4705 48JJSAT1 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 19, 2004 8 9:20 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 and a jury 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 4706 48JJSAT1 1 (Trial resumes) 2 (In open court; jury not present) Mr. Barkow, 3 THE COURT: Good morning, all. Please be seated. 4 MR. TIGAR: Good morning, your Honor. 5 We have spoken now to Ms. Stewart. It is another one 6 of those Brooklyn Bridge issues. However, we believe that she 7 expects to be here within five minutes. 8 Under Federal Rule of Criminal Procedure 43 (b)(3), we 9 believe the court can proceed in her absence, and I'll state 10 for the record that we waive her presence under that rule for 11 that purpose, and I am sure that she'll repeat that when she 12 arrives. 13 THE COURT: All right. Is that satisfactory to the 14 government also? 15 MS. BAKER: Yes. 16 THE COURT: We are just dealing with matters of law, 17 and I wouldn't proceed without a waiver from the defendant in 18 any event, but I see the defendant's presence is not required. 19 In any event, it is waived. 20 The first issue for me this morning is the additional 21 document which I was given. I received the government's August 22 18 letter concerning an internal classified FBI memo of Special 23 Agent Kerns. I also received and reviewed the government's 24 supplemental August 18th letter concerning three Lockheed 25 Martin tapes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4707 48JJSAT1 1 I agree generally that the classified memo does not 2 relate to the subject matter of Agent Kerns' testimony because 3 it relates to a problem that affected discs produced in the 4 course of discovery rather than the trial DVDs. 5 However, I have also reviewed Agent Kerns' direct 6 testimony and understand that during his continuing testimony, 7 he will testify about his trip to Minnesota to take various 8 tapes. There are a few statements in the course of the memo 9 that do relate to subject matters about which he testified or 10 is proposing to testify. Preliminarily, I note that the memo 11 refers to obtaining closure, which I have not seen and so do 12 not know if it is covered by 3500. 13 On Page 2 of the memo, in Paragraph 1, there is one 14 sentence that refers to taking the tapes to Minneapolis. In 15 Paragraph 2, there is one sentence that refers to loading the 16 MO's on to the five servers, which was a subject of direct 17 testimony. 18 On Page 3, the third paragraph deals generally with 19 the production of recordings in the pretrial process, which is 20 not a subject of Agent Kerns' direct testimony and was the 21 subject of the motion in limine. But the second through 7th 22 sentences deal with the government's letter of last night 23 concerning three tapes taken to Minneapolis, and the 7th 24 sentence deals again with the five servers. It also appears 25 that the last sentence of the paragraph which appears on Page 4 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4708 48JJSAT1 1 relates again to the same three tapes. 2 The government made disclosure last night relating to 3 an issue covered in the sentences. All of this appears to be 4 prior statements relating to the trip to Minneapolis with the 5 tapes and would be producible, although one reference in the 6 sentences refers to a number of calls. That does not appear to 7 relate to the subject matter of the testimony and could, 8 therefore, if desired, be redacted. 9 There has been no CIPA application, and the document 10 was simply presented to me as the other document for the 11 purposes of 3500. My brief description of the brief nature of 12 the references obviously leaves open any CIPA applications. 13 Again, it is not a question of any Brady material. 14 I will deal then with the question of procedure. As I 15 explained yesterday, it would make sense to have Agent Kerns 16 recalled, if necessary, after any disclosures of the relatively 17 limited Jencks material is resolved because this may involve 18 declassification or other CIPA procedure, but in suggesting 19 that yesterday, I believe I was careful to say if the parties 20 agree, Agent Kerns' testimony can proceed. 21 The redactions are extremely minor, and it will be 22 seen could not reasonably affect the substance of Agent Kerns' 23 testimony. Agent Kerns would remain subject to recall in the 24 unlikely event the parties thought he should testify with 25 respect to the redactions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4709 48JJSAT1 1 There are now additional items from the additional 2 memo. In any event, Defendant Stewart objects to that 3 procedure and stands on the right under the Jencks Act to have 4 the materials produced prior to cross-examination. In the face 5 of the objection to the procedure set out under statute 6 governed, the issues of production should be solved prior to 7 the time that the defendant is required to cross-examine. The 8 Jencks Act contemplates adjournments prior to 9 cross-examination. 10 In terms of trial procedure, I'll certainly listen to 11 the parties, but I believe that we should proceed with the 12 calls and other evidence as to which the further testimony of 13 Agent Kerns is unnecessary. 14 I've already granted an unusual number of adjournments 15 to satisfy the effort for a chronological presentation of the 16 evidence, and it would not appear to be that the number of 17 calls that depend upon Agent Kerns introducing the additional 18 calls is so significant as to warrant an adjournment in order 19 to resolve these issues rather than to continue with the 20 evidence as to which Agent Kerns' testimony is not necessary, 21 further testimony is not necessary. 22 Ms. Baker. 23 MS. BAKER: Your Honor, the government expects to have 24 resolution this morning on the unredaction of the portions of 25 the existing pieces of 3500 material that your Honor ruled on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4710 48JJSAT1 1 yesterday. 2 The government at this time makes an application to 3 the court under the Classified Information Procedures Act as to 4 the latest classified document in front of the court, and that 5 application is that the court deem the disclosures that the 6 government has already made in this case in various forms, 7 including the letters that the court has in front of it, deem 8 those other disclosures as unclassified substitutions that 9 provide the necessary substance of the portions of the 10 classified document that your Honor has addressed. 11 I believe that all of the portions that your Honor has 12 addressed are covered in other disclosures, although I confess 13 I don't have the classified document front of me to be able to 14 follow along with your Honor's references because I am not 15 allowed to bring it to court with me. 16 Based on your Honor's descriptions, I believe the 17 substance of all of the parts that your Honor identified have 18 been disclosed either in the direct testimony of Agent Kerns or 19 letters written by the government or other documents that the 20 government has already produced, and so where there is no 21 additional content that would provide any basis for 22 impeachment, any basis for making any different use of 23 information that the defense already has in some form, the 24 government submits that an unclassified substitution should be 25 deemed as appropriate and fulfilling any right that the defense SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4711 48JJSAT1 1 has to those selected pieces of information as to the 2 classified document. 3 THE COURT: I have a couple of observations. 4 The letter, the supplemental letter with respect to 5 the additional disclosure came about 10:00 o'clock last night, 6 and I can't, I can't second-guess the parties. All I can do is 7 to accept what they give me when they give it to me. 8 I was asked to review the document for the purposes of 9 the Jencks Act. Getting that letter at 10:00 o'clock last 10 night, one could suspect that rather than simply tell me that 11 on reflection there are statements in the letter that we think 12 would be covered under the Jencks Act, but we are going to 13 invoke the procedures under CIPA, the government let me go 14 forward with a careful, thorough analysis as to what could 15 possibly reasonably be considered as covered by the Jencks Act, 16 only to be told that now we're going to invoke CIPA. 17 A better course would have been to say we've gone over 18 it and we think these are the statements that are covered by 19 the Jencks Act and we invoke CIPA rather than to say, as the 20 first letter said, we don't think it is covered by the Jencks 21 Act and it is not tracked in the second letter. The second 22 letter said, by the way, here is some additional disclosure. 