4619 48ILSAT1 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 August 18, 2004 8 9:15 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 4620 48ILSAT1 1 (In open court; jury not present) 2 (Whereupon, pursuant to Court Order, Pages 4621 - 3 4633 are sealed) 4 (Continued on next page) 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 4634 48ILSAT1 1 (In open court; jury not present) 2 THE COURT: Please be seated. I had a couple of other 3 issues that you had left me with. 4 MR. RUHNKE: Your Honor, if you could use the 5 microphone? 6 THE COURT: Sure. 7 MR. RUHNKE: Thank you. 8 THE COURT: A couple of other issues. One was Jencks 9 material relating to Agent Kerns. I reviewed the redactions on 10 Government Exhibits 3525W through A1. I've also received a 11 letter from the government dated August 17, 2004, which is 12 classified secret and submitted ex parte that refers to the 13 documents. If the unclassified parts of the August 17 letter 14 have not been provided to the defendants, then they should be. 15 Because there's no reason to not -- I don't know if they have 16 been or not. 17 MS. BAKER: They have not, your Honor, but we'll do 18 that at lunch today. 19 THE COURT: Okay. As you will see, it's essentially, 20 largely a cover letter, but, nevertheless.... 21 I've reviewed the redactions which the government has 22 asked me to do pursuant to the Jencks Act. At this point, it 23 is difficult to see how the individual redactions would be 24 relevant to the subject matter of the potential direct, with 25 two exceptions: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4635 48ILSAT1 1 The first item in the government's letter is a 2 descriptive term which is contained in the title of a memo by 3 Agent Kerns that is also referred to in the body of the memo. 4 While I fully appreciate that it is difficult to see how this 5 would be matter for impeachment, it is also difficult to 6 separate this from the subject matter of the memo it being, 7 after all, the title, and the potential direct testimony of 8 Agent Kerns. 9 Also, although there has already been testimony about 10 the name of Agent Kerns' squad, there appears to be no basis to 11 exclude that description in the memo, although of course any 12 possible cross-examination value is already there because the 13 name of the squad is already in the record. 14 All of these items in the memos have been specifically 15 marked unclassified. And the only thing preventing their 16 disclosure is the fact that the memos have been declassified 17 as-is, with the redactions. And I realize that these memos 18 were classified on -- declassified on August the 16th, and why 19 they were declassified the way they were, I do not know, and -- 20 in any event, the government should promptly seek 21 declassification of other copies of the memos without these 22 particular redactions. 23 Yes? 24 MS. BAKER: Your Honor, just so that the record is 25 clear, I don't believe that those portions of the memos are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4636 48ILSAT1 1 currently unclassified. If your Honor is referring to the fact 2 that the redacted copies have used -- next to those portions of 3 the memos? 4 THE COURT: Right. 5 MS. BAKER: That is because those portions are 6 unclassified as blacked out. But if your Honor were to look at 7 the classified versions that we delivered to you yesterday -- 8 and obviously I don't have those here in the courtroom; I'm not 9 authorized to bring them to court -- but my recollection is 10 that typed into the original memos, each of those portions was 11 in fact classified "secret". So it's only now unclassified 12 because of the blacking out. 13 So we will have to request that the memos be 14 declassified again without those portions blacked out, if that 15 is your Honor's wish. 16 THE COURT: Yes. And as I said, it is -- these are 17 issues which really don't go to credibility, content, context. 18 But you've asked me to make it solely on the Jencks Act as to 19 whether it was relevant to the subject matter. And it's 20 difficult to say that the very title of the memo is not 21 relevant to the subject matter. 22 Now, there's an easy way to simply attempt to get that 23 declassified. And the other item I mentioned is already in the 24 record. It can hardly be termed secret. But it's not -- I'll 25 take your representation that it's marked unclassified because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4637 48ILSAT1 1 it's blacked out. There were other things on the memo which 2 are marked -- which are blacked out and not marked 3 unclassified. 4 MS. BAKER: My understanding of how it works, your 5 Honor, is that if a portion of a document originally bore a 6 classification marker, then with when at that document is 7 declassified, that part has to have an offsetting unclassified 8 marker to cancel out the classification marker that was 9 previously there. And so for other portions that never had 10 their own classification marker for that particular line or 11 that particular paragraph, they wouldn't need an unclassified 12 marker. So it's just the ones where there was originally an 13 indication of classification level where they then put an 14 indication that it's unclassified now as redacted. 15 THE COURT: All right. I can -- yes, the government 16 should seek declassification or make any other application. 17 It's clear to me, as I've said, that the redactions 18 that I've pointed to are not the grist of do not change the 19 content or context of the memo. And it would appear, and I'll 20 certainly listen to the parties, that Agent Kerns' testimony 21 could proceed. The redactions are -- which I've directed to be 22 restored, are very minor and could not reasonably affect the 23 substance of the testimony. If Agent Kerns -- if it were 24 necessary to recall Agent Kerns with respect to any of those 25 redactions, he could be recalled. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4638 48ILSAT1 1 As to the remaining redactions, including the second 2 item in the government letter, it is difficult to see that they 3 would be relevant to the subject matter of the direct 4 testimony. And with respect to all of the redactions as I've 5 said, they don't change the content of the memos, and they do 6 not identify any additional tapes that were subject to any 7 question as suggested yesterday by defense counsel. And they 8 also do not provide any Brady material. 9 MS. BAKER: I'm sorry, was your Honor's last phrase, 10 "not provide any Brady material?" 11 THE COURT: Yes. 12 MS. BAKER: I asked because I wasn't sure that the 13 court reporter heard your Honor clearly. 14 THE COURT: All right. 15 MR. TIGAR: I didn't understand your Honor's reference 16 to additional dates, "as suggested" by defense counsel. 17 THE COURT: I thought yesterday in your argument to me 18 concerning the memos, you suggested that there might be 19 material there which suggested additional tapes, that were 20 taken to Minnesota. And I wanted to make it clear that none of 21 the redactions provide any information with respect to any 22 additional tapes that went to Minnesota. 23 MR. TIGAR: Thank you your Honor. I didn't want the 24 Court to think that I had not stated matters accurately. All I 25 said was that there was a reference in 3525W to 360 tapes, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4639 48ILSAT1 1 that was all I had said about that. 2 As far as the procedure is concerned, I -- because I 3 haven't seen the material, I'm at a loss to know whether I 4 should object or not object to Agent Kerns appearing now. I 5 just don't know. The purpose of the Jencks decision and the 6 Jencks Act was to remove from the realm of speculation the 7 potential value and potential impeachment material, which is 8 why the 3500(b) sanction is stated absolutely. It's a little 9 bit like the Lexicon case, your Honor, in which, you know, this 10 is about process. And the fact that I can't prove that, the 11 process has a value on a particular occasion, doesn't seem to 12 me to compute in this. 13 But I will abide by your Honor's ruling and we'll 14 proceed however your Honor says. 15 The one thing that I did see overnight in the review 16 related to 3525V, and the specific file that was the one that 17 Agent Kerns had omitted to say was treated in Minnesota, but 18 was really on 1000L, that particular file. Our review shows 19 that this file was initially provided to us on a disk, CD, DVD, 20 whatever you want to say -- that was retrieved from us as the 21 result of a sealed order that your Honor may recall entering. 22 And what I -- based on tracking it back, what I didn't know is 23 whether anything about that process, which of course was opaque 24 to us because we simply had the order -- was relevant to the 25 inquiry that we're now making. Or to the testimony that Agent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4640 48ILSAT1 1 Kerns is presenting, or whether Agent Kerns participated in 2 that process, or whatever. 3 That's -- the Tape Number 99 -- excuse me, your Honor. 4 I stand corrected. It's on Exhibit 1300, not 1000. 5 It's the Tape Number 991790, as in Oscar, 31. And a 6 call is in evidence as 1018T. 1300. And as I say, that was a 7 call that was treated in Minnesota, or that the 9917 tape was 8 treated in Minnesota. I just don't know if there's any 9 relationship, your Honor. But that is what our overnight 10 inquiry disclosed. 11 THE COURT: Is the question whether there's a sealing 12 order or anything that affects that or -- 13 MR. TIGAR: Your Honor, is there anything about the 14 sealed material that your Honor received and considered before 15 issuing the sealed order that ought to be produced to us? 16 Either because Agent Kerns participated in the process, which I 17 don't know, or Brady or anything else? 18 THE COURT: Ms. Baker? 19 MS. BAKER: Your Honor, I will have to review those 20 materials. I don't recall the specific information that was 21 contained in those papers well enough to be able to address 22 this question right now. 23 THE COURT: Okay. Well, review the papers and then 24 make a response. Okay? 25 That leads me then to government exhibit -- oh -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4641 48ILSAT1 1 MS. BAKER: I'm sorry, your Honor, it is the 2 government's intention to call Agent Kerns after the lunch 3 break today, and I just wanted to address one other issue that 4 Mr. Tigar raised yesterday in connection with the timing of 5 Agent Kerns' testimony, and that is the request made by 6 Mr. Tigar for the forms or any forms filled out by the 7 translators advising of what they perceived to be technical 8 problems relating to the calls that are being used as evidence 9 in this case. Some forms of that type have been found, and 10 they are being reviewed to determine whether they relate to 11 particular calls that the government is offering at this trial. 