspiracy 14 is relevant to Counts 4 and 5, and there is lots of evidence 15 with respect to Count 2 that's relevant to Counts 4 and 5. And 16 just because it's relevant to Count 2 doesn't mean at the end 17 of the day that the jury cannot consider it with respect to 18 Counts 4 and 5 because when they're considering Counts 4 and 5, 19 one of the things that the jury has to ask themselves with 20 respect to the elements of Counts 4 and 5 is what is the state 21 of the evidence with respect to the Count 2 conspiracy? And 22 that was the point I made to both you and Mr. Ruhnke about if 23 there were a trial of Ms. Stewart and Mr. Yousry at a severed 24 trial, that is a different question from the issue of hearsay 25 and whether a statement is offered for the truth of what's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4382 47QLSAT6 1 said. And that's why I was suggesting the "subject to 2 connection". But it's subject to connection for the truth with 3 respect to Mr. Sattar, if it's a statement in furtherance of 4 the Count 2 conspiracy. 5 And you can come up with various formulations about 6 whether it's -- what it's being considered for or not being 7 considered for, and the parties have suggested limiting 8 instructions to me which I have in almost all cases followed. 9 So that's sort of one set of issues: The appropriate 10 instruction about what this can be considered evidence for. 11 The second issue is the hearsay question of whether it 12 can be considered for the truth. And that is the reason why if 13 it's a statement in furtherance of the Count 1 conspiracy, it's 14 different from whether it's a statement in furtherance of the 15 Count 2 conspiracy. When there is an objection raised with 16 respect to hearsay, many statements are not offered for the 17 truth. They have independent evidentiary significance 18 irrespective of the truth of what's said. And when the 19 government has said, We're not offering this for the truth and 20 it's relevant to the Count 2 conspiracy, then there's no issue 21 of hearsay and -- relevant to the Count 2 conspiracy, and the 22 evidence with respect to the Count 2 conspiracy is relevant to 23 the Counts 4 and 5 conspiracy. 24 We're dealing here with a very narrow question, at 25 least the way in which I raised it initially, which was to find SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4383 47QLSAT6 1 out why this was, what the theory was, that this was in 2 furtherance of the Count 1 conspiracy based on the statements 3 that were made in the government's letter to me, which weren't 4 immediately apparent to me. 5 And you're certainly welcome to think about that. I 6 don't have to decide this issue immediately. 7 MR. BARKOW: Your Honor, I don't think we have much 8 more to say on this. I think the Court can rule on this. 9 THE COURT: Fine. Then, based upon what I've heard, 10 the appropriate limiting instruction would be that this was 11 a -- the government's offer has a statement in furtherance of 12 various of the conspiracies, but based on the proffers so far, 13 the -- there is a sufficient proffer that it's in furtherance 14 of the Count 2 conspiracy, and therefore, it is offered 15 against -- solely against Mr. Sattar for his knowledge, intent 16 and state of mind, and subject to connection against Mr. Sattar 17 for the truth of any statements contained in 2014. 18 That leads us to 2016. 19 MS. BAKER: Excuse me, your Honor, may I step out for 20 a moment? 21 THE COURT: Sure. Are you okay? 22 MS. BAKER: Yes, I'm fine. Thank you. 23 MR. PAUL: Your Honor, Mr. Sattar has asked if we 24 continue that we give him a break. 25 THE COURT: Oh, I'm sorry. I was only going to try to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4384 47QLSAT6 1 do the -- and we can take 10 minutes. I was going to deal with 2 2016, 2059 and 2060. We'll take 10 minutes. 3 MR. PAUL: Thank you. 4 (Recess) 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4385 47QMSAT7 1 THE COURT: That takes us to 2016. This is a 2 statement by Abu Abdallah and the government says that the 3 statement itself criticizes the cease fire. And the government 4 says that it is a statement by a coconspirator in furtherance 5 of the Count 2 conspiracy and that it shows Mr. Sattar's 6 knowledge and state of mind and, thus, proves Counts 2 and 3 7 and, thus, it is evidence with respect to Counts 2 and 3. And 8 Ms. Stewart and Mr. Yousry object on the grounds of hearsay and 9 relevance. 10 My view, just on the basis of the correspondence, is 11 that there is an insufficient proffer that the letter is a 12 statement of a coconspirator in furtherance of the Count 2 13 conspiracy but that it is relevant to Mr. Sattar's knowledge, 14 state of mind, and would be admitted solely for that purpose. 