23 Second, I don't make these decisions without careful 24 review of them, and having been given a list, I would expect 25 the government would look at the document and look at the list, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4712 48JJSAT1 1 and as you suggested in the last submission which I referred to 2 with the last document, point out, okay, here's, here's the 3 issue, here's where prior disclosure is made. Therefore, no 4 additional disclosure is necessary under CIPA. 5 Now, I've described, even though the document is 6 classified, I believe I was reasonably able to describe what 7 the individual citations are. When I explained my decision, I 8 indicated the course. I was open to applications under CIPA 9 because, you know, this is not Brady material, and I fully 10 appreciate that. 11 I have gone over the document and come up with 12 statements that I recognize do not differ from some other 13 statements already out there, but I would expect that you would 14 at least take what I say and then make a CIPA application in 15 the letter. 16 If the defendants have an objection, we can do it 17 promptly, particularly having not raised it prior to this 18 morning, even though one suspects that the reason for the 19 disclosure last night was precisely you expected that that 20 would be resolved. 21 You should at least do it in a letter, and the 22 defendants can give me a response quickly. I am not even sure 23 that they will want to respond to the letter, but it is 24 something I really do have to consider. So I just want you to 25 look at what I said and give me a letter invoking CIPA and say SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4713 48JJSAT1 1 that this is a case where the government is not going to 2 attempt to be questioned by any part of the document, but 3 rather simply say no further disclosure is necessary because 4 disclosure of these items is already made, and the defendants 5 can if they wish object, and we can do it very quickly. 6 I have no desire to encourage adjournments. I didn't 7 want adjournments. 8 MR. TIGAR: Your Honor, we have nothing to add. We'll 9 await the government's next application. We, too, received the 10 letter last night after 10:00 o'clock about the three Lockheed 11 Martin tapes. 12 In the third of those tapes, I believe there is a 13 typo. I think it is 99179031. I think there is an extra 9 in 14 the letter. If that is the case, that is the Lockheed Martin 15 tape on which a call that is on Government Exhibit 1300 in 16 evidence is contained, specifically 1018 T, and that is also 17 the DVD that we referred to yesterday that was involved in the 18 sealed order. 19 So I was confused by the letter because, if I read the 20 letter correctly, the calls on 99179031 were first converted, 21 and I couldn't find in the Jencks material any record of the 22 conversion specifically, so I'm assuming that was the 23 conversion process to which Agent Kerns testified when he was 24 here the second time and using the same procedure that was 25 described the first time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4714 48JJSAT1 1 Then apparently the original conversion did not 2 provide the number of audio cuts believed to be on the tape. I 3 don't know how many cuts were thought to have not been 4 recovered on that conversion, but that, of course, is not a 5 subject that was raised when the particular call, 1018 T, was 6 authenticated. 7 The trouble with this conversion process is as the 8 electronic folks at Quantico referred, ERF, 3525 X, there is no 9 external database of tape contents, according to the FBI, so 10 there is only internal verification. 11 Whether that is so or not, these tapes were then taken 12 to Minneapolis for imaging, and that resulted in something, and 13 again I can't tell from what I have if 1018 T -- I can't tell 14 from what I have where 1018 T was in these various conversions. 15 I raise that with the court because I have these 16 questions, and when Agent Kerns eventually appears, we can 17 clarify it. There appears to be a disconnect between the 18 authenticity foundation of at least the 1018 T portion of 1300 19 and what is now revealed by this letter. 20 THE COURT: Ms. Baker. 21 MS. BAKER: All documents relating to these issues 22 have now been either disclosed to the defense or presented to 23 the court. To the extent Mr. Tigar has questions not covered 24 by the documents, he is, of course, able to cross-examine Agent 25 Kerns about them when Agent Kerns testifies. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4715 48JJSAT1 1 Everything that Mr. Tigar just said boils down to the 2 fact that there were issues retrieving from the one tape that 3 yielded the one call, Government Exhibit 1018, there were 4 issues retrieving from that tape other calls, but 1018 was 5 retrieved at some point, and 1018 was produced in discovery at 6 some point, and it is on the trial DVD, and Mr. Tigar has it 7 and he has the SRI in it that shows what it is. 8 And so the issue of what else was or wasn't retrieved 9 from that tape wasn't the subject of Agent Kerns' direct 10 testimony because, as we've tried to make clear all along, 11 although the government acknowledged in pretrial discovery 12 there was a certain very small percentage, about 2 percent of 13 unretrieved pertinent calls, obviously the government is not 14 using any unretrieved calls in evidence. We are only using 15 certain of the calls that are retrieved. 16 I understand Mr. Tigar's concern, but all I can say is 17 there are no other documents that relate to it, and that 18 concern does not affect any ruling as to the authenticity of 19 that one call, Government Exhibit 1018, and it certainly 20 doesn't bear on any authenticity of any other calls. 21 THE COURT: All right. I issued an order this 22 morning, detailing my reasons, that I was overruling the motion 23 to quash the Salaheddin subpoena, and I faxed that out probably 24 after all of you left your offices. 25 Okay? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4716 48JJSAT1 1 MR. BARKOW: Your Honor, with respect to the calls on 2 the DVD that is at issue in Mr. Kerns' testimony, we would make 3 one other application and ask the court to consider this, and 4 that is to admit the transcripts of the calls preceding the May 5 2000 prison visit subject to connection, that is, subject to 6 the admission of trial DVD 1317, which is the DVD that is going 7 to be the subject of Agent Kerns' testimony. We make that 8 application for this reason: 9 That is, that we believe that it is extremely 10 unlikely, given that the testimony about that DVD is going to 11 be substantially similar if not identical to the testimony 12 about prior DVDs. The objections to the DVD are going to be 13 substantially similar if not identical, and the court has ruled 14 that the other DVDs are admissible. 15 We submit the probability of the DVD 1317 coming into 16 evidence is extremely high, and the objections go to weight and 17 not admissibility. Of course, if in the end the DVD doesn't 18 come into evidence, then the evidence would and should be 19 stricken and the jury could be instructed to disregard that 20 evidence. 21 The government would even consent to a forceful 22 instruction that -- we can talk about the contours of that. We 23 would bear the cost, we would submit, of those calls not coming 24 into evidence. We would propose that those transcripts be 25 admitted subject to connection and then when Agent Kerns comes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4717 48JJSAT1 1 and is fully cross-examined, if the court deems that DVD 2 admissible, then we continue to proceed. If the court deems 3 the DVD inadmissible, appropriate instructions and steps could 4 be taken. 5 Furthermore, your Honor, it may also be likely, if in 6 the end 1317 doesn't come into evidence, it may spill over, the 7 issues can spill over with other DVDs. This issue, it seems to 8 be inextricably related to the three or four, however many 9 other DVDs we are up to at this point. That seems to be 10 related and the determinations seem to follow one another. We 11 make this proposal to admit at least the limited calls that 12 precede the May 2000 prison visit, the subjects of those calls 13 subject to connection. 14 MR. TIGAR: First, your Honor, the information against 15 whom is this call offered? 16 MR. BARKOW: Which call? 17 THE COURT: The request relates to all the calls on 18 1317. 19 MR. BARKOW: Okay. If I can take them one at a time. 20 The first is -- 21 THE COURT: Hold on. 22 (Pause) 23 MS. BAKER: For the record, while you're finding your 24 other materials, I received newly declassified, less redacted 25 versions of Government Exhibits 3525 W through 3525 A1, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4718 48JJSAT1 1 although I would note that they're stapled together out of 2 alphabetical order, but I'm going to distribute those to the 3 parties and hand it up to the court. 4 THE COURT: Thank you. 5 (Pause) 6 THE COURT: Okay, I have the list of calls. 