12 However, the government submits that that should have 13 no affect on the timing of Agent Kerns' testimony because the 14 forms that have been found apparently were filled out in 15 connection with the translator's review of calls within a day 16 or two of when the calls were originally intercepted, which 17 would be during the time period from 1996 through I believe the 18 last calls that we're using here at trial are from 2001, and 19 during that period of time, Agent Kerns was not working as a 20 technical agent, so if there are any such forms that relate to 21 any calls that the government is using as evidence here, and if 22 those forms prompted any response by anyone, Agent Kerns was 23 not in any way involved in that response and has no personal 24 knowledge of any of it because he was not in his current 25 position at that time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4642 48ILSAT1 1 THE COURT: All right. Well, I wouldn't preclude 2 any -- if the defendants wanted to ask one or more questions on 3 that subject as to whether he got any such reports, and if so, 4 when, I certainly wouldn't preclude that from being asked. 5 You've made the representation and defendants can consider that 6 as to whether they wish to ask any questions. 7 MS. BAKER: Your Honor, may I be excused to address 8 the issue of your Honor's ruling this morning? 9 THE COURT: Yes. Thank you. 10 MR. TIGAR: Your Honor, I understand Agent Kerns -- we 11 have a 48-hour window after Agent Kerns testifies in order to 12 file something. I have some medical appointments on Friday I'm 13 hoping to make, and so could we have 72 hours instead of -- 14 THE COURT: You mean Saturday? 15 MR. TIGAR: That would be Saturday. 16 THE COURT: That's fine. And the government can 17 respond on, if the government wishes, on Tuesday? 18 MS. BAKER: Yes, your Honor. 19 (Ms. Baker exits the courtroom) 20 MR. TIGAR: Thank you, your Honor. 21 THE COURT: Okay. 22 MR. BARKOW: Your Honor, we're not going to get to 23 2024 this morning. I don't know if the Court wanted to discuss 24 it, but we don't need to. 25 THE COURT: I'm prepared to discuss it. But let's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4643 48ILSAT1 1 bring in the jury. 2 MR. BARKOW: I just wanted to tell the Court one 3 thing. I passed up to your Honor's law clerk and provided to 4 all parties a three-page document with exhibits in the 5 left-hand column; and then a middle column, translation 6 evidence; the right hand column, location of underlying call, 7 this morning. 8 THE COURT: Yes. 9 MR. BARKOW: I did that for the convenience of the 10 Court and the parties. It lists the calls we are going to 11 offer into evidence today, and on the left-hand column, the 12 transcripts of those calls, the middle column reflects the 13 evidence that establishes that the translation is correct. And 14 VB stands for Vickie Benjamin; NB, Nabila Banout. I think 15 there's one on here that's a stipulation. And the right column 16 lists the DVD on which the actual call is contained. 17 So when the jury comes out, what I'd like to do is 18 offer into evidence all of the "X" transcripts on this exhibit 19 except for those on DVD 1317 because Agent Kerns is going to 20 come and testify about that. And so if I -- what I would 21 propose is I just list the "X" numbers, the "X" exhibit 22 numbers, without explaining before the jury which exhibit it 23 connects to and which translator testified about it. But I 24 provided it for the Court and for the parties so all that 25 information which the Court has asked for before is found in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4644 48ILSAT1 1 one place. 2 And then, after Agent Kerns testifies, and if Exhibit 3 1317 is received, we would then offer a block of transcripts on 4 this list that are from DVD 1317. 5 And then the final point I would make is that all of 6 these exhibits also are treated in Exhibit 1313S, which is the 7 stipulation that discusses how "T" transcripts are redacted and 8 end up as "X" transcripts. So this chart sets forth the 9 information that we typically provide when we offer these 10 exhibits into evidence. 11 And one last thing. Yesterday when I offered 1063X, I 12 misspoke, and Ms. Shellow-Lavine corrected me. As it reveals 13 on the chart, the testimony regarding translations from 14 Victoria Benjamin yesterday, were not from a stipulation. 15 THE COURT: All right. Well, you don't want to 16 correct that before the jury, I take it? 17 MR. BARKOW: No, your Honor. I was just telling the 18 Court. 19 THE COURT: And you do want to offer exhibits -- the 20 list of exhibits on the DVDs with the exception of those on DVD 21 1317? 22 MR. BARKOW: That's correct, your Honor. And that I 23 would propose to list before the jury the "X" transcripts only 24 and not the others. 25 THE COURT: All right. And there's no objection to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4645 48ILSAT1 1 that? 2 MR. TIGAR: No, your Honor. 3 THE COURT: Okay. All right. Let's bring in the 4 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 4646 48ILSAT1 1 (In open court) 2 THE COURT: Good morning, ladies and gentlemen. 3 JURORS: Good morning. 4 THE COURT: It's good to see you all. As I've 5 mentioned to you before, when we begin a little late, there are 6 various matters that I have to take care of, and that's -- it's 7 my responsibility and no one else's. And I hope that in doing 8 this we use most effectively your time when you're in the jury 9 box by taking care of various legal issues. And I hope that 10 that expedites and helps you in the time that you're sitting 11 here in the jury box. I think it's more comfortable waiting in 12 the jury room than sitting here. And as you've noticed, unlike 13 this some trials, we try to not have sidebar conferences with 14 the lawyers and we try to take care of legal issues while 15 you're still in the jury room, so that we hope that that helps 16 your time while you're in the jury box. And I appreciate very 17 much your indulgence. 18 All right. Mr. Barkow? 19 MR. BARKOW: Your Honor, at this point, the government 20 offers into evidence the following transcript exhibits: 21 Exhibits 1063X, 1065X, 1066X, 1068X, 1070X, 1072X, 22 1074X, 1078X, 1080X, 1081X, 1082X, 1083X, 1105X, 1106X, 1109X, 23 1110X, 1113X, 1118X, 1147X, 1149X, 1150X, 1152X, 1160X, 1164X, 24 1172X, 1173X, 1174X, 1176X, 1177X, 1196X, 1197X, 1251X, 1260X, 25 1261X, 1262X, 1263X, 1264X, 1265X, 1266X and 1267X. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4647 48ILSAT1 1 THE COURT: All right. No objections? Those exhibits 2 are received in evidence. 3 (Government's Exhibits 1063X, 1065X, 1066X, 1068X, 4 1070X, 1072X, 1074X, 1078X, 1080X, 1081X, 1082X, 1083X, 1105X, 5 1106X, 1109X, 1110X, 1113X, 1118X, 1147X, 1149X, 1150X, 1152X, 6 1160X, 1164X, 1172X, 1173X, 1174X, 1176X, 1177X, 1196X, 1197X, 7 1251X, 1260X, 1261X, 1262X, 1263X, 1264X, 1265X, 1266X and 8 1267X received in evidence) 9 MR. BARKOW: At this point, we would request 10 permission to publish to the jury and read to the jury 11 government Exhibit 1063X which is in evidence and ask if 12 Mr. Forkner could step up, and also Mr. Glenn, who will be 13 reading the lines of Mr. Yousry. 14 THE COURT: All right. 15 MR. BARKOW: If Mr. Forkner could take the podium and 16 Mr. Glenn take the witness stand. Can Miss Griffith put the 17 transcript on the screen? 18 THE COURT: Yes. 19 MR. BARKOW: This is a call on March 18th at 2000 at 20 8:20 p.m., and, as I said, Mr. Forkner will read the lines of 21 Ahmed Abdel Sattar, and Mr. Glenn will read the lines of 22 Mohammed Yousry. May I proceed, your Honor? 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1063X, in evidence, 24 25 was displayed and read to the jury) 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4648 48iesat2 1 MR. BARKOW: Your Honor, if Mr. Forkner would stay at 2 the podium. At this point we would ask permission to publish 3 and read to the jury Government Exhibit 1065X, which I place it 4 on the screen. This is a call between Ahmed Abdel Sattar and 5 Fawzi. 6 So we'd ask permission for Mr. Glenn to go back to the 7 audience. 8 THE COURT: All right. 9 MR. BARKOW: And actually, if Mr. Dember can go to the 10 podium. 11 THE COURT: All right. 12 MR. BARKOW: I mean to the witness stand. 13 Your Honor, this is a call on March 26th of 2000. 14 Mr. Forkner will read the lines of Ahmed Abdel Sattar and 15 Mr. Dember will read the lines of Fawzi. 16 May we proceed. 17 THE COURT: Yes. 18 (At this point Government Exhibit 1065X, in evidence, 19 was displayed and read to the jury) 20 THE COURT: All right. 21 MR. BARKOW: Your Honor, at this point we would ask 22 permission to publish to the jury and read to the jury 23 Government Exhibit 1066X. 24 THE COURT: All right. And, your Honor, with the 25 Court's permission Mr. Dember -- this is a call on March 27th SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4649 48iesat2 1 of 2000 at 3:04 p.m. And with the Court's permission, 2 Mr. Dember will read the lines of Mustafa Hamza. Mr. Morvillo 3 will read the lines of Mr. Salah Hashim, and Mr. Fuller will 4 read the lines of Ahmed Abdel Sattar. Mr. Fuller will read the 5 lines of unknown child. 6 With the Court's permission, may Mr. Forkner go to the 7 witness stand at this point, because I think he's going to be 8 here reading several calls. 9 MR. MORVILLO: Your Honor, I'll share the podium with 10 Mr. Dember. 11 (At this point Government Exhibit 1066X, in evidence, 12 was displayed and read to the jury) 13 THE COURT: All right. 14 MR. BARKOW: Your Honor, at this point we'd ask 15 permission to publish to the jury and read to the jury what is 16 in evidence as Government Exhibit 1067X And ask if Mr. Glenn 17 could step up to the podium. 18 THE COURT: 1067? 19 MR. BARKOW: 1067 was in evidence prior to today, your 20 Honor. I can get you the date, but it was not part of this 21 morning's offer. 22 THE COURT: All right. 23 MR. BARKOW: On July 15th, your Honor. 24 THE COURT: OK. 25 MR. BARKOW: And if Mr. Glenn could step up to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4650 48iesat2 1 podium. 2 THE COURT: All right. 3 MR. BARKOW: And may we place the transcript on the 4 screen, your Honor. 5 THE COURT: Yes. 6 MR. BARKOW: Your Honor, this is a call on March 31, 7 2000, 9:59 p.m. Mr. Forkner will read the lines of Ahmed Abdel 8 Sattar. Mr. Glenn will read the lines of Mohammed Yousry. 9 May we proceed, your Honor? 10 THE COURT: Yes. 11 (at this point Government Exhibit 1067X, in evidence, 12 was displayed and read to the jury) 13 THE COURT: All right. 14 MR. BARKOW: Your Honor, at this point we'd ask the 15 Court's permission to publish to the jury and read to the jury 16 Government Exhibit 1068X, which is in evidence. And actually, 17 this call does not involve Mr. Forkner. 18 THE COURT: All right. 19 MR. BARKOW: Maybe we could put it on the screen, your 20 Honor. 