15 MR. BARKOW: We have nothing more to say on that 16 exhibit. 17 THE COURT: By the way, this is another one of those 18 statements that I asked whether it really would even be offered 19 for the truth. 20 MR. BARKOW: There are some parts, your Honor, but not 21 much that would. But they are not so important to us that we 22 would -- that we need to argue about the Court's ruling. It is 23 mostly for the purposes that the Court has admitted it for. 24 THE COURT: 2059 is three alleged letters by Omar 25 Abdel Rahman in about March 1999. And Ms. Stewart and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4386 47QMSAT7 1 Mr. Yousry object on the grounds of authenticity, relevance, 2 and hearsay. 3 And the question for the government is -- I don't have 4 the originals before me. And what's the proffer with respect 5 to authenticity? 6 MR. BARKOW: Your Honor, they would be twofold. We 7 don't contend that Abdel Rahman wrote it, but we don't know who 8 wrote it. But it is a communication by him which when placed 9 next to other evidence it becomes clear that it is -- it comes 10 from him. Whether he wrote it himself, I don't know if he is 11 capable of doing that, or whether he dictated it to someone 12 else for dissemination and through that person made the 13 communication. 14 The first prong of it is when you matched up with 15 other evidence it is authenticated by its content because the 16 subject matter it discusses is responsive, for example, to 17 inquiries made by other parties that were made to Abdel Rahman. 18 For example, the second letter -- well, the second letter is 19 addressed to Gamal Sultan and Gamal Habib. There is evidence 20 in the record in, for example, Government Exhibit 1005, the 21 telephone call, that those two people wrote to Abdel Rahman 22 seeking his view of the political party question. 23 And then this second part of this letter is a letter 24 to two brothers telling them that he doesn't agree with the 25 political party and there was a telephone call where the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4387 47QMSAT7 1 substance of that position as stated by Abdel Rahman was 2 communicated by Mr. Sattar to others. And so it is 3 authenticated as coming from Abdel Rahman by its content. In 4 fact, that same point can be made about all of these 5 communications. 6 The second authentication we make is that it was found 7 in Mr. Sattar's search. And so that lends authenticity to it 8 as well. 9 THE COURT: Based upon the proffers and my own review 10 of the text of the letters themselves -- and I am certainly 11 willing to listen to the parties, but the objection by 12 Ms. Stewart and Mr. Yousry were authenticity, relevance, and 13 hearsay -- there is no question that the letters are relevant. 14 They provide evidence of communications from Omar Abdel Rahman 15 from prison at a time and on subjects that the jury could find 16 were in violation of the restrictions that were placed on Omar 17 Abdel Rahman. And, similarly, there is no hearsay objection 18 because they would be statements by a coconspirator in 19 furtherance of the Count 1 conspiracy. 20 The content of the communications, the place where 21 they were found is sufficient authentication that they are what 22 they purport to be, reflecting communications from Abdel Rahman 23 from prison. And it is up to the jury to place these 24 communications in the context of the other evidence in the case 25 to weigh its significance, which then takes me to 2060A and B. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4388 47QMSAT7 1 These are from the correspondence that I have received 2 from the parties. These purport to be two letters addressed to 3 Sheikh Omar Abdel Rahman in Arabic which are contained in an 4 envelope addressed in English to Mr. Sattar. The letters are 5 from Said Hasabollah and Montasir Al-Zayyat. And Ms. Stewart 6 and Mr. Yousry object on the grounds of relevance and hearsay. 7 And so the first question to the government is whether they are 8 being offered for the truth of what's contained in the letters. 9 MR. BARKOW: Only with respect to a few pieces, your 10 Honor. This is really more akin to the other letters that we 11 view it as direct evidence of the conspiracy because it is in 12 fact a communication designed to go into Abdel Rahman which 13 would violate the SAMs. And so as kind of a tangible thing it 14 is evidence of a Count 1 violation, Count 1 conspiracy. There 15 are some statements in here that we might point to as offered 16 for their truth, but on the whole, these exhibits are really 17 direct evidence of the Count 1 conspiracy because they are 18 communications intended to make it into Abdel Rahman in 19 violation of the restrictions. 