7 MR. BARKOW: Yes, your Honor. Again, that list should 8 contain all of the calls I'm going to speak about right now. 9 It might be easier to take it one at a time. 10 The first one that is on DVD 1317 is 1077, and the 11 transcript is 1077 X. That is offered solely to counts two and 12 three. In fact, that is a continuation of the same 13 conversations that we have been reading or in the process of 14 reading right now. It just so happened that ended up on a 15 different DVD. With respect to that call, we submit that that 16 call, we submit the authenticity issues perhaps are satisfied 17 by the fact that the DVD 1300 which contains the rest of the 18 parts of that call are satisfied. 19 1077, as I said, is part of this four or five call 20 series, and that series is offered solely to Counts 2 and 3. 21 The next call that is part of that DVD 1317 is -- 22 THE COURT: Could I just stop you for one moment. 23 I should have noted before Ms. Stewart was here and 24 has been for some time. Ms. Stewart, in your absence, 25 Mr. Tigar waived your presence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4719 48JJSAT1 1 DEFENDANT STEWART: Thank you, Judge. I am sorry. 2 THE COURT: No. That is all right. 3 DEFENDANT STEWART: That is absolutely fine, Judge. 4 Thank you. 5 THE COURT: Go ahead, Mr. Barkow. 6 MR. BARKOW: Yes, your Honor. 7 With respect to the first call, as I said, it is part 8 of the four or five transcript series that constitutes one 9 call. The other parts of that call are already in evidence. 10 It just so happens that this one part is on a different trial 11 DVD. 12 THE COURT: 1077? 13 MR. BARKOW: That is 1077, yes. 14 The next set is -- it is best, I think, to speak about 15 it as a set because it is one call. 1084, 1085, 1086 and 1087, 16 those are all on 1317, but as a whole, we submit they raise one 17 authenticity issue. 18 So they are offered, though, against all defendants 19 with respect to all charges. It is a call that occurs on May 20 17th of 2000, just two days before the prison visit, and parts 21 of it contain conversation, and I don't have familiarity, as I 22 stand here right now, with every detail of these calls, but 23 looking at them quickly this morning, parts of them contain 24 conversations involving Taha about the initiative and about the 25 desire to communicate with an Abdel Rahman about it. Just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4720 48JJSAT1 1 before the prison visit, that is being discussed with Taha. It 2 is a long call, though, so I am not purporting to summarize in 3 any way the whole call. 4 So that will be the next set, and that is it, but that 5 is a four-transcript call. Really I think there are two 6 telephone calls at issue. They just happen to fall on five 7 different transcripts, and as to the one stand-alone, 1077, it 8 is part of a call, the rest of which has already come into 9 evidence. 10 MR. PAUL: Excuse me, your Honor. I am looking at 11 what was handed to us yesterday, which is 1317 and continues 12 onto the next page. It involved further transcripts. 13 MR. BARKOW: It does, your Honor, but those are all 14 after the May 2000 prison visit. 15 MR. PAUL: I would object to these being introduced 16 subject to connection till the actual audios are, in fact, 17 introduced into evidence and admitted. 18 THE COURT: All right. I'll agree with that 19 objection. Even as you describe it, these calls are not such 20 that the jury could not, having heard them later, place them in 21 context given the dates of the calls, particularly with what 22 the jury will have heard before and presumably during the text 23 or the evidence with respect to the prison visit. 24 "Subject to connection" is done when it's a reasonable 25 requirement for trial management, particularly with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4721 48JJSAT1 1 co-conspirator statements that depend upon a lot of evidence, 2 and you can correct me if I'm wrong, but when the issue is 3 really some authentication testimony that can reasonably and 4 discretely be given, it is by no means the general, general 5 practice to let that in subject to connection. 6 MR. BARKOW: Your Honor, I don't know. 7 Certainly "subject to connection" is employed more 8 frequently with co-conspirator statements. I guess I could 9 submit that actually this is a simpler question than 10 co-conspirator statements and perhaps it militates more for a 11 subject to connection ruling here because the court has already 12 ruled essentially on this issue three times and has a lot of 13 information about this, while in the co-conspirator context, 14 the whole case might need to develop so the court can get 15 information that it just can't get all at once. 16 THE COURT: Yes, that's why the subject to connection 17 is reasonably called for, because of the extensive evidence 18 that is necessary in order to finally -- that is not the case 19 with authentication testimony, or at least this authentication 20 testimony. 21 MR. BARKOW: My point, your Honor -- 22 THE COURT: And how do you explain to me what is on 23 these tapes? 24 I fully appreciate the desire for a chronological 25 presentation, but there is an objection to doing it that way, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4722 48JJSAT1 1 and the objection is reasonably well taken and hardly is a 2 matter that the jury could not reasonably deal with in terms of 3 the chronological presentation, not to hear that where it 4 otherwise comes in chronologically. 5 Next? 6 MR. TIGAR: Your Honor, there is a matter as to which 7 I think we can save some jury time here, and that is that we 8 have been tendered now the visit to Minnesota transcripts of 9 those videotapes, and as the court may recall, substantial 10 portions of the May 19th and 20th visits were in English, and 11 those will be played for the jury. 12 Government counsel and defense counsel -- principally 13 counsel for Ms. Stewart -- have had many discussions about how 14 the English language portions of the transcript would be 15 sponsored to be placed before the jury. As for this 16 transcript, the May 19th or 20th, unlike the one for February, 17 the parties do not say that the English language transcript is 18 in evidence. Rather, the English language portion is, as under 19 the traditional rule, simply an aid to the jury. 20 We are satisfied with the English language transcript 21 almost in its entirety. The point of disagreement is at Page 22 27 of what has been tendered to us as 1706 X, that is, didn't 23 Ms. Stewart say that is very sad or is it unintelligible. 24 Last night a number of government counsel and Ms. 25 Hassanein, the paralegal, listened to the recording. I hope I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4723 48JJSAT1 1 am not misrepresenting, and Mr. Morvillo can correct me if I am 2 wrong. Mr. Morvillo left us a message that different 3 government lawyers heard different things. None of them heard 4 "that's very sad" and so they decided to go with 5 "unintelligible" for that part, and that they were going to put 6 Ms. Hassanein on the stand to say what she heard. 7 First, we don't think a sponsoring witness is even 8 proper with respect to a transcript that is going to simply 9 help the jury. Even if it were, we would have a problem 10 because Ms. Hassanein's ears are the same as everybody's ears, 11 and the way she did her transcripts was to be provided with 12 something by Ms. Baker or another lawyer, look at it on the 13 screen and then listen to it. So there is an element of 14 suggestibility about the process, which would lead to either 15 exclusion or a lot of cross-examination and, quite frankly, a 16 waste of time. 17 Our proposal which we made to the government and which 18 they rejected is that with respect to this page and this page 19 only, that the court do what in my experience has been done in 20 other cases, we simply split the item at that line and put 21 "government version" and "defense version," and what the jurors 22 hear is what they hear. It does seem to us unfair to take what 23 is essentially a non-evidentiary aid to the jury, have the 24 government present to the jurors to look at their view of it 25 and make us wait until our case to put our version of an aid to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4724 48JJSAT1 1 the jury. 2 Because this is not evidence, it is not literally 3 covered by Rule 106, but the same cognition issue that Rule 106 4 addresses. Our proposal is that that page be amended, and if 5 that is done, your Honor, we don't need any witnesses, Ms. 6 Hassanein doesn't need to come to say how she did it, it just 7 goes in. 8 THE COURT: Hasn't the Court of Appeals indicated that 9 if there is a dispute with respect to transcripts, the jury 10 should be given both transcripts about the same time so that 11 they can just listen? 12 MR. MORVILLO: I am not sure that the second part of 13 what your Honor just said is right, "at the same time." 14 Certainly they should be provided with competing versions, but 15 I'm not sure it is a contemporaneous presentation. So I'm not 16 positive about that. 17 I have looked at the law on this issue, your Honor, 18 and I couldn't find anything that said it was contemporaneous. 