21 THE COURT: Yes. 22 MR. BARKOW: Your Honor, this is a call on April 1st 23 of 2000. With the Court's permission, Mr. Dember will read the 24 lines of Mustafa Hamza, and Miss Griffith will read the lines 25 of Hani and unknown man. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4651 48iesat2 1 THE COURT: Hold on. I was going to say we could take 2 a stretch break. I see some jurors stretching. Let's take a 3 stretch break. 4 (Pause) 5 MR. BARKOW: Mr. Forkner could step down. And if 6 Miss Griffith could take the stand. 7 THE COURT: Yes. 8 (At this point Exhibit 1068X, in evidence, was 9 displayed and read to the jury) 10 THE COURT: All right. 11 MR. BARKOW: Your Honor, with the Court's permission 12 we would seek to publish and to read to the jury Government 13 Exhibit 1069X, which is in evidence and was introduced into 14 evidence, or admitted into evidence on July 15th. 15 THE COURT: All right. 16 MR. BARKOW: This is a call involving Ahmed Abdel 17 Sattar, so we'd ask permission for Mr. Forkner to step up and 18 for Miss Griffith to come back to the desk. 19 Your Honor, may we put Government Exhibit 1069X on the 20 screen for the jurors. 21 THE COURT: Yes. 22 MR. BARKOW: This is a call, your Honor, on April 5th 23 of 2000 at 5:02 p.m. between Ahmed Abdel Sattar, unidentified 24 male and Yassir Al-Sirri. Mr. Forkner will read the lines for 25 Ahmed Abdel Sattar, and with the Court's permission, I will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4652 48iesat2 1 read the lines of the unidentified male and Yassir Al-Sirri. 2 May we proceed, your Honor. 3 THE COURT: Yes. 4 (At this point Government Exhibit 1069X, in evidence, 5 was displayed and read to the jury) 6 THE COURT: All right. 7 MR. MORVILLO: Your Honor, we have a witness that 8 we're prepared to put on the stand now, Mr. Herold, but perhaps 9 this would be a good time for the morning break. 10 THE COURT: All right. We'll take our midmorning 11 break. 12 Ladies and gentlemen, please remember my continuing 13 instructions not to talk about the case. Always remember to 14 keep an open mind until you've heard all the evidence and I 15 instruct you on the law. 16 Have a nice break. See you shortly. 17 (Recess) 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4653 48iesat2 1 (At side bar) 2 THE COURT: Mr. Grate is arranging for a third van and 3 he's going to tell the jurors now that we've arranged for a 4 third van; that the jurors will be -- it will relieve the -- 5 any congestion on the current vans; and that the jurors will be 6 equally disbursed among the three vans and that we hope that 7 this is more convenient for them. I wanted to let you know. 8 And Mr. Grate will now go in and tell that to the 9 jurors. 10 Thank you. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4654 48iesat2 1 (In open court; jury not present) 2 MR. BARKOW: Your Honor, I just want to inform the 3 Court of one thing. I neglected to offer into evidence 1075X. 4 And before we get there I'd like to offer it before the jury. 5 It's not on my chart. Actually, that's why I didn't do it. So 6 I wanted to give the Court the underlying information now so I 7 didn't need to explain the whole structure before the jury. 8 1075X was the subject of Miss Banout's testimony on 9 August 16th and is on DVD 1300. The call is on 1300, so when 10 we get to 1075, I would propose to just offer 1075X before the 11 jury without going through that whole explanation. 12 THE COURT: All right. No objections? 13 MR. TIGAR: No. 14 THE COURT: No objections. 15 MS. BAKER: Your Honor, should we put Mr. Herold on 16 the stand before the jury comes in? 17 THE COURT: Yes. All right. Let's bring in the jury. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4655 48iesat2 1 (In open court; jury present) 2 THE COURT: All right. Miss Baker, call your next 3 witness. 4 MS. BAKER: Your Honor, the government would call Noel 5 Herold. 6 THE DEPUTY CLERK: Mr. Herold, having been previously 7 sworn, you are reminded you are still under oath. 8 THE COURT: All right. 9 NOEL HEROLD, 9 10 called as a witness by the Government, 11 having been duly sworn, testified as follows: 12 DIRECT EXAMINATION 13 BY MS. BAKER: 14 Q. Mr. Herold, if you would, just please make sure to speak 15 into the microphone and keep your voice up. 16 Mr. Herold, I'm going to hand you four different 17 items. The first is Government Exhibit 1707, which is in 18 evidence. Next is Government Exhibit 1707C for identification, 19 1707C1 for identification and 1707C2 for identification. 20 MS. BAKER: Your Honor, may I approach the witness. 21 THE COURT: Yes. 22 Q. Mr. Herold, do you recognize the tape, Government 23 Exhibit 1707, in evidence as a tape that you processed for use 24 in this case? 25 A. Yes, I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4656 48iesat2 Herold - direct 1 Q. And you testified about the processing of that tape the 2 last time you were here, correct? 3 A. That's right. 4 Q. If you would look, please, at the DVD marked for 5 identification as Government Exhibit 1707C. Do you recognize 6 that as the DVD that you testified about last time that 7 resulted from your processing of Government Exhibit 1707? 8 A. Yes, I do. 9 Q. Let me ask you to look, please, at Government 10 Exhibit 1707C1. Could you explain to the jury, what is the 11 relationship between 1707C and 1707C1? 12 A. These are two DVDs that were made simultaneously, 13 recordings made simultaneously at the time I did the audio and 14 video enhancement. 15 Q. So just to make sure that we're clear, when you originally 16 did the enhancing of the tape, Government Exhibit 1707C -- 17 sorry, 1707, when you were finished with that enhancing, did 18 you burn or make multiple identical DVDs containing the 19 results? 20 A. Yes. 1707C and 1707C1 were the result of playback of this 21 tape through enhancement equipment, and then the resultant 22 simultaneously recording of these two DVDs. 23 THE COURT: What tape are you referring to when you 24 say the playback of this tape? 25 THE WITNESS: 1707, Government Exhibit 1707. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4657 48iesat2 Herold - direct 1 Q. Were you recently asked to examine the DVD marked as 2 Government Exhibit 1707C1? 3 A. Yes. 4 Q. Did you conduct an examination of that DVD? 5 A. Yes, I did. 6 Q. What did you find when you examined that DVD? 7 A. I found that the DVD played back totally properly until 8 about 12 minutes from the start, at which time the audio on the 9 left channel dropped out, so there was no audio on the left 10 channel. 11 And then about 20 minutes from the end of the tape the 12 audio resumed again. And so there was good stereo audio at the 13 last 20 minutes of the tape and the first 12, and no audio on 14 the left channel in the intervening time. 15 In addition, there was some minor distortion 16 associated with the left channel in the remaining part of the 17 DVD, although the audio, there was some slight distortion. 18 Q. Now, based on your experience and expertise in processing 19 or enhancing videotapes, what is your opinion as to the cause 20 of the problem with Government Exhibit 1707C1? 21 A. I believe the cause was that the Hi8 1707 government 22 exhibit tape was played back in a machine that was slightly 23 incompatible with the audio tracks. The audio on a HI-8 tape, 24 in fact, Hi8 millimeter tape is multiplex. There's no linear 25 audio. It's multiplex within the video signal. And there's a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4658 48iesat2 Herold - direct 1 separate set of heads that play back the two audio tracks and 2 record them but play back the two audio tracks. And apparently 3 the machine that had played this tape back at the time was 4 slightly misaligned on the left track so that it dropped out, 5 just didn't pick up the information that was present on this 6 tape at the time. 7 Q. Now, as to the original Hi8 videotape, Government 8 Exhibit 1707, are there, in fact, two complete properly working 9 audio tracks throughout that tape? 10 A. Yes, there are. 11 Q. So the problem only affected the DVD on to which you 12 attempted to put the resulting enhanced recording that you 13 made, is that correct? 14 A. Yeah. The only problem was that the incompatible playback 15 of this at the time resulted in DVDs that had not all the 16 signals on them, the left track being absent on the DVD. 17 Q. Now, when did you conduct this examination of Government 18 Exhibit 1707C1 during which you discovered the problem that you 19 just described? 20 A. Well, I examined them on Monday, the 16th, and determined 21 at the time that there was a problem with -- the central part 22 of the DVDs. 23 Q. So that was two days ago? 24 A. Two days, two days, that's right. 25 Q. If you would look again at the DVD marked as Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4659 48iesat2 Herold - direct 1 Exhibit 1707C, which is the one that you testified about last 2 time. Have you examined that one to determine whether that one 3 has the same problem as 1707C1? 4 A. I didn't play this back, but there's no reason -- it would 5 be exactly the same because the problem is not with the DVDs or 6 the recorder. The problem is with the playback. 7 Q. Because of the problem with Government Exhibit 1707C1, were 8 you asked to start again with the original video cassette, that 9 is, Government Exhibit 1707, and make a new process or enhanced 10 copy of it? 11 A. Yes, I was. 12 Q. Did you do that? 13 A. Yes, I did. 14 Q. When did you do that? 15 A. I accomplished that on Monday the 16th -- actually, the day 16 I got it, I worked on it and then I finished it that afternoon. 17 Q. If you would look, please, at the DVD that's marked as 18 Government Exhibit 1707C2. Do you recognize 1707C2? 19 A. Yes, I do. 20 Q. What is Government Exhibit 1707C2? 21 A. This is a DVD that was made from the playback and 22 enhancement that was created on Monday, the 16th. 23 Q. So, is the content of Government Exhibit 1707C2 a copy of 24 what's on the tape, Government Exhibit 1707, but with the audio 25 enhanced? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4660 48iesat2 Herold - direct 1 A. That's right. 2 Q. Other than enhancing the audio, is there any difference 3 between the tape, 1707, and the DVD, 1707C2? 4 A. No. 5 Q. In the enhancement that you did on Monday to produce 6 1707C2, how does what you did on Monday compare to the 7 enhancement process that you described the last time that you 8 testified? 9 A. The enhancement process was identical, except that I used a 10 different model of a playback machine this time. 11 Q. And why did you use a different model of playback machine? 12 A. Well, it was clear that the particular Sony playback that I 13 used before had the incompatibility with this particular tape. 14 So I used another Sony model that was compatible with it and 15 had no problem. 