20 THE COURT: I looked over the letters and I couldn't 21 see -- I understand the arguments that they are alleged 22 evidence of Count 1, but I didn't see any statements that could 23 be considered for the truth. 24 MR. TIGAR: Your Honor, we withdraw our objections to 25 these exhibits. We think that a limiting instruction that they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4389 47QMSAT7 1 are not received for the truth of any factual assertions, but 2 because they represent the opinions of the speakers or for the 3 fact that they were made, something of that sort. But other 4 than that, we withdraw our objection to these exhibits. 5 MR. BARKOW: Your Honor, the only thing we would say, 6 I don't think that an instruction like that is necessary, but 7 if there is no objection to the exhibit, then -- 8 THE COURT: Well, there is no objection to the 9 exhibits as evidence. There is a request for a limiting 10 instruction that the letters are not being offered for the 11 truth of any of the matters asserted in the letters. 12 MR. BARKOW: We don't object to that instruction 13 either, your Honor. 14 THE COURT: That completes the exhibits that I was 15 asked to rule on for this week and I'll get to the other 16 exhibits now, unless you all can work out those. 17 MR. TIGAR: Your Honor, may I? I would ask for the 18 Court's guidance as to a matter. 19 The Court will recall that on July 9 and 10 the 20 parties sent correspondence relating to the authenticity issue. 21 And there were a number of items that the government was going 22 to give us. We have sent reminder letters, we have been told 23 that it is in the works. They did give us a CD or DVD of the 24 Lockheed Martin calls. But upon examination four calls are 25 missing from it. We can't do anything with the diskette until SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4390 47QMSAT7 1 we get the CoDec, the compression, decompression programs. 2 My reason for raising this and asking the Court how we 3 should deal with it is that if we don't have that material well 4 enough in advance of the time we are to begin our defense to 5 permit our folks to look at it, then I am going to be standing 6 up asking for an adjournment. And given the agreement among 7 the parties that Ms. Stewart will present her defense first, 8 subject to the Court's approval, that's something that I 9 really, really, really don't want to do. And I know that 10 Ms. Baker has been the person that's handling it, but can we 11 set a deadline? Can we ask for a report within the next 24 12 hours? Can we do something to move this off dead center? And 13 I'll file whatever your Honor wishes in the way of papers or a 14 reminder or a summary, whatever, but we really need it. 15 MR. BARKOW: Your Honor, all we can say on this is 16 that as the Court no doubt discerned, Ms. Baker is the expert 17 on all things technological for the government. And what we 18 would ask is just that we talk to Mr. Tigar informally. We 19 will relay his request on the record when we get back to 20 Ms. Baker and attempt to get back to him tonight or tomorrow in 21 answering his question. If at that point our response to him 22 is unsatisfactory, then perhaps it can be brought to your 23 Honor's attention. At this point everybody at the table here 24 can't really speak to this issue. 25 THE COURT: Why don't you have Ms. Baker send a status SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4391 47QMSAT7 1 report to Mr. Tigar by the end of tomorrow and the parties can 2 then determine where they are and whether any further 3 assistance from the Court is necessary. 4 MR. BARKOW: We will do that, your Honor. 5 MR. TIGAR: Thank you, your Honor. 6 MR. FALLICK: Your Honor, with permission of the 7 Court, we would like to send a letter to the Court tomorrow 8 about Government Exhibit 2048 and 2080. 9 THE COURT: Sure. 10 I hope that the government will -- I have not gone 11 over the remaining documents. I have gone over the ones that I 12 was asked to rule on for this week and I will go over the 13 remaining documents. I know that they include the ones that 14 Mr. Fallick just raised. And I would ask the government to 15 look at the remaining documents, and you can advise me by -- 16 also by tomorrow if there are any in those remaining documents 17 that given my exhortation about pruning are documents that I 18 don't have to review. I'll review them all if you want me to. 19 MR. BARKOW: Your Honor, we have pruned some. This 20 letter represents a pruning and has left out some sizeable 21 things that the Court, if it reviewed, would take a long time 22 and would take a long time to present. I think we have pruned 23 to the point where we would like a ruling. We would actually 24 propose to the defendants an agreement where we would drop 25 certain exhibits in exchange for them dropping their objections SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4392 47QMSAT7 1 to these. They did not, but nonetheless we dropped the ones 2 that we had posed anyway. 