19 THE COURT: We're not there yet. Let me consider it. 20 MR. TIGAR: That is the reason I raised it, so there 21 would be some note of it. I couldn't remember. Mr. Habib has 22 left the room and should come back with some sort of answer. I 23 wanted to flag it for the court because I think it is something 24 that could be useful. 25 MR. MORVILLO: I just wanted to correct one point that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4725 48JJSAT1 1 Mr. Tigar made, and that was that we don't intend to put Ms. 2 Hassanein on the stand and have her say, with respect to this 3 attribution, what did you hear. 4 We were just going to put her on the stand to have her 5 testimony about the process that she used to prepare the 6 English portions of the transcripts. We were not going to 7 argue through her testimony that there was one particular 8 attribution or not. That is why we believe that the 9 "unintelligible" is not argument one way or another. It leaves 10 the issue open for the government to argue what the jury should 11 hear there and the defense to argue what the jury should hear 12 there. 13 To put in the defense suggestion, when it is, in my 14 opinion, unintelligible, is unfair argument by the defense in 15 the government's case. That is why we have resisted that 16 application at this time. 17 MR. TIGAR: I will say that I listened to it, 18 Mr. Habib, Ms. Shellow-Lavine and Mr. Ruhnke, we really have 19 worked on this a long time. That is the reason for the 20 proposal. If Ms. Hassanein gets on the stand at all, we have 21 to have a long cross-examination about the things that in the 22 end ought to be reserved for -- that is what this is about. 23 THE COURT: All right. It is 10:00 o'clock. 24 Shouldn't we bring the jury in at least to finish the 25 transcript that was left off yesterday before we continue with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4726 48JJSAT1 1 any other issues that the parties have for me? 2 MR. MORVILLO: Yes, your Honor. 3 Your ruling this morning eliminates about a hundred 4 pages of transcript, so we are going to get to the May visit in 5 about an hour or maybe an hour and a half sooner than we 6 otherwise would have. We do have witnesses or at least one 7 witness. If Ms. Hassanein doesn't testify, we'll have 8 testimony before we present that testimony. 9 So we do need to do a little bit of reshuffling here. 10 We certainly can proceed now with the jury with respect to a 11 couple of transcripts and take a little bit of a longer morning 12 break to make sure witnesses are valuable. 13 MR. BARKOW: May I step out for one minute? I will be 14 back very quickly before the jury gets back. 15 THE COURT: Yes. Do the parties want me to take five 16 minutes? I'll take five minutes. 17 (Recess) 18 THE COURT: Please be seated. 19 All right. Shall we bring in the jury? All right, 20 bring in the jury. 21 MR. MORVILLO: Just for the court's scheduling 22 purposes, we have about 83 pages of transcript to read before 23 we get to the May 2000 visit and a few pieces of Sattar search 24 material. 25 I am not sure that will take us through the morning, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4727 48JJSAT1 1 but it will certainly get us through the break, if there is 2 one. 3 MR. RUHNKE: As the transcripts come in today, we 4 would ask your Honor, prior to each transcript, to give the 5 jury whatever limiting instruction is appropriate for each 6 transcript, and when you give a limiting instruction, it is 7 only as to Count 2 and 3. I don't want to you say that means 8 it is only admissible against Mr. Sattar, but I am going to 9 appreciate you saying it should be considered against Ms. 10 Stewart and Mr. Yousry. 11 THE COURT: The government? 12 MR. BARKOW: Your Honor -- 13 (Jury present) 14 THE COURT: Please be seated, all. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4728 48JLSAT2 1 (In open court) 2 THE COURT: Good morning, ladies and gentlemen. As 3 always, it's good to see you all. And again, I appreciate your 4 indulgence while I take care of other matters. 5 All right, Mr. Barkow? 6 MR. BARKOW: At this point, we would request 7 permission to continue reading Government Exhibit 1075X. 8 THE COURT: All right. 9 MR. BARKOW: Your Honor, this call is from April 24th 10 of 2000 at 5:45 in the morning. Yesterday Mr. Dember was 11 reading the lines of Mustafa Hamza, and if he could go back to 12 the witness stand. 13 THE COURT: All right. 14 MR. BARKOW: I am reading the lines of Allah Abdel 15 Raziq Atia, and Ms. Griffith was reading the lines -- okay. 16 May we proceed, your Honor? 17 THE COURT: Yes. 18 MR. BARKOW: Please, go ahead. 19 MR. DEMBER: Line 9, Page 17? 20 MR. BARKOW: I think we're on Line 4. 21 MR. DEMBER: Okay. 22 (At this point, Government Exhibit 1075X, continuing, 23 in evidence, was displayed and read to the jury) 24 THE COURT: It's about 10 to 11:00. Why don't we just 25 take a stretch break? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4729 48JLSAT2 1 (Stretch break) 2 MR. BARKOW: Shall we continue? 3 THE COURT: Yes, please. 4 (At this point, Government Exhibit 1075X, continued, 5 in evidence, was displayed and read to the jury) 6 MR. MORVILLO: Your Honor, at this time the government 7 would request permission to read to the jury and publish to the 8 jury Government Exhibit 1078X in evidence. 9 THE COURT: All right. 10 MR. MORVILLO: May Mr. Forkner come forward and take 11 the witness seat, your Honor? 12 THE COURT: All right. 13 MR. MORVILLO: For the record, your Honor, this is a 14 telephone call from April 24th, 2000 at 6:49 a.m. between 15 Mr. Sattar and Mustafa Hamza. Mr. Dember will read from the 16 lectern. 17 THE COURT: All right. 18 MR. RUHNKE: Are there any limiting instructions as to 19 that call? 20 THE COURT: Why don't we take a 10-minute break? 21 Ladies and gentlemen, we'll take our mid morning 22 break. Please remember my continuing instructions not to talk 23 about the case; keep an open mind. 24 All rise. 25 (Jury exits the courtroom) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4730 48JLSAT2 1 (In open court; jury not present) 2 THE COURT: I thought we could have dealt with it at 3 the break with respect to any instruction that should be given 4 with respect to the transcript. But I certainly am happy to 5 listen to you now. Government Exhibit 1078? 6 MR. BARKOW: Yes, your Honor. 1078 is offered only to 7 Counts 2 and 3. And the next ones we are going to read are 8 offered as to all defendants without limits until we get to 9 1083X, which is offered only to Counts 2 and 3. 10 MR. RUHNKE: Can we just have a list of what those 11 are? 12 MR. BARKOW: Actually, the only two we're going to get 13 to before the May, 2000 prison visit, unless Agent Kerns ends 14 up testifying, are the two that I just listed -- I'm sorry, the 15 only two that we're going to read that have limits, that is, 16 that are limited to Counts 2 and 3, are the two I just listed, 17 1078X and 1083X. The others we are offering without 18 limitation. 19 THE COURT: And 1078X is offered only as to Counts 2 20 and 3? 21 MR. BARKOW: Yes. 22 THE COURT: And 1083X is offered only as to Counts 2 23 and 3? 24 MR. BARKOW: That's correct, your Honor. There are 25 some on 1317 that I can tell the Court now, but we're not going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4731 48JLSAT2 1 to be reading those now. 2 THE COURT: All right. 3 MR. RUHNKE: Yes, your Honor. Just, with a statement 4 these are not to be considered as to Mr. Yousry, those two 5 calls. 6 THE COURT: I'm sorry? 7 MR. RUHNKE: That they're not to be considered by the 8 jury as to Ms. Stewart and Mr. Yousry, those two calls, 1078 9 and 1083. 10 MR. BARKOW: Your Honor, this raises the same issue 11 we've talked about many times with respect to Count 2 being a 12 predicate for Counts 4 and 5. We maintain the same position: 13 That it's sufficient to say that they're offered as to Counts 2 14 and 3, and the Court's final instructions will indicate the 15 interrelationship between Count 2 and the other counts. 16 MR. RUHNKE: We've had this same argument -- not 17 ad infinitum, but at least repeatedly, and your Honor 18 repeatedly said that the limiting instruction is appropriate. 19 THE COURT: It varies, depending upon what the 20 evidence is that's being talked about and based upon what the 21 parties' positions are with respect to the appropriate limiting 22 instructions with respect to particular evidence. 23 There have, in fact, been, in my recollection, 24 relatively few disagreements between the parties as to what the 25 appropriate limiting instruction is with respect to individual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4732 48JLSAT2 1 pieces of evidence. 2 Now, as to this, if the parties -- if the parties 3 disagree with respect to the instruction, then I'll resolve the 4 disagreement. 