16 Q. So on the new DVD, the new enhanced DVD, which is marked as 17 Government Exhibit 1707C2, do both of the audio tracks work 18 correctly throughout the DVD? 19 A. Yes, they do. 20 MS. BAKER: Your Honor, the government offers 21 Government Exhibit 1707C2. 22 MR. TIGAR: May I have just a moment, please, your 23 Honor. 24 THE COURT: Sure. 25 MR. TIGAR: May I inquire, your Honor? Or I'm content SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4661 48iesat2 Herold - direct 1 to wait until the end of the direct examination, whichever 2 would be more convenient for counsel. 3 MS. BAKER: Your Honor, why don't I move on to the 4 other area that I wanted to ask Mr. Herold about and then 5 Mr. Tigar can cover it all on cross. 6 THE COURT: OK. 7 MR. TIGAR: Thank you, your Honor. 8 BY MS. BAKER: 9 Q. Mr. Herold, I'm going to hand you now two more DVDs. The 10 first is Government Exhibit 1706C, which is in evidence, and 11 the second is Government Exhibit 1706C2 for identification. 12 MS. BAKER: May I approach the witness? 13 THE COURT: Yes. 14 Q. Mr. Herold, do you recognize Government Exhibit 1706C as a 15 DVD that you testified about the last time you were here? 16 A. Yes, I do. 17 Q. Is that another DVD that resulted from your enhancement of 18 one of the Hi8 millimeter video cassette tapes? 19 A. That's right. 20 Q. If you would look now, please, at Government 21 Exhibit 1706C2. What is Government Exhibit 1706C2? 22 A. Well, it was another DVD that was a duplicate of 1706C made 23 simultaneously when the -- the videotape was played back. 24 Q. And at least at the time that you made them and they left 25 your hands, were 1706C and 1706C2 exactly identical to each SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4662 48iesat2 Herold - direct 1 other? 2 A. Yes. 3 Q. Were you asked this morning to examine 1706C? 4 A. No -- well, yes, I did. I did examine it. 5 Q. And did you examine it visually? 6 A. Visually, yes. 7 Q. OK. What did you see when you looked at Government 8 Exhibit 1706C? 9 A. I saw what appeared to be a tiny scratch near the outside 10 edge of the recording area of the DVD. Unfortunately the 11 surface that's recorded on these DVDs is very, very sensitive 12 to any kind of abrasion. And if the abrasion is significant 13 enough, it will actually cause the recording to default, just 14 come apart or freeze, stop basically. 15 Q. Did you watch a portion of Government Exhibit 1706C played 16 back on the computer this morning? 17 A. Yes, I did. 18 Q. What happened when you saw that portion of Government 19 Exhibit 1706C played back? 20 A. On the computer it froze up at about 80 minutes into the 21 recording. 22 Q. I'm sorry. Did you say 80, eight-zero? 23 A. Yeah. I think it was an hour and 19 minutes, something 24 like that. 25 Q. Did you also this morning play back that same portion of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4663 48iesat2 Herold - direct 1 Government Exhibit 1706C using a regular DVD player? 2 A. Yes. 3 Q. What happened when you played it back on the DVD player? 4 A. It went right through, there was no problem. 5 Q. Could you explain why that would be that a DVD might not 6 work properly on a computer but might work properly on at least 7 a certain DVD player? 8 A. Well, a consumer, or a basic DVD player is much more 9 forgiving of any anomalies it sees on the disk, whereas a DVD 10 player on a computer is looking for precise signals. And if it 11 sees something that's anomalous, it will often just shut down, 12 which is apparently what happened in this case. 13 Q. And in a situation where a DVD has a scratch or some sort 14 of other surface defect or damage to it, is it possible that 15 such a DVD would play back properly on one DVD player but not 16 on another? 17 A. Yes. 18 MS. BAKER: Your Honor, I offer Government 19 Exhibit 1706C2. 20 And I have no further questions for the witness -- I'm 21 sorry. May I have a minute, your Honor? 22 THE COURT: Yes. 23 (Pause) 24 MS. BAKER: Your Honor, to clarify as to the offers of 25 1706C2 and 1707C2, the government offers those portions that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4664 48iesat2 Herold - direct 1 would correspond to the excerpted transcripts that will be 2 presented. 3 And I have no further questions. 4 THE COURT: All right. Mr. Tigar, you may inquire. 5 CROSS EXAMINATION 6 BY MR. TIGAR: 7 Q. Good morning, sir. 8 Let me start with the 1707 tape that you have there. 9 That's the actual tape that was made by the video recording 10 system, is that correct, sir? 11 A. That's correct. 12 Q. And so that I understand it, what you wanted to do with 13 that was make it easier to hear the spoken words that were 14 spoken by the people who were recorded there, correct? 15 A. That's right. 16 Q. And that's why as you testified last time you set up this 17 chain of gain brain, limiters and filters and so on, correct? 18 A. Correct. 19 Q. Now, were you able to tell why the first Sony system that 20 you used, about which you told us last time, was incompatible 21 with the tape player that you were using? 22 A. Actually the system was compatible with -- I believe we did 23 a total of 26 tapes. It was compatible with 25 of the 26. It 24 was just this one tape where we had a slight incompatibility 25 which resulted in loss of the sound on the left channel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4665 48iesat2 Herold - cross 1 Q. So the problem that you found was just with respect to that 2 one tape, correct? 3 A. Yes, sir. 4 Q. Now, are you able to tell from looking at that tape the 5 date that it corresponds to, 1707? 6 A. The date that it corresponds to? 7 Q. Yes. In other words, the day it was recorded. Did someone 8 write on there the date of the recording? 9 A. Yes, 5/19/00. 10 Q. So May 19, 2000? 11 A. Right. 12 Q. So -- and you're satisfied now that based on your having 13 reprocessed that, that we have the best that FBI technology has 14 to offer on this DVD in order to hear what people are actually 15 saying to each other, correct? 16 A. Correct. 17 Q. You said that the 1706 DVD, that had a scratch, correct? 18 A. It had a tiny scratch, yes. 19 Q. Now, was that the same scratch that was first brought to 20 your attention on the 16th of August? 21 A. I believe it was, yes. 22 Q. On the 16th of August, which would be last Monday, you got 23 some DVDs and you made a notation about some breakup that had 24 happened at 72 minutes and 36 seconds. Do you remember that? 25 A. When I made the copies on Monday, new copies of 1707 of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4666 48iesat2 Herold - cross 1 DVD, I made three copies. I examined all three and found that 2 one of the three copies had a slight scratch on it. It was a 3 brand new disk but it still had a scratch. It was on the 4 bottom, tiny scratch, and that was enough to cause the third 5 copy I made to basically stop playing at that point. If that's 6 what you're referring to. 7 Q. So that was the Monday issue. 8 But you've satisfied yourself that what you brought 9 today and identified is a DVD, that is in good shape and is 10 going to give us what the jurors will need to hear, the best 11 that your technology makes available, correct? 12 A. Yes. 13 MR. TIGAR: Your Honor, we have no objection to the 14 admission of these materials. We will have an application at 15 the break. 16 THE COURT: All right. Government Exhibits 1707C2 and 17 Government Exhibit 1706C2 received in evidence, to the extent 18 that they correspond to the excerpted transcripts to be 19 presented. 20 (Government's Exhibits 1707C2 and 1706C2 received in 21 evidence) 22 MS. BAKER: Your Honor, may I put one more question? 23 THE COURT: Sure. 24 - - - - - 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4667 48iesat2 Herold - cross 1 REDIRECT EXAMINATION 2 BY MS. BAKER: 3 Q. Just to clarify something that Mr. Tigar just asked you 4 about, 1706C, which is one of the DVDs that's in front of you 5 there, one of the DVDs that you testified about last time you 6 were here, had you looked at that DVD before this morning or 7 was this morning the first time? 8 A. No, this morning was the first time. 9 Q. So when you were being cross-examined and you were asked 10 and answered about a DVD with a scratch on it that you were 11 looking at on Monday, what DVD was that? 12 A. Well, there wasn't a DVD that had a scratch on it on Monday 13 other than the one I produced in making the copies. 14 Q. That's what I mean. Would you explain what that DVD was. 15 A. Well, that DVD was one of three copies. This is one of 16 three. Only two of the three are good because of the scratch 17 on the third. So I did not submit that to the Court for 18 enhancement because it's defective. The disk itself is 19 defective. 20 Q. And that third DVD, which is one of the ones that you made 21 on Monday, that one is not here in the courtroom today, 22 correct? 23 A. No. I have it in New York but it's not here in the 24 courtroom. 25 MS. BAKER: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4668 48iesat2 Herold - redirect 1 THE COURT: The two that were good, what numbers are 2 those? 3 MS. BAKER: Your Honor, only one of those has a number 4 because only one of them is being used here in court, and that 5 is 1706C2. The government has in its possession a duplicate of 6 that, but it's not here in court. 7 THE COURT: Is that right, the copy that you were 8 referring to is 1706C2, the one that you thought -- is that 9 right? 10 THE WITNESS: Oh, actually, I'm not sure which copy 11 was the one that had the scratch at this point, but they're 12 both good. 13 MR. TIGAR: If your Honor please, the Jencks material 14 we received has lab numbers that identify that scratch. We 15 agree with the government that that's not in court, has not 16 been presented and that what is presented is what he said. 17 THE COURT: OK. 18 MR. TIGAR: And that's 3523Y4. 19 THE COURT: All right. OK. Anything else? 20 MS. BAKER: No, your Honor. 21 THE COURT: All right. Mr. Herold, you're excused. 22 You may step down. 23 (Witness excused) 24 MR. MORVILLO: Your Honor, at this time the government 25 would request permission to read to the jury and publish to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4669 48iesat2 Herold - redirect 1 jury Government Exhibit 1070X in evidence. And this one's -- 2 has five participants on the call at various times. 3 So I would request that Miss Griffith, who will read 4 the attributions to Hani, take the witness stand. Mr. Dember 5 will read the attributions to Mustafa Hamza, and Mr. -- I'm 6 sorry. Mr. Dember will take the witness stand. Miss Griffith 7 will stand at the podium. 8 I would ask that the Court allow Mr. Forkner to come 9 forward and read some attributions to Mr. Sattar, as well as 10 attributions to an unidentified male. And at some point there 11 is a fifth participant in the call, Dr. Ismi'il, and Miss Baker 12 will read those attributions from the podium. 