3 THE COURT: I saw that in the attachment to the letter 4 and I -- it is good that exhibits are pruned, but I will decide 5 with respect to the exhibits that are before me on those 6 exhibits, not on the basis of the parties' negotiations. I 7 realize that there is a larger universe, but I am sure that you 8 are going to get into the same issues with respect to the 9 results of the other searches. 10 MR. TIGAR: Your Honor, we began this afternoon's 11 session on legal issues with your Honor saying that there was 12 rhetoric in our submissions that the Court did not find 13 helpful. I'd like to get my batting average up as high as I 14 could -- and I mean seriously -- that I don't want to present 15 arguments of a type that the Court doesn't find helpful unless 16 I feel I've got to say something to protect the record or 17 whatever. If there is some guidance that the Court could give 18 us, I would appreciate it. 19 THE COURT: No. The tone of the correspondence back 20 and forth was somewhat more heated than usual. And you all can 21 review the correspondence. I think, for example, that the 22 withdraw on objections on 2060 are correct. And, therefore, I 23 wonder why it was necessary to go through everything that was 24 said with respect to 2060. And I just pass it along and the 25 correspondence between the parties on these issues seem to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4393 47QMSAT7 1 to be more heated and personal than some of the other 2 correspondence I have received. 3 MR. TIGAR: Well, I did put a footnote. We did put a 4 footnote in our letter about calling people by some honorific, 5 Mr. Barkow and Ms. Stewart and so on. I apologize if the tone 6 of that -- I shouldn't apologize. If the tone of that was 7 unduly sarcastic, I apologize. 8 I will say to the Court, if I may, that the concerns 9 that we raised in the first several paragraphs, based on our 10 reading of McDermott and Peoni, reflect real concerns that are 11 going to occur over and over and over again about this idea 12 that we do take, as running through these objections, you can't 13 be a member of a conspiracy that you don't understand. And 14 there is this idea of the nature of the agreement changing over 15 time, what that means to the liability of those who showed up 16 first. That's what we meant by that. And we do think that 17 that is a valid consideration when making these 801(d)(2)(E) 18 determinations, regardless of whether the Court agrees with us 19 globally on our ideas about the various conspiracies charged 20 here. That, it seemed to us, was important. Of course, that 21 related back to our concern, before there is relevancy there is 22 materiality, which I take it to be the same thing the advisory 23 committee was saying in the notes to Rule 401. We first have 24 to decide what the case is about. 25 THE COURT: Anything else? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4394 47QMSAT7 1 You will give me a report next week. 2 MR. MORVILLO: Your Honor, how would you like that 3 report? Would you like us to write you a letter and set forth 4 the -- 5 THE COURT: Yes. If I have to rule on something, you 6 are going to give it to me next week. 7 MR. MORVILLO: In other words, you are not asking for 8 a status conference next Tuesday here? 9 THE COURT: I am not asking for a status conference. 10 If it is necessary to have a status conference at any time next 11 week, just let me know and, of course, I'll schedule one. And 12 if it is necessary for me to make rulings on material to be 13 offered on the next day of trial, it may be necessary for me to 14 call you in. But maybe you will agree. 15 Anything else? 16 Good evening, all. 17 (Adjourned to Monday, August 9, 2004, at 9:15 a.m.) 18 o 0 o 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4395 47QMSAT7 1 GOVERNMENT EXHIBITS 2 Exhibit No. Received 3 1040X . . . . . . . . . . . . . . . . . . 4315 4 1255X . . . . . . . . . . . . . . . . . . 4316 5 1256X, 1257X, and 1258X . . . . . . . . . 4323 6 1048X, 1050X, and 1059X . . . . . . . . . 4359 7 o 0 o 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