5 With respect to these calls, I don't have the specific 6 transcripts in front of me. Among the issues would be: Are 7 any of the defendants present for that call? 8 MR. BARKOW: Mr. Sattar connects the call, your Honor. 9 All of these calls that we've read so far, and in fact 10 virtually all of the calls in the entire case with very few 11 exceptions were intercepted on Mr. Sattar's line. 12 MR. RUHNKE: I didn't mean to try to condense the 13 argument earlier. But the government has contended from the 14 start of this case that your Honor should not limit the jury's 15 consideration of Count 2 and 3 evidence as to individual 16 defendants who are not named in Counts 2 and 3 because, per the 17 government's argument, Counts 2 and 3 are the predicate, are 18 necessary predicates, for the Counts 4 and 5 conspiracies. 19 Your Honor has consistently, as I recall, rejected the argument 20 and said, No, it can't be admissible against defendants who are 21 not named in Counts 2 and 3. 22 THE COURT: No. You're telescoping a few arguments -- 23 MR. RUHNKE: Could be. 24 THE COURT: -- and issues. I've said that evidence 25 with respect to Counts 2 and 3 is relevant with respect to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4733 48JLSAT2 1 defendants not named in Counts 2 and 3 because the existence of 2 the conspiracy in Count 2 is a matter of evidentiary 3 significance and relevant to the defendants in Counts 4 and 5. 4 So it's not quite right to say that evidence with respect to 5 counts -- evidence which is offered only as to Counts 2 and 3 6 could not be considered against the other defendants because 7 even if those defendants went to trial without the specific 8 defendant on Counts 2 and 3, the government would be allowed to 9 introduce evidence with respect to the existence of the Count 2 10 conspiracy. 11 I've also said, however, that there is another issue 12 which is the evidence of coconspirators and statements admitted 13 for the truth, and as to that, because of the issues of agency, 14 if offered for the truth, I've given a more elaborate 15 instruction that it couldn't be considered for the truth 16 against people who were not alleged to be coconspirators in the 17 Count 2 conspiracy. And it was received then subject to 18 connection with respect to the defendant in the Count 2 19 conspiracy. 20 MR. RUHNKE: I'm having a sense of déjà vu about the 21 whole conversation. 22 THE COURT: We've had it several times. 23 MR. RUHNKE: Perhaps it's just my failure in 24 recollection, but I thought we had gotten to a point where 25 everybody at least agreed that the -- regardless of positions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4734 48JLSAT2 1 either side advanced, that the ultimate resolution of this was 2 that the Count 2 and 3 conspiracies in essence become a jury 3 instruction issue at the end of the case where the jury is told 4 that in order to even consider whether Ms. Stewart or 5 Mr. Yousry is guilty of Counts 4 and 5, the jury must first be 6 persuaded beyond a reasonable doubt that the conspiracies 7 either in 2 or 3 -- and I'm telescoping right now -- have been 8 proven beyond a reasonable doubt. But that this evidence can't 9 be admissible against people who are not charged in that 10 conspiracy or in those counts. And therefore -- it's all 11 coconspirator hearsay, your Honor. 12 It's not like this is any other form of evidence. 13 It's all coconspirator hearsay, and Ms. Stewart and Mr. Yousry 14 are not even indicted for that conspiracy, and the government 15 does not contend they are members of that conspiracy. The 16 evidence, it seems to me to follow, is not admissible as to 17 Ms. Stewart and Mr. Yousry. 18 If your Honor is satisfied that I'm misrecollecting, I 19 don't want to spend any more time on it. That was my 20 recollection of where we'd gotten to. I was surprised 21 Mr. Barkow stood up and made that, what I thought, was an old 22 argument. If somehow I've missed the boat, I apologize. 23 THE COURT: Never necessary to apologize. 24 MR. RUHNKE: I'm sorry for apologizing. 25 THE COURT: I think my longer explanation is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4735 48JLSAT2 1 correct explanation which I've given before, and if -- in 2 response to the last statement with respect to these tapes, as 3 to coconspirator statements, if that's the objection, then I'll 4 listen to the government. But the instruction would be it's 5 taken subject to connection against Mr. Sattar and cannot be 6 considered for the truth against Mr. Yousry or Ms. Stewart. 7 MR. RUHNKE: Then I'm just recollecting something 8 entirely different than had been our practice. I'll go back 9 and look. I don't know what the government recollects. 10 MR. BARKOW: Your Honor, we think that what the Court 11 had said both in its longer explanation and just now is exactly 12 right. We don't have the same recollection as Mr. Ruhnke. I 13 would just also points out, I think it's relevant to what we're 14 discussing, that in order to prove Counts 4 and 5 we do not 15 need to prove beyond a reasonable doubt the actual existence of 16 Count 2. We needs to prove either its existence or preparation 17 for it. 18 THE COURT: But in any event, that's an issue that the 19 parties raise in connection with the charge. I respond to the 20 point that you make, Mr. Ruhnke, by giving the appropriate 21 hearsay objection that resolves your issue, the hearsay 22 instruction, which is, with respect to both conversations, 23 they're offered only with respect to Counts 2 and 3, and they 24 are received subject to connection with respect to Mr. Sattar, 25 and cannot be considered for the truth of anything that's said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4736 48JLSAT2 1 with respect to Ms. Stewart and Mr. Yousry. 2 MR. RUHNKE: But that doesn't answer the question of, 3 Well, then, for what purpose may they be considered? It 4 implies that there's another purpose for which they may be 5 received as to Mr. Yousry and Ms. Stewart. If not for the 6 truth, generally there's another phrase that follows that: But 7 may be received for X, Y and Z. And I don't see the X, Y and Z 8 in this case. 9 THE COURT: That is -- that's a fair comment with 10 respect to these tapes, these conversations. Why isn't the 11 appropriate instruction then: They're received subject to 12 connection with respect to Mr. Sattar and cannot be considered 13 with respect to Ms. Stewart and Mr. Yousry? 14 MR. RUHNKE: I think that is the correct instruction, 15 your Honor. I think that solves my objection. 16 MR. BARKOW: I'm sorry, your Honor, if I can just be 17 heard. The Court just said that the correct instruction might 18 be it's admissible against Mr. Sattar and not against.... 19 THE COURT: They are received -- the issue would be, 20 they're received subject to connection with respect to 21 Mr. Sattar. 22 MR. BARKOW: Right. 23 THE COURT: They're allegedly coconspirator statements 24 of the conspiracy of which he is a member. 25 MR. BARKOW: Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4737 48JLSAT2 1 THE COURT: Mr. Yousry says -- Mr. Ruhnke says there 2 is no non-hearsay relevance to these conversations, and 3 therefore, since they're really being offered for the truth of 4 what's said and couldn't be admitted for the truth of what's 5 said against Ms. Stewart and Mr. Yousry, the appropriate 6 instruction on these tapes is: They're received -- they're 7 offered only as to Counts 2 and 3; they're received subject to 8 connection with respect to Mr. Sattar; and they cannot be 9 considered against Ms. Stewart and Mr. Yousry. 10 MR. BARKOW: We believe that the reason that that's 11 not an appropriate instruction is because it's not accurate, 12 and it is contrary to what the Court had said earlier in its 13 long explanation, which is that these calls are background -- 14 we don't have the Livenote computer here -- but they provide 15 background, they provide a predicate, they would be admissible 16 in a separate trial of Mr. Stewart and Ms. Yousry to prove 17 Count 2's existence, the conspiracy's existence, and if that's 18 true, it is necessarily true that they can be considered, in a 19 sense, with respect to them. 20 They can't be -- the statements can't be taken out and 21 used for the truth of the matter asserted against them, but 22 they have relevance in that they establish the existence of the 23 Count 2 conspiracy. 24 THE COURT: Everyone, each side -- you, Mr. Ruhnke -- 25 likes to remember the portion of my prior discussion that each SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4738 48JLSAT2 1 one believes is helpful to them. When I've had this discussion 2 with you before, on the issue of hearsay, I've always said that 3 hearsay is an agency theory so it can't be used for the truth 4 against someone not a member of the conspiracy or alleged to be 5 a coconspirator. And so if you take the conversations -- and 6 I've always said you have to look at the individual pieces of 7 evidence. I mean, this is not something that's there in the 8 ether. And with these conversations, they're alleged to be 9 coconspirator conversations. There is no allegation that 10 they're admitted for context or background or state of mind of 11 the member of the Count 2 conspiracy -- 12 MR. BARKOW: But that's not correct, your Honor. They 13 are being offered as well for the state of mind of Mr. Sattar. 