13 For the record, your Honor, this is a telephone call 14 on April 11, 2000, at 5:36:32 a.m. 15 THE COURT: You may proceed. 16 (At this point Government Exhibit 1070X, in evidence, 17 was displayed and read to the jury) 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4670 48ILSAT3 1 (Continuation, reading Government Exhibit 1070X) 2 THE COURT: Let me just stop for a moment. It's about 3 12:30. Why don't we take a stretch break, since we'll probably 4 go another 15 minutes. All right? 5 (Stretch break) 6 THE COURT: You may proceed. 7 (Continuation, reading Government Exhibit 1070X) 8 THE COURT: I'm waiting for Mr. Fletcher to tell us 9 that the jury's lunch is here so that we can move on. 10 MR. BARKOW: Your Honor, at this point then the 11 government would request permission to publish to the jury and 12 read Exhibit 1071X, which is in evidence, and we would ask 13 Mr. Forkner to step forward to the witness stand. 14 THE COURT: All right. 15 MR. BARKOW: This was admitted into evidence, your 16 Honor, on July 13. 17 THE COURT: All right. 18 MR. BARKOW: This is a call on April 13th of 2000 at 19 7:24 p.m., and Mr. Forkner will be reading the lines of the 20 unidentified child as well as the lines of Ahmed Abdel Sattar. 21 I will be reading lines attributed to unidentified male and 22 Yassir Al-Sirri. 23 THE COURT: All right. 24 MR. BARKOW: May we proceed? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4671 48ILSAT3 1 (At this point, Government Exhibit 1071X, in evidence, 2 was displayed and read to the jury) 3 MR. BARKOW: Your Honor, the next call is a lengthy 4 one; it's about the same length as the one before. 5 THE COURT: Let's start it until Mr. Fletcher tells me 6 that the jurors' lunches are here. 7 MR. MORVILLO: Your Honor, at this time the government 8 would request permission to read Government Exhibit 1072X, in 9 evidence. There are six participants in this conversation. I 10 would request that Mr. Dember take the witness stand and read 11 the attributions to Mustafa Hamza; and that Miss Griffith be 12 permitted to take the podium to read the attributions to Hani. 13 And Mr. Forkner, also at the podium, to read the 14 attributions to Mr. Sattar. 15 THE COURT: Mr. Fletcher has just indicated the 16 jurors' lunches are here. We'll adjourn for lunch. 17 Ladies and gentlemen, we'll break for lunch until 10 18 minutes after 2:00. Please, remember my continuing 19 instructions: Please, don't talk about the case at all or 20 anything or anyone to do with it. Please remember to keep an 21 open mind until you've heard all of the evidence, I've 22 instructed you on the law, and you've gone to the jury room to 23 begin your deliberations. 24 Have a good lunch, and I look forward to seeing you 25 this afternoon. All rise, please. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4672 48ILSAT3 1 (Jury exits the courtroom) 2 THE COURT: Please be seated, all. You may step down. 3 (Mr. Forkner exits the witness stand) 4 THE COURT: All right. 5 MR. TIGAR: Your Honor, the -- now that this 6 enhancement has been clarified and we're on the way to 7 clarifying the portions of the prison visits, looking back at 8 Page 1437 of the transcript, there was an offer of the original 9 Hi8 videotapes to the extent that they corresponded with 10 transcripts that will be offered. We'd asked the Court to 11 reserve on that. 12 I wanted to state our position; the government can 13 think about it. We would agree to the admission of those to 14 the extent they reflect the Court's decision on portions to be 15 published to the jury as transcripts or by playing them because 16 some of the transcripts are evidence and some are not. The 17 Court's decisions will, we think, follow the parties' 18 stipulations. That just seems to be a way to say it. 19 The reason I'm raising this now is that there could be 20 some more technical problems such as scratched DVDs with 21 Mr. Herold, and if we get into jury deliberations, we'll at 22 least then have one complete set of originals and we could set 23 up in the courtroom or whatever. 24 But anyway, that's the status of why I wanted to state 25 our position, that the government had offered them, and I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4673 48ILSAT3 1 see any reason why they could not be received. 2 THE COURT: It's a question of -- solely of wording. 3 I believe that -- the parties didn't write it out, but I 4 believe what Mr. Tigar said is what in substance the government 5 had said last time, and the defense agreed with it, and I may 6 not have said it as felicitously today, but the plain intent of 7 the parties was that the original DVDs were to be admitted to 8 the extent of the transcripts that are shown to the jury, 9 either in evidence or played with tapes. 10 MR. TIGAR: Yes, sir. I was, however -- the 1700 11 series, without suffixes, are the original Hi8 tapes. And 12 that's what the government had offered, I understand, at 1437. 13 We're proposing that those be in evidence as well. It was an 14 additional offer. 15 MS. BAKER: Your Honor, the government has no 16 objection. We were the ones who offered them to the extent 17 they correspond to the excerpted transcripts. I only want to 18 say it was my belief that previously, I thought perhaps maybe 19 the day before the trial was adjourned or the day before that, 20 that Mr. Tigar had already withdrawn his objection to the offer 21 of the original tapes, and that the original tapes had already 22 been received, to the extent they corresponded to the 23 transcripts. But if that's not the case, if they have not been 24 received yet, then the government agrees that the original Hi8 25 tapes should be received, to the extent that they correspond to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4674 48ILSAT3 1 the excerpted transcripts. 2 MR. TIGAR: I may be wrong, your Honor, but I had 3 thought that this was still pending and that the Court had 4 reserved. That was my impression. I don't know why we're 5 disagreeing. Seems like we are. 6 THE COURT: We can check the transcript. My 7 recollection was -- we can check the transcript. My 8 recollection was it was received and that there was some -- 9 there was an issue between the government and Mr. Tigar over 10 what the government meant by its limitation on the originals, 11 and when the government clarified it, that, well, the portions 12 that the parties agreed were not -- were to be left out, 13 because they're not reflected on the transcripts, shouldn't 14 then be able to be played to the jury, and everyone agreed to 15 that. 16 There's no disagreement between the parties on this. 17 So if you just look at the transcript, and if I have to clarify 18 it or -- in some way, I believe that you all agree on it. So 19 check it. You all have computers. Okay. 20 Can I talk to the lawyers just for a moment before 21 lunch? 22 (At the sidebar) 23 THE COURT: I don't mean to pry, and this is strictly 24 a personal, solicitous comment, but when a lawyer tells me that 25 he's going to the doctor, I inquire to make sure that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4675 48ILSAT3 1 everything is all right and that you don't need any other time. 2 MR. TIGAR: I would -- I have an arthritic condition 3 that has been causing me some difficulty moving. And I want to 4 have it looked at because I would like to be able to keep up 5 with Mr. Morvillo. 6 THE COURT: That's fine. That's fine. 7 MR. TIGAR: Thank you, your Honor, for your concern. 8 I really do thank you. 9 THE COURT: All right. 10 (Luncheon recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4676 48iesat4 1 AFTERNOON SESSION 2 2:15 p.m. 3 THE COURT: All right. 4 MS. BAKER: Your Honor, the government is going to 5 begin with the testimony of Special Agent Kerns. Would you 6 like us to put him on the witness stand before you bring in the 7 jury? 8 THE COURT: Sure. Did you inquire about the issue 9 Mr. Sattar has raised about the seal? 10 MS. BAKER: Oh. I'm not able to resolve that issue 11 now, and so when it is resolved, if it necessitates Special 12 Agent Kerns being recalled, so be it. But that's not something 13 that we're able to resolve at this moment. 14 THE COURT: And have you initiated the process with 15 respect to the other redactions? 16 MS. BAKER: I have, but that is also unresolved. 17 THE COURT: How long will that take? 18 MS. BAKER: I don't know. I have not been able to 19 reach all of the right people to know the answer to that 20 question. 21 MR. TIGAR: May I have a moment, your Honor, please. 22 Your Honor, we object to being required to proceed 23 until the government has produced the material required by 24 Section 3500. This is about process. 25 I had, as I told Mr. Morvillo -- I can explain my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4677 48iesat4 1 position, your Honor. I want to do a very structured, limited 2 cross. I don't want to waste the jurors' time and/or be seen 3 to do that. This idea of calling somebody back just to ask a 4 question, it makes me look bad in the presence of the jury. 5 And it -- well, it's not the procedure envisioned by 3500. 6 So I respectfully object to having to do it without 7 the 3500 material in hand. 8 MS. BAKER: Your Honor ruled this morning that the 9 material that was redacted that your Honor has directed be 10 unredacted was not substantive, and that your Honor did not 11 expect that it was the kind of material that could be used to 12 impeach or to give rise to further substantive 13 cross-examination. 14 And in light of that ruling, the government asks 15 permission to present Special Agent Kerns' testimony at this 16 time. Again, if he needs to be recalled, I don't think it's 17 going to make any particular impression on the jury, given that 18 he is being recalled today for the fourth time. If he has to 19 be recalled a fifth time, I don't think that the jury is going 20 to have any particular reaction to that. The government would 21 submit that it will prove to be unnecessary, but even if 22 necessary. 23 THE COURT: I'm quite confident about that with 24 respect to the redactions that I ruled on. The only -- and all 25 the rest of the 3500 material is there. What I don't know is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4678 48iesat4 1 the other issue that was raised, which was with respect to the 2 sealed documents. 3 MS. BAKER: Your Honor, the other issue that was 4 raised relates to a call which is on Government Exhibit either 5 1000 or 1300, meaning it relates to a call on a disk that has 6 been in evidence for some time now. 7 And I don't see a distinction between how Mr. Tigar's 8 ability to question Agent Kerns would be meaningfully different 9 whether that questioning were to occur today or a couple of 10 days from now, if indeed it's determined that anything needs to 11 be disclosed that would require further questioning. 