14 We haven't gone through with respect to each piece of evidence 15 and argued every single reason why each piece of evidence is 16 admissible, but with respect to Mr. Sattar, he connected these 17 calls. He listened to some of these calls. He participated in 18 some of these calls. He knew exactly what was being discussed 19 in some of these calls. And they therefore prove his intent 20 and his participation in the Count 2 conspiracy. 21 THE COURT: Then it requires a longer instruction. 22 They can't be considered for the truth of any matters that are 23 asserted because that's a -- that relies on agency theory. To 24 the extent that they are offered for a nonhearsay purpose, then 25 they can be considered for a nonhearsay purpose. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4739 48JLSAT2 1 I'm confident always on those distinctions. 2 We're going to take a break for five minutes and you 3 can talk about what you think are the appropriate instructions 4 for these calls. But because I said I would take a break, let 5 me just address the issue of the transcript for a moment. 6 I'll give you a couple of observations. 7 What were you going to say, Mr. Tigar? 8 MR. TIGAR: The Court of Appeals has addressed the 9 issue, your Honor, in a number of cases. The most specific 10 reference is United States verses Chiarizio, 525 F.2d 289, 293 11 (2d Cir.) 1975. 12 THE COURT: I know it. 13 MR. TIGAR: Cited with approval in Chalarca, which was 14 an appeal from Judge Scheindlin's case. See also United States 15 verses Carson, 464 F.2d, 424 at 437. Also cited with approval 16 in Chalarca. 17 THE COURT: As I read the cases, it appears the 18 clearest case was Carson in which the Court approved the 19 procedure of -- it was agreed that the transcripts would 20 contain the version believed accurate by each party. And that 21 was one of the seminal cases that was then followed. 22 There's also the indication that the procedure should 23 be for the Court to listen to the recording and the transcript, 24 but in this case, I don't think any of the parties are asking 25 the Court to do that. They have their own competing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4740 48JLSAT2 1 transcripts and out of all of what's gone on on the transcript, 2 there's only one disagreement. And it would seem, under 3 Carson, that the appropriate -- there's a disagreement between 4 the parties, and that the appropriate way to resolve good faith 5 disagreement between the parties is to have a transcript that 6 reflects both. And you're welcome to look at Carson. 7 MR. RUHNKE: Your Honor, could I just say one thing: 8 It's not true that there's only one disagreement between the 9 parties. We've gone back and forth on several things. 10 The only party that wishes to put its version of a 11 particular disagreement in the transcript is Ms. Stewart on 12 that issue. There are other disagreements which we'll handle 13 in the defense case, but -- 14 THE COURT: Okay. 15 MR. RUHNKE: I didn't want the Court to think that the 16 parties agreed on everything. 17 THE COURT: Okay, thank you. I'm right, aren't I, 18 that the parties aren't asking me to take the first step under 19 Carson to take a -- 20 MR. TIGAR: We certainly are not, your Honor. 21 MR. MORVILLO: Nor is the government. 22 MR. TIGAR: We've invested so much time in this just 23 to save that procedure. 24 THE COURT: Okay. 25 MR. MORVILLO: But your Honor, the fact that there is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4741 48JLSAT2 1 going to be a defense version of this transcript apparently in 2 the defense case illustrates that this procedure may not be the 3 appropriate procedure. I've read these cases. I'm going to go 4 back and look at Carson again. I wasn't familiar that they had 5 adopted a procedure where both versions of the transcript were 6 submitted simultaneously with the jury. I'm not disagreeing 7 with your Honor's reading of it, obviously. 8 THE COURT: Here's what it says, at 437: "An in 9 camera hearing was later held prior to the introduction of the 10 tapes or transcripts into evidence. And three transcripts were 11 made of the tapes. The parties agreed that the transcripts 12 accurately reflected the words on the tapes with certain 13 exceptions as to which it was agreed that the transcript would 14 contain the version believed accurate by each party. 15 "The government agreed with most of the changes sought 16 by defense counsel, and on the most damaging tape, that of the 17 December 29th meeting, agreed to delete certain words and 18 substitute the word 'inaudible'. 19 "An explanation of how the tapes were made was given 20 to the jury and the tapes and transcripts were admitted. It is 21 undisputed that the tapes played to the jury contained the 22 deletions, splices or additions." 23 MR. MORVILLO: I think that was the Second Circuit 24 describing the procedure that the district court used. I'm not 25 sure they endorsed that procedure expressly and said that's the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4742 48JLSAT2 1 procedure that should be used when the disputes arise. 2 THE COURT: You're welcome to see if there's anything 3 else out there. 4 MR. MORVILLO: I've looked and there's not, I'm pretty 5 confident. So I guess what I'm saying is, we're now going to 6 be in a situation where there's the government's version of the 7 transcript with at least one attribution that the defense says 8 should be there and then we're going to get to the defense case 9 and we're going to get a whole north defense version of the 10 transcript and I guess at that point it would be appropriate 11 for us to put our attribution into this place in the defense 12 version of the transcript? Is that -- 13 MR. RUHNKE: Your Honor, I think I can address 14 Mr. Morvillo's concerns. The vision he has is entirely 15 different -- a transcript isn't something that's going to come 16 about. What may come about, for example, when Mr. Yousry is on 17 the stand and says on the transcript, in the Arabic, The 18 translation attributed to you is as follows... Do you agree 19 with that? And he will say Yes or No. 20 THE COURT: There's not going to be another competing 21 transcript? 22 MR. RUHNKE: No, Sir. 23 THE COURT: Thank you. 24 Why don't we take five minutes? 25 MR. MORVILLO: Your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4743 48JLSAT2 1 THE COURT: Yes. 2 MR. MORVILLO: We have to go prepare another version 3 of the transcript if this ruling stands and that certainly is 4 not going to be able to be done this morning. Because it needs 5 to be scanned into the system and -- to be able to present it 6 to the jury. So we probably will finish the morning anyway 7 with respect to the remaining calls before we get to this. But 8 I would also like an opportunity just to look at the Carson 9 case. 10 THE COURT: Sure. Here. The only thing that I've 11 done is done some underlines. 12 MR. TIGAR: I have a copy for counsel, your Honor. 13 THE COURT: All right. 14 MR. TIGAR: And also the Chalarca case, which contains 15 the Chiarizio cite. Our proposal is to take Page 27, put it 16 back in the word processor and split the column with a 17 notation: Defense version; Government version. And that could 18 be done without having to repaginate the document. 19 MR. MORVILLO: I'm not sure that's going to work. I 20 don't know. I don't think you can just put a column in the 21 middle of a page. 22 MR. TIGAR: In Microsoft Word, you can, your Honor. 23 MR. MORVILLO: This is not that. 24 THE COURT: Another way, but I think both -- having 25 both on the same page is convenient for the jury when they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4744 48JLSAT2 1 listen. 2 MR. MORVILLO: I agree, your Honor. I'm just not sure 3 it's -- these are very, very long transcripts and it throws the 4 pagination off. It all has to be printed again. It's not as 5 easy as just inserting a line. 6 THE COURT: Okay. The parties have done a remarkably 7 good job of coming to agreements on the transcripts. And that 8 has saved a lot of time. 9 MR. TIGAR: If your Honor please, if the problem is 10 with the imaging, if that's the problem, perhaps they could 11 just do one page on the ELMO and then go back to their image. 12 I've just gone through all the knowledge that I know. 13 I hope that smooths the process. 14 MR. MORVILLO: I think we can work it out. I just 15 think it might take a few minutes to do. 16 THE COURT: Fine. 17 MR. MORVILLO: We don't have to do it now. We can try 18 to do it during the lunch break. 19 THE COURT: Okay. 20 MR. MORVILLO: With respect to the competing versions 21 of the transcripts, I take it from what Mr. Tigar is saying 22 that there is not going to be a competing version of the 23 defense -- of Mr. Tigar's proposed transcript of this visit 24 offered in the defense case? Is that right? 25 MR. TIGAR: I'm sorry, if this change is made? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4745 48JLSAT2 1 MR. MORVILLO: Yes, assuming it is. 2 MR. TIGAR: That is the defense version that is 3 referred to in the cases, yes. 4 MR. MORVILLO: Just as a point of clarification. 5 MR. TIGAR: No, we don't plan to offer some 6 alternative transcript. It's our view that this transcript is 7 not evidence, it's simply an aid to the jury, and I've 8 explained what my position is about it. 9 THE COURT: So there'll be no competing aid for the 10 jury in the defense case? 11 MR. TIGAR: That's right, your Honor. Miss Stewart 12 may be asked, Would you look at this; may I play this for you, 13 the same sort of thing we routinely do in these cases. But 14 that's the story. I'm trying to end the dispute right now. 15 And with this we don't need any of these authentication 16 witnesses. I've offered them a testimonial stipulation on 17 these deals so they don't even have to say how the excerpted 18 DVDs were created. 19 MR. MORVILLO: Very well. 20 THE COURT: Okay. Talk about the other instructions 21 for 1078 and 1083. 22 (Morning recess) 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4746 48JJSAT3 1 THE COURT: Please be seated. 2 MR. RUHNKE: We talked, Mr. Barkow and I talked and 3 came to no agreement. 4 THE COURT: It seems to me the appropriate instruction 5 is, and it is similar to one I have given -- 6 MR. BARKOW: I can't hear you. 7 THE COURT: -- the appropriate instruction is that 8 these transcripts are offered only as to Counts 2 and 3. 9 They're received subject to connection against Mr. Sattar, and 10 they cannot be considered for the truth of any of the matters, 11 they cannot be considered against Ms. Stewart and Mr. Yousry 12 for the truth of any of the matters asserted. 13 MR. RUHNKE: Obviously, they're not offering them for 14 any other purposes. 15 THE COURT: The reason it is not, and I could go on, 16 other purposes would include the fact of Mr. Sattar connecting 17 phone calls among these people, Mr. Sattar using his phone for 18 these conversations, any effect on the state of mind of 19 Mr. Sattar. There are a series of evidentiary uses which are 20 non-hearsay. 21 MR. RUHNKE: In other words, check back, your Honor, 22 to Mr. Yousry. That is the point. I won't go on. If that is 23 your Honor's ruling, that is your Honor's ruling. 24 THE COURT: Okay. The only thing I would add -- and 25 you've not asked for this before. I mean if you want me to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4747 48JJSAT3 1 list the possible uses of the evidence -- 2 MR. RUHNKE: No, your Honor. 3 THE COURT: The exclusion is not for the truth of the 4 matters asserted. 5 MR. RUHNKE: No, your Honor. 6 MR. TIGAR: Your Honor, we do have an agreement on the 7 transcript, and with the help of Ms. Grant, we have got a 8 procedure for putting it in without disrupting their imaging. 9 What will happen is our version will be in a different 10 font from the government's version as to the disputed line. 11 Because there is no way to put in an extra line, we will 12 propose to your Honor an instruction. When you get to Page 27, 13 it will be different fonts, that is what this is, something of 14 that sort. Am I saying it accurately? 15 MR. MORVILLO: Absolutely. Page 27 line 17. 16 MR. RUHNKE: We'll work the final details out over 17 lunch. The testimony and stipulation has been signed, which 18 means Mr. Francisco doesn't have to testify. That is where we 19 are. 20 MR. MORVILLO: We are prepared to receive with this 21 evidence, your Honor. 22 THE COURT: Great. If you wanted me to give the 23 transcript instruction because I previously instructed them 24 about transcripts of foreign language and transcripts of 25 English, I'll give the instruction again. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4748 48JJSAT3 1 MR. TIGAR: Yes, your Honor, we would appreciate that. 2 MR. MORVILLO: Yes, your Honor. 3 MR. TIGAR: To distinguish between those because, in 4 essence, the jury will get it twice with respect to the 5 English. 6 THE COURT: Okay. 7 MR. MORVILLO: Just so everyone is clear, when we are 8 reading this back, we will read both portions, obviously. If 9 the court wishes or defense counsel wishes, we can say 10 "government version," or "defense version" as we're reading it. 11 THE COURT: You won't be doing that in English, will 12 you? 13 MR. MORVILLO: Yes. 14 MR. TIGAR: That is what I mean by the twice, your 15 Honor. There is Arabic, Arabic, English, English. The 16 government has elected and we have not objected to them doing 17 the transcripts and then playing the English. 18 If that is the way they want to present their 19 evidence, we don't object to it. 20 THE COURT: That is fine. When you read, you'll work 21 out what you want me to tell the jury. When you read, you can 22 certainly say, "government version." 23 MR. TIGAR: Who will be Ms. Stewart reading? 24 MR. MORVILLO: A paralegal from the U.S. Attorney's 25 Office, Robin Friedlander. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4749 48JJSAT3 1 MR. TIGAR: Who will be instructed to read with equal 2 authority. 3 THE COURT: All right. Let's bring in the jury. 4 The next transcript is Government Exhibit 1078 X? 5 MR. MORVILLO: That's correct, your Honor. 6 THE COURT: That will be followed by 1083? 7 MR. MORVILLO: 1080, To be followed by 1081, 1082, 8 1083. 9 THE COURT: All right. I'll give the instruction with 10 respect to 1078 X, and then the other limiting instruction, the 11 same limiting instruction as 1083? 12 MR. BARKOW: That's correct, your Honor. 13 THE COURT: Okay. 14 MR. MORVILLO: Your Honor, may Mr. Forkner come 15 forward? 16 THE COURT: Yes. 17 (Jury present) 18 THE COURT: Please be seated, all. 19 All right, ladies and gentlemen, we're going to turn 20 to a transcript, which is Government Exhibit 1078 X, and this 21 transcript is offered only as to Counts 2 and 3, and it is 22 received subject to connection against Mr. Sattar, and I've 23 explained that to you, what that means. 24 The transcript cannot be considered against Ms. 25 Stewart or Mr. Yousry for the truth of any of the matters SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4750 48JJSAT3 1 asserted in the transcript. All right. 2 MR. MORVILLO: Your Honor, the government would 3 request permission to read to the jury and publish to the jury 4 Government Exhibit 1078 X. 5 THE COURT: All right. 6 MR. MORVILLO: Which is a telephone call on April 24, 7 2000, at 6: 49 am. 8 THE COURT: 1078 is in evidence? 9 MR. MORVILLO: Yes, it is. If Mr. Dember could take 10 the podium. 11 THE COURT: All right. 12 (At this time, Government Exhibit 1078 X was displayed 13 and read) 14 MR. MORVILLO: Your Honor, the government at this time 15 would request permission to read Government Exhibit 1080 X in 16 evidence to the jury and to display a copy to the jury. 17 THE COURT: All right. 18 MR. MORVILLO: This is a telephone call April 22nd, 19 2002, 5:09 pm. I ask that Mr. Forkner read the attributions to 20 Mr. Sattar and also those to Lisa Sattar, and I will read the 21 unidentified male. 22 THE COURT: All right. 23 (At this time, Government Exhibit 1080 X was displayed 24 and read) 25 MR. BARKOW: Your Honor, at this point we request SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4751 48JJSAT3 1 permission to read to the jury and publish to the jury 2 Government Exhibit 1081 X, which is in evidence. 3 THE COURT: All right. 4 MR. BARKOW: With the court's permission -- this is a 5 call on April 28th, 2002, 10:15 pm -- Mr. Forkner will read the 6 lines of Ahmed Abdel Sattar, and I will read the lines of 7 Mohammad Salah. 8 THE COURT: All right. 9 (At this time, Government Exhibit 1081 X was displayed 10 and read) 11 MR. BARKOW: Your Honor, at this point the government 12 requests permission to publish to the jury and read to the jury 13 the Government Exhibit 1082 X, which is in evidence. 14 THE COURT: All right. 15 MR. BARKOW: May we display this one? 16 THE COURT: Yes. 17 MR. BARKOW: This is a call on April 30, 2002, 8:15 18 pm. Mr. Forkner will read the lines of Ahmed Abdel Sattar, and 19 I will read the lines of Mohammad N. Elmasry. 20 May we proceed, your Honor? 21 THE COURT: Yes. 22 (At this time, Government Exhibit 1082 X was displayed 23 and read) 24 MR. MORVILLO: Your Honor, at this time the government 25 would request permission to read and publish to the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4752 48JJSAT3 1 Government Exhibit 1083 X in evidence. It is a telephone call 2 May 9th, 2000, at 4:19 pm between Ahmed Abdel Sattar and Rifa'l 3 Ahmad Taha Musa.. 4 THE COURT: Government Exhibit 1083 X is offered only 5 as to and received only as to Counts 2 and 3. They're 6 received, and it is received subject to connection against 7 Mr. Sattar, and it cannot be considered against Ms. Stewart and 8 Mr. Yousry for the truth of any of the matters asserted in the 9 transcript. 