12 MR. TIGAR: Your Honor, I have been placed in this 13 position by the fact that on August 3rd the government produced 14 as attachments to Ms. Baker's letter a very large number -- 15 eight, nine or so -- items. Now, in those -- and in her letter 16 she undertook to explain why Agent Kerns had made a mistake in 17 saying that none of the 33 tapes had a call on them that was on 18 Exhibit 1000. I'm prepared to cross-examine on that because 19 I'm not going to give, say, all the questions, but we've got 20 some things. 21 Then we received this much more complete set of 22 materials that raised these issues about problems with the 23 tapes. And that's something I think that, again, is worthy of 24 being explored. With respect -- 25 THE COURT: Could I just stop you for one moment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4679 48iesat4 1 MR. TIGAR: Yes, sir. 2 THE COURT: If you are -- if your application is that 3 you need some more time to go over those materials and 4 cross-reference them and look at the calls, the material that 5 you got yesterday, I would give you the more time that you 6 needed for that; but for cross-examination of this witness. 7 With respect to the two redactions that I pointed out 8 this morning, I am confident it doesn't affect cross. I 9 pointed out exactly what they were, and it doesn't affect the 10 calls themselves. But I understand the volume of the calls 11 that are listed and the cross-referencing. And if you told me 12 you got these documents yesterday and you want the more time 13 before cross, I'd give you the more time before cross. 14 MR. TIGAR: I'm not going to say that I need that, 15 your Honor. I mean, I could say it and solve it, but it 16 wouldn't be honest and I won't say it. 17 What I am saying, your Honor, is that I object to 18 being required to proceed now. And I do so because, as I said 19 this morning, the Jencks Act and the case on which it's based 20 is -- says you've got to turn it over right after the witness 21 testifies, and if you don't, you strike the testimony. It's 22 about process. 23 And at the risk of going on too long, this is the sort 24 of thing that Learned Hand talked about, that it seems 25 sometimes that these rights we exercise have no value in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4680 48iesat4 1 hands of their possessor but we enforce them nonetheless. 2 And in cross-examination -- cross-examination in my 3 view is an organic process. And it is a process in which at 4 times one has uncertain territory. You put something out there 5 in front of the witness knowing you can go on to something 6 else; that is to say, the cross-examination ought to be on 7 organic whole with the beginning and middle period and end. 8 So that's my application, your Honor. If I'm 9 compelled to go forward, of course I will. 10 THE COURT: We can cross over until tomorrow, 11 Ms. Baker, and you can make the inquiries with respect to what 12 it was that I directed you to. 13 The other question that was raised is not -- you don't 14 know if that's 3500 material or not? 15 MS. BAKER: That's correct, your Honor. I don't know 16 whether there is any -- well, there are sort of two separate 17 issues. I don't know whether there are any statements of Agent 18 Kerns within the meaning of 18 U.S.C. 3500 that relate to the 19 subject matter of the Court's sealed order that Mr. Tigar 20 referred to this morning. 21 Even if there are documents that would fall within the 22 definition of statements under 18 U.S.C. Section 3500 of Agent 23 Kerns, I don't know that those would be disclosable under 24 Section 3500 because I don't know that that would relate in any 25 way to the subject matter of his direct testimony. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4681 48iesat4 1 So there are two separate issues that government needs 2 to look into to respond to the request that Mr. Tigar made this 3 morning. What I will say is Mr. Tigar made that request in 4 connection with one particular call, which is the audio which 5 is denominated Government Exhibit 1018, 1018, which is a call 6 on July 2, 1999. And that audio is on a DVD, Government 7 Exhibit 1300. 8 1300, as I said a little while ago, has long been in 9 evidence. And the call, Government Exhibit 1018, was presented 10 to the jury quite some time ago. So were that issue resolved 11 right at this moment or were that issue resolved tomorrow, I 12 don't see a difference in how that plays out as far as 13 cross-examination of Agent Kerns relating to a call that is 14 already in evidence and was already presented to the jury if, 15 in fact, there turns out to be any statement of Agent Kerns, 16 the disclosure of which would be required by Section 3500. 17 MR. TIGAR: To respond to that briefly, your Honor, 18 the reason that this comes up now is that on 3525V as in Victor 19 we see for the first time that there is a problem with -- that 20 this tape where this came from, the original tape, is on 3525V. 21 And thus we're at a place where we have -- we first got the 22 on-track information, OK. Ms. Baker attempted to stop me from 23 inquiring about it by making certain representations to the 24 Court. 25 The Court permitted me to raise it on cross. Agent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4682 48iesat4 1 Kerns made a statement on the subject of what was on on-track 2 that turns out to have been inaccurate. But nonetheless, I did 3 raise it on cross. 4 Now, two Jencks productions later, because it didn't 5 come in on August 3rd, we got this one. So the reason it comes 6 up now, your Honor, is that the tip of the iceberg has finally 7 appeared. But in any case, that's the reason. And the reason 8 I made my application this morning was that I thought there 9 might be Jencks material, and now we're told there might be. 10 THE COURT: You have to make inquiry as to whether the 11 Jencks material is there before cross, having been asked. 12 MS. BAKER: I understand that, your Honor. 13 THE COURT: So at this point the only thing we can do 14 would be to do the direct of Agent Kerns, if you wished, and 15 then the cross would go over until tomorrow. And the issue 16 that I raised with respect to the redactions should be able to 17 be resolved quickly. I've already indicated what my views were 18 on it, but you can resolve the whole issue very quickly. 19 MS. BAKER: Your Honor, unfortunately I cannot resolve 20 it as quickly as the Court might wish, because the mere fact 21 that your Honor -- I don't mean to say "mere fact" to downplay 22 it -- your Honor has ordered the material disclosed, but that 23 assumes that it can be declassified. And I don't know that as 24 I stand here now, and that is the question that is being looked 25 into. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4683 48iesat4 1 If a determination is made that that information 2 cannot, in fact, be declassified, then the government has to 3 determine what, if any, application might be proposed under the 4 Classified Information Procedures Act. So it is not that I can 5 stand here and say, yes, it is going to be declassified and so 6 it's only a matter of pushing paper. I am waiting for an 7 answer to that question, and people are working on it as we 8 speak. 9 As to the latter issue of whether there is any Jencks 10 Act material for Agent Kerns, if your Honor will allow me to 11 step out for a minute, I may -- I may be able to get an answer 12 to that question right now. 13 THE COURT: Why don't you ask about both questions and 14 we'll take ten minutes. 15 (Recess) 16 THE COURT: All right. Can the government proceed 17 with the phone calls? 18 MR. MORVILLO: Yes. Ms. Baker went back to the office 19 to look at some documents and we are -- we have some other 20 phone calls we can read to the jury so we don't waste any more 21 time. 22 THE COURT: All right. Bring in the jury. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4684 48iesat4 1 (In open court; jury present) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 Good to see you as always. 4 All right. Mr. Morvillo. 5 MR. MORVILLO: Yes, your Honor. 6 At this time the government would request permission 7 to read and publish to the jury Government Exhibit 1072X. And 8 we also request permission for Mr. Dember to be seated in the 9 witness seat to read the attributions to Mustafa Hamza. 10 And would Mr. Forkner come forward to read the 11 attributions to Mr. Sattar, the unidentified male and 12 unidentified child. 13 And Miss Griffith will stand at the podium as well and 14 read the attributions to Hani and Thabit. 15 For the record, this is a telephone call that occurred 16 on April 18, 2000, at 6:30:36 a.m. 17 (At this point Government Exhibit 1072X, in evidence, 18 was displayed and read to the jury) 19 THE COURT: Let's hold on just a moment. It's 10 20 after three. Let's take a stretch break. 21 (Pause) 22 THE COURT: All right. Please be seated, all. 23 (Continued reading) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4685 48ILSAT5 1 (Continued reading of Government Exhibit 1072X) 2 THE COURT: All right. 3 MR. MORVILLO: Your Honor, I thought I saw Miss 4 Baker -- I guess she stepped out again. Your Honor, perhaps 5 this would be a good time for the afternoon break. 6 THE COURT: All right. We'll take 10 minutes. 7 Ladies and gentlemen, we'll take 10 minutes. Please 8 remember my continuing instructions: Not to talk about the 9 case; remember always to keep an open mind until you've heard 10 all of the evidence and my instructions on the law. See you 11 shortly. 12 All rise, please. 13 (Jury exits the courtroom) 14 MR. MORVILLO: Your Honor, the reason we requested a 15 break at this point other than the fact that it was about that 16 time, we are about to get to a four- or five-part telephone 17 call which comes in four or five transcripts. One part in the 18 middle deals with testimony by Agent Kerns. We can receive 19 that and offer it is subject to connection because it is a call 20 that is on the DVD that Mr. Kerns will be offering into 21 evidence. 22 I also believe that Miss Baker is prepared to proceed 23 with Mr. Kerns. At least she's prepared to report to the Court 24 on whether she's prepared to proceed. That's about as much as 25 I can say. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4686 48ILSAT5 1 So I didn't want to start that call and then interrupt 2 it. 3 THE COURT: Well, we'll take 10 minutes. 4 (Afternoon recess) 5 (In open court; jury not present) 6 THE COURT: Please be seated, all. 7 MS. BAKER: Your Honor, on the issue of whether there 8 is any 3500 material for Agent Kerns that relates to the sealed 9 order issued by the Court in May, I believe it was, Agent Kerns 10 authored a document which relates to the subject addressed in 11 the Court's sealed order. However, the government has 12 reviewed -- I've reviewed that document, and the government 13 respectfully submits that it is not 3500 material for Agent 14 Kerns because it relates to preparation of the disks that were 15 provided to the defense in discovery, which, as we have 16 repeatedly stated in submissions to the Court, was a different 17 process than the process through which the trial DVDs were 18 created. 19 So in the government's view, because that document -- 20 which I should say is classified -- because that document does 21 not relate to any preparation of the trial DVDs but rather 22 completely separate processes, it is not 3500 material because 23 Agent Kerns has not testified on direct and will not testify on 24 direct about the preparation of any discovery disks. 25 MR. TIGAR: Since I haven't seen the document, I can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4687 48ILSAT5 1 accept or reject a characterization of it. Agent Kerns' direct 2 examination on his first appearance began with a discussion of 3 how, when he arrived at the squad, there was underway the 4 process of converting the Lockheed Martin eight millimeter 5 tapes, EMT's. And as I recall -- and I don't have the 6 transcript here; I can't look at it right this minute -- he was 7 also asked whether or not he had been unable to retrieve 8 certain calls. 9 And I can't at all for this purpose -- I don't 10 remember if it was Mr. Paul's cross that first introduced it or 11 whether that was Ms. Baker. But in any case, he began by 12 telling us about the duties that he performed, and the 13 conversion process, and that was a global conversion process 14 that he, beginning at 3391, that he talked about. And then he 15 was shown an exhibit, which is Exhibit 1310 in evidence, that 16 is a color exhibit showing a conversion process from one to two 17 to three to four. And then he drew in another copy, which I 18 think is 1310A, with servers and so on. 19 And so, your Honor, it is not immediately apparent 20 that a document that's related to a -- that process is not 21 relevant to his direct examination, and that is, of course, in 22 addition to the fact that one of the calls in the matter about 23 which he's authenticating, which is the one I mentioned before, 24 is on the disk that was retrieved as a part of that process, 25 that being 1018T, as in Tango, which is on 1300. That appears SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4688 48ILSAT5 1 on Page 1 of 3525V. 2 So your Honor, our request is the same: That the 3 Court review this. It's clearly a statement by Agent Kerns 4 related to the audio surveillance in this case, and thus seems 5 to me to be fairly within the realm as to which a judicial 6 decision which is called for by the Jencks Act and not a 7 prosecutorial representation is the appropriate way. 8 THE COURT: I'll review the document. My -- and I'll 9 listen to the arguments; I'll listen to further arguments at 10 the end of the day. I do recall that I found that the 11 production of the telephone calls for purposes of discovery was 12 sufficiently distinct that it was not a reasonable subject of 13 cross-examination as opposed to the actual way in which the 14 trial DVDs were produced. 15 So I'll listen, and I'll review the document. It 16 really -- it doesn't make sense to me to have Agent Kerns 17 testify now while I have both of those 3500 issues out there, 18 and -- this one and the defense objection about going forward 19 with cross while the other classification issue is out there. 20 I realize that -- and of course, you can call Agent Kerns on 21 direct, and documents are required to be produced under the 22 Jencks Act after direct, and then for me to make rulings after 23 direct based upon the production of the documents and my review 24 of the documents, if required. 25 MS. BAKER: Your Honor, the government's primary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4689 48ILSAT5 1 purpose in recalling Agent Kerns at this time is for him to 2 authenticate an additional trial DVD marked as Government 3 Exhibit 1317. The government seeks to do that at this time 4 because the next call in chronological order is contained on 5 that DVD. 6 And the issue that Mr. Tigar has raised with respect 7 to the subject matter of the Court's sealed order and whether 8 this one document does or does not fall within 18 USC Section 9 3500 does not relate to that new DVD, Government Exhibit 1317. 10 And your Honor has already ruled that the material redacted out 11 of the other documents, which your Honor directed us to 12 unredact and turn over, is not information that could 13 meaningfully affect -- I'm paraphrasing now -- it's not going 14 to meaningfully affect the admissibility of the DVD. 15 So the government would like to be able to present 16 Agent Kerns' direct, I think it would fit in the remainder of 17 time today, and then your Honor could review the -- that one 18 additional document this evening -- we actually have it here in 19 the courtroom in the possession of the FBI. So it could be 20 provided to your Honor immediately at the end of the day. But 21 I don't know that we're going to have resolution of that other 22 issue by first thing tomorrow morning. 23 But from the government's perspective, none of that 24 bears in any meaningful way on the admissibility of government 25 Exhibit 1317, which is primarily what the government seeks to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4690 48ILSAT5 1 accomplish at this point in its case. 2 THE COURT: But 1317 wouldn't be admitted until cross 3 was complete, and that takes us back as to when cross would 4 begin. And your -- you're obviously welcome to present direct 5 testimony from Agent Kerns and abide by when cross has to 6 begin. The timing of production of classified materials was 7 not of my making, and I appreciate that it wasn't of your 8 making, as you said the other day. And I realize when it was 9 declassified. 10 And Mr. Tigar makes a fair point under the statute, 11 despite the fact that I've indicated to everyone what I thought 12 about the impeachment value of what I said to be produced. 13 But -- and you're welcome to brief for me my discretion with 14 respect to timing under the statute. But there is an 15 objection. And so it's one that I have to deal with. 16 We took a long break in order to be able to produce 17 the evidence in a chronological fashion. If there are some 18 exceptions to that chronological fashion, it's hard for me to 19 see that it will make that much difference. We're not talking 20 about the prison recordings, we're talking about telephone 21 calls. Are any of them are on the recent DVD that you seek to 22 admit through Agent Kerns now? It looks -- 23 MS. BAKER: I'm sorry, your Honor, we don't understand 24 your Honor's question. 25 THE COURT: Well, there are a lot of other calls which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4691 48ILSAT5 1 appear in -- with the exception of 1077X. There are five more 2 calls that come immediately after that before we come up to 3 1317D. And then we go back to 1300 calls for another five 4 calls. 5 MR. BARKOW: Your Honor, that list that I provided to 6 you is not actually in chronological order. It's in exhibit 7 number order. I think I now understand the Court's question. 8 There are one, two -- there are two calls that are in evidence 9 before we get to a call that is on the DVD about which Agent 10 Kerns would testify. That's one, and -- there's that call. 11 Then there's one, two, three, four -- 12 THE COURT: Aren't you going to deal with those calls? 13 MR. MORVILLO: Your Honor, the call that's on 1317 is 14 the third part of a five-part transcript -- I'm sorry, the 15 third part of a four-part transcript of one call. So there is 16 two seconds of the call -- 17 THE COURT: Can't we move on to the next call and skip 18 over the call from 1317? Does it throw the -- the argument is 19 made to me that it really doesn't make a difference what the 20 timing of the cross is, but if we take a couple of telephone 21 calls out of strict chronological order, that can be a problem. 22 MR. MORVILLO: I guess it depends on how quickly we 23 can resolve the problem of whether Mr. Kerns can be 24 cross-examined. We have a number of calls that are on DVD 1317 25 that are in chronological order prior to the May, 2000 prison SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4692 48ILSAT5 1 visit. We were expecting to get to that prison visit sometime 2 tomorrow afternoon. 3 MR. BARKOW: Just to be specific, your Honor, of the 4 14 calls -- or 14 transcripts that are before the May, 2000 5 visit -- and I say transcripts because, as Mr. Morvillo has 6 said, four of them constitute one call -- of the 14 7 transcripts, five are on the DVD that Agent Kerns would testify 8 about. 9 MS. BAKER: Your Honor, may we have one minute just to 10 confer with each other? 11 THE COURT: Sure. 12 (off the record) 13 MR. MORVILLO: Your Honor, we'll -- hopefully we can 14 resolve this issue before we resume tomorrow. We'll go 15 forward. And that -- regarding the chronology of our evidence. 16 MS. BAKER: Your Honor, when and where would you like 17 somebody to provide you the one document to review? Do you 18 want somebody to hand it to the courtroom at the end of the 19 proceeding or do you want someone to bring it to the chambers? 20 THE COURT: To the chambers this evening will be fine. 21 And we can talk about it after the jury has left for the day. 22 MR. RUHNKE: Just one issue, which is that we've been 23 perhaps lax in not requesting limiting instructions as these 24 tapes are being played. The last couple of conversations were 25 relevant to only Counts 2 and 3. And one suggestion would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4693 48ILSAT5 1 that when the government does offer something only for a 2 limited purpose, rather than have us start to stand up and say 3 what's this being offered for and who's this being offered 4 against, that the government alert us. 5 MR. BARKOW: Your Honor, the set of four calls, one of 6 which is a current call, that we're going to start now and then 7 go through all are regarding Counts 2 and 3. 8 MR. RUHNKE: As were the prior two. 9 MR. BARKOW: Definitely the prior one. I'm actually 10 looking for a transcript of the one before that. 11 MR. RUHNKE: We'd be satisfied with an instruction 12 that the last and the next series of calls are all regarding 13 Counts 2 and 3. 14 MR. BARKOW: 1072 is the one we just finished and 15 that's also offered with regard to Counts 2 and 3. And the 16 next one is 1074; that's also Counts 2 and 3. The next is 17 1075; that's also Counts 2 and 3. We will not make it past 18 that by any stretch today, because 1075 is 38 pages, so... 19 THE COURT: All right. 20 MS. BAKER: Your Honor, if I might be excused to 21 continue trying to address the issues relating to the 22 declassification. 23 THE COURT: Thank you. 24 MS. BAKER: But if your Honor does wish to hear 25 further about the document -- I've essentially made my argument SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4694 48ILSAT5 1 which is that it only relates to the production of the 2 discovery disks. If your Honor wishes to hear further at the 3 end of the day, when the jury leaves, if someone would just 4 page me, I'll come back. 5 THE COURT: Thank you. Okay. Government Exhibit 1072 6 and 1073 is offered only -- 7 MR. BARKOW: 1072 is what we just read, is -- goes to 8 Counts 2 and 3. 1074, which is the one we're going to do now, 9 goes to Counts 2 and 3. And to be precise, 1071 which is the 10 one right before 1072, went to Count 1. It was discussion of 11 the SAMs. So I don't think -- I think Mr. Ruhnke made a 12 misstatement to that particular call. 1072 is a 38 or so page 13 transcript we just read. 14 THE COURT: Mr. Ruhnke's last statement was he's 15 satisfied with an instruction with respect to 1072 and, at this 16 point, 1074. 17 MR. BARKOW: Okay. 18 THE COURT: Okay. Bring in the jury. 19 MR. MORVILLO: Your Honor, 1075 -- 1074 is a two-page 20 transcript. So it will take maybe a minute to read. The next 21 one, 1075, is a 38-page transcript, and we clearly will not 22 finish that. 23 THE COURT: But we can start. 24 MR. MORVILLO: We certainly can. 25 THE COURT: And that's also to Counts 2 and 3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4695 48ILSAT5 1 MR. BARKOW: That's correct. 2 MR. MORVILLO: That's correct. 3 THE COURT: We kept the jury a little late yesterday, 4 so we'll try to only keep them to 4:45 today. 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 4696 48ILSAT5 1 (Jury enters the courtroom) 2 (In open court) 3 THE COURT: All right. Please be seated, all. 4 All right. Ladies and gentlemen, we'll go till 4:45, 5 and let me just give you a couple of limiting instructions: 6 You just heard Government Exhibit 1072X. Government 7 Exhibit 1072X is offered only with respect to Counts 2 and 3 of 8 the indictment. 9 And the next two exhibits, Government Exhibits 1074 10 and 1075, are also offered only with respect to Counts 2 and 3 11 of the indictment. 12 All right. 13 MR. BARKOW: Your Honor, at this point we'd request 14 permission to put on the screen and to read to the jury 15 Government Exhibit 1074X, which is in evidence. 16 THE COURT: All right. 17 MR. BARKOW: This is a call, your Honor, on April 24th 18 of 2000 at 5:49 a.m. Mr. Forkner, if he would step forward, 19 will read the lines of Ahmed Abdel Sattar, and Mr. Dember will 20 read the lines of Mustafa Hamza. 21 THE COURT: All right. 22 (At this point, Government Exhibit 1074X, in evidence, 23 was displayed and read to the jury) 24 MR. BARKOW: Your Honor, at this point the government 25 requests -- actually, the government offers into evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4697 48ILSAT5 1 Government Exhibit 1075X. 2 THE COURT: All right. Subject to the limiting 3 instruction, and with no objections. 4 (Government's Exhibit 1075X received in evidence) 5 MR. BARKOW: At this point, your Honor, the government 6 would ask permission to read and publish to the jury 7 Exhibit 1075X. This is a continuation -- I take that back. 8 This is a call on April 24th of 2000 at 5:45 a.m. Mr. Dember 9 will read the lines of Mustafa Hamza. Ms. Griffith will read 10 the lines of Hani and Dr. Isma'il. And I will read the lines 11 of Alla Abdul Raziq Atia. 12 THE COURT: Okay. 13 (At this point, Government Exhibit 1075X, in evidence, 14 was displayed and read to the jury) 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4698 48iesat6 1 THE COURT: Whenever there's a convenient time. 2 MR. BARKOW: I think we can stop here. 3 THE COURT: Ladies and gentlemen, we will break for 4 the day. As always, please remember my continuing 5 instructions. Please don't talk about the case or anything to 6 do with it. Please remember not to look at or listen to 7 anything to do with the case. If you should see or hear 8 something, just turn away. 9 Remember always to keep an open mind until you've 10 heard all the evidence, I've instructed you on the law and 11 you've gone to the jury room to begin your deliberations. 12 Fairness and justness to the parties require that you do that. 13 With that, have a very good evening and I look forward 14 to seeing you tomorrow morning. 15 (Jury excused) 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4699 48iesat6 1 (In open court; jury not present) 2 THE COURT: Please be seated, all. 3 Juror No. 3 asked if they couldn't leave at 4:30 4 tomorrow, and she has a train to catch. Of course I'll try to 5 do it at 4:30. One reason I stayed a little later today was 6 because of the amount of time that we lost with legal 7 arguments, and it was less jury time than usual. We also have 8 lost time yesterday, and that's a concern to me. 9 So, please be here at 9:00 tomorrow morning. 10 Is there anything else for me at this point? Yes. 11 MR. BARKOW: Your Honor, we don't need to do this now, 12 unless -- I guess unless the Court is going to want additional 13 information about 2024 and 2024T. I think that it's likely, or 14 at least highly probable, that we would get there sometime in 15 the afternoon. We certainly won't get there the first thing. 16 We don't need to discuss it now. If the Court needed 17 additional information, we would seek a ruling on that either 18 today or tomorrow morning. 19 THE COURT: Well, I've received the government's 20 letter on 2024. 21 MR. TIGAR: Yes, your Honor. I stated our position 22 orally and I don't have anything to add to that, except to 23 note, if I did not, that the original Arabic document has a fax 24 line at the top of it on the right-hand side which is S.2. It 25 is my understanding that that means page two, which is a basis SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4700 48iesat6 1 for my assertion that this is not a complete document. 2 Now, the government, Mr. Barkow, I think, disagrees. 3 He says it is a complete document, to which I can say, well, I 4 don't think it is, but I think that the fact that two lawyers 5 are having a dispute about it speaks to this question of 6 authentication. I guess we just, you know -- 7 THE COURT: That would -- the fact that two lawyers 8 have a discussion about it would suggest that it is for the 9 jury ultimately to decide what weight to give to the document, 10 if the document that appears here is sufficiently authenticated 11 for admissibility. 12 Which leads to the next question: When this document 13 was found in Mr. Sattar -- in the Sattar search, was it a 14 single document, or was it attached to something else? 15 MR. BARKOW: It was a single document, your Honor. It 16 is in the form -- I think -- I think now I understand what 17 Mr. Tigar's point was. I didn't understand it completely 18 yesterday. 19 It was found as a single document. And indeed, it 20 does say S.2 at the top, but it was found in this form. And so 21 it's unclear, but that's the way it was kept. And so I think 22 that that sufficiently authenticates it. And I admit I'm 23 speculating, but given the way faxes are typically accompanied 24 with cover sheets, I think that it's a reasonable conclusion, 25 if not an inevitable one, certainly, that the first page might SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4701 48iesat6 1 have been a cover sheet. 2 MR. TIGAR: Your Honor, may I respectfully disagree 3 with your Honor's characterization of the authenticity issue. 4 Authenticity, as I understand it, is that the opponents prove 5 what it is, what it is claimed to be. If it is claimed to be a 6 document, then that's one thing. If it is claimed to be a part 7 of a document, that is something else. Because in the rules of 8 evidence, document and part of document, they have 9 significance, both in terms of the original writings rule and 10 in terms of the policy at least behind Rule 106. 11 Also, when making the hearsay determination, obviously 12 the -- there are underlying reliability issues that have to do 13 with whatever doubt there is. That's all I was saying, your 14 Honor. 15 THE COURT: OK. Government Exhibit 2024 and 16 Government Exhibit 2024T, this is a document found in the 17 search of Mr. Sattar's home. On its face it is a statement in 18 Arabic by various persons calling on Sheikh Omar Abdel Rahman 19 to support the initiative after a message to study. There is a 20 fax line at the top indicating that it was faxed on January -- 21 it appears to be January 20, 2000, at 1457. 22 Defendant objected on grounds of hearsay, relevance 23 and authenticity. With respect to hearsay, the government 24 asserts that it is not offered for the truth of any of the 25 assertions in the statement. The government indicates that a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4702 48iesat6 1 limiting instruction would be appropriate and, in fact, the 2 Court would give a limiting instruction that the document is 3 not offered for the truth of any assertions in the document. 4 The statement is not hearsay when offered and received not for 5 the truth of the assertions in the document. 6 The statement is relevant because of the existence of 7 the statement directed to Sheikh Rahman, and given its context 8 and content, and given the fact that Mr. Sattar had it supports 9 the existence of the conspiracy charged in Count 1 and supports 10 the existence of Mr. Sattar acting as a conduit for messages to 11 Sheikh Rahman. 12 The authenticity is satisfied sufficient for its 13 admissibility and its consideration by the jury, given where it 14 was found taken together with its contents and context. And I 15 will give them that instruction. 16 All right. Anything else? 17 MR. BARKOW: Not from the government, your Honor. 18 MR. TIGAR: No, your Honor. 19 THE COURT: OK. 20 MR. PAUL: Your Honor, I think you misspoke in your 21 ruling. It was June 20th, not January 20th, according to the 22 fax I'm looking at. 23 THE COURT: My copy is a little cut off. 24 MR. BARKOW: It is June, your Honor. 25 THE COURT: OK. Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4703 48iesat6 1 See you all at 9:00 in the morning. 2 (Adjourned to Thursday, August 19, 2004, at 9:00 a.m.) 3 o 0 o 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 4704 48iesat6 1 GOVERNMENT EXHIBITS 2 Exhibit No. Received 3 1063X, 1065X, 1066X, 1068X, 1070X, 1072X, 3 1074X, 1078X, 1080X, 1081X, 1082X, 1083X, 4 1105X, 1106X, 1109X, 1110X, 1113X, 1118X, 4 1147X, 1149X, 1150X, 1152X, 1160X, 1164X, 5 1172X, 1173X, 1174X, 1176X, 1177X, 1196X, 5 1197X, 1251X, 1260X, 1261X, 1262X, 1263X, 6 1264X, 1265X, 1266X and 1267X . . . . . . . 4647 7 1707C2 and 1706C2 . . . . . . . . . . . . 4666 8 1075X . . . . . . . . . . . . . . . . . . 4697 9 INDEX OF EXAMINATION 10 Examination of: Page 11 NOEL HEROLD 12 Direct By Ms. Baker . . . . . . . . . . . . 4655 13 Cross By Mr. Tigar . . . . . . . . . . . . . 4664 14 Redirect By Ms. Baker . . . . . . . . . . . 4667 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300