10 (At this time, Government Exhibit 1083 X was displayed 11 and read) 12 MS. BAKER: Your Honor, the government calls Scott 13 Kerns. 14 THE COURT: We'll take five minutes. I'm not sure if 15 we are ready for the lunch hour yet. Ladies and gentlemen, 16 we'll just take five minutes. Please remember my continuing 17 instructions not to talk about the case and to keep an open 18 mind. 19 (Jury excused). 20 THE COURT: Be seated for a moment. I would have 21 given you a sidebar, but that -- 22 MS. BAKER: The government obtained the 23 declassification of the portions of the document your Honor 24 reviewed last night, that you specified this morning, and I 25 have provided those to defense counsel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4753 48JJSAT3 1 MR. TIGAR: Your Honor, I have been delivered a 2 document marked GX 3525-B1, and I was going to review it 3 against the transcript this morning of what your Honor had 4 ordered. 5 On numbered Page 3, Page 4 out of 5 of the fax, there 6 is a redaction of the number of calls from the .VOC DVD. 7 THE COURT: I said that could be declassified. 8 MR. TIGAR: Again, your Honor, it is my 9 recollection -- assuming this is the redaction your Honor 10 ordered, I think the Jencks menu is complete. 11 MS. BAKER: The only other thing I would add, your 12 Honor, your Honor noted this morning that the document made 13 reference to an enclosure. The enclosure is available for your 14 Honor to review over the lunch hour if your Honor wishes. The 15 enclosure is also classified. I have compared it with the 16 document itself, and it is my belief that it relates entirely 17 to portions of the document that your Honor did not order 18 declassified and disclosed. 19 MR. TIGAR: I don't mean to impose on your Honor's 20 lunch, but we would appreciate it being reviewed at some point 21 because that is the procedure. 22 THE COURT: Do you care if it is done before the 23 cross? 24 MR. TIGAR: No, I don't care, your Honor. Even if I 25 did care, the statute doesn't entitle me to care. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4754 48JJSAT3 1 THE COURT: Sure. That is what I would have done this 2 morning. 3 MR. TIGAR: I didn't mean to make light of this, your 4 Honor. The review process in the statute I think could take 5 place even at the end of the direct examination. 6 THE COURT: Right. I don't know how long the direct 7 will be. 8 MS. BAKER: Your Honor, I think that the direct is 9 perhaps 20 minutes, not very long. 10 I also think Mr. Tigar may have misheard your Honor 11 because your Honor's question, I believe, was after cross. 12 Your Honor said cross in the question. I thought Mr. Tigar 13 said you were saying direct. 14 MR. TIGAR: Sorry, your Honor. I did mishear. That 15 is the problem. 16 THE COURT: All right. I'll review it. 17 Let's bring back the jury. 18 MS. BAKER: Your Honor, may I call Agent Kerns for his 19 direct and bring him in now? 20 THE COURT: Yes. 21 (Jury present) 22 THE COURT: Please be seated, all. 23 Agent Kerns has been called. Mr. Fletcher. 24 THE CLERK: Agent Kerns, having been previously sworn, 25 you're reminded you're still under oath. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4755 48JJSAT3 1 THE WITNESS: I understand. 2 THE COURT: Ms. Baker, you may examine. 3 MS. BAKER: Your Honor, may I approach the witness? 4 THE COURT: Yes. 5 (Pause) 6 SCOTT KERNS, 7 recalled as a witness by the Government, 8 having been previously duly sworn, testified as follows: 9 DIRECT EXAMINATION 10 BY MS. BAKER: 11 Q. Agent Kerns, I've handed you some items that have been 12 marked for identification, two discs marked for identification 13 as Government Exhibits 1317 and 1730 and two documents marked 14 for identification as 1317 L and 1730 L. 15 Let me ask you to look first, please, at the disc 16 marked as Government Exhibit 1317. 17 A. All right. 18 Q. Do you recognize Government Exhibit 1317? 19 A. Yes, I do. 20 Q. What is it? 21 A. This is the disc I labeled Sattar Trial DVD No. 4. It 22 calls for discs that I was requested to provide in this case. 23 Q. I am going to ask you to explain to the jury how you made 24 that DVD. Would it assist you in that explanation to refer to 25 the diagram that we used before, which is Government Exhibit SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4756 48JJSAT3 1 1310? 2 A. Yes, it would. 3 MS. BAKER: Your Honor, may I republish to the jury 4 Government Exhibit 1310 in evidence? 5 THE COURT: Yes. 6 BY MS. BAKER: 7 Q. Agent Kerns, if you would, by referring to Government 8 Exhibit 1310, please explain to the jury how you made a DVD 9 marked as Government Exhibit 1317. 10 A. Yes. What I did was, if you look at the diagram, this one 11 was created strictly by pulling MO's that were created from the 12 electromagnetic discs from Position 1, copied to Position 2 and 13 then I created multiple copies of the DVD which is in Position 14 3. 15 Q. Now, you referred to MO discs that had been created from 16 the electromagnetic tapes. 17 Are all of the calls on the disc marked as Government 18 Exhibit 1317 originally from electromagnetic tapes or are there 19 also some originally from MO discs? 20 A. No. There are some originally from MO discs from the 21 Raytheon system as well. 22 Q. And so the resulting DVD marked as Government Exhibit 1317, 23 is that represented by Position No. 3 in the diagram, 24 Government Exhibit 1310? 25 A. Yes, it is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4757 48JJSAT3 1 Q. Now, once you made that DVD, could it be altered? 2 A. No. It was burned directly to the DVD by myself. 3 Q. At the time you made the DVD which is now marked as 4 Government Exhibit 1317, did you make more than one exactly 5 identical DVD? 6 A. Yes, I did. 7 Q. About how many did you make at the same time? 8 A. I believe I made 8 total. 9 Q. Did you give any of those other DVDs which are exactly 10 identical to Government Exhibit 1317 to anyone else at FBI? 11 A. Yes, I did. 12 Q. To whom? 13 A. I gave two of them to the linguists responsible for 14 translating the calls for trial. 15 Q. Before you made Government Exhibit 1317 and the other DVDs 16 that you made at exactly that same time, had you made a 17 different DVD that you had also marked as Sattar Trial DVD No. 18 4, or whatever it is you ended up ultimately putting on this? 19 A. Yes, I had. 20 Q. What was the difference between what is now marked as 21 Government Exhibit 1317 and the prior DVD that you had made 22 that you labeled DVD 4? 23 A. The difference was the U.S. Attorney's Office had called me 24 and said they had a change, they wanted one call removed and 25 another call added. So what I had to do was go back to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4758 48JJSAT3 1 computer in Position No. 2, add the call they wanted, take off 2 the call they didn't, and I burned 8 more DVDs. 3 Q. At the time that you made that prior disc which you had 4 also called DVD 4, did you make a number of exactly identical 5 discs at the same time at that point? 6 A. Yes, I did. 7 Q. Did you give any of those prior discs to anyone at the FBI? 8 A. Yes, I went back to the translators and I provided it to 9 the two of them. 10 MS. BAKER: Your Honor, may I approach the witness? 11 THE COURT: Yes. 12 (Pause) 13 BY MS. BAKER: 14 Q. I've handed you a disc marked for identification as 15 Government Exhibit 1317 VB. Do you recognize Government 16 Exhibit 1317 VB? 17 A. Yes, I do. 18 Q. What is that? 19 A. This is one of the copies of the discs that I created which 20 is the same as 1317. They're both dated the same date. 21 Q. Does that mean that you made those two at exactly the same 22 time? 23 A. Yes, I did. 24 Q. Do they contain exactly the same content? 25 A. Yes, they do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4759 48JJSAT3 1 Q. Let me ask you to put aside the discs for a moment and turn 2 to the document marked 1317 L. Do you recognize Government 3 Exhibit 1317 L? 4 A. Yes, I do. 5 Q. What is it? 6 A. This is a list of calls that are on trial DVD No. 4. 7 Q. Which is the DVD in front of you now marked as Government 8 Exhibit 1317? 9 A. Yes. 10 Q. Did you compare on the computer the contents of the discs 11 Government Exhibit 1317 with the list Government Exhibit 1317 L 12 to ensure that they matched? 13 A. Yes, I did. 14 Q. Did they match? 15 A. Yes, they did. 16 Q. How did you indicate that on the discs and on the list? 17 A. I initialed and put the date that I had reviewed it. 18 Q. Does the list also provide for each of the recordings that 19 are listed on there the government exhibit number assigned to 20 that recording? 21 A. Yes, it does. 22 Q. Let me ask you, please, to put that list aside and turn to 23 the discs marked as Government Exhibit 1730. Do you recognize 24 Government Exhibit 1730? 25 A. Yes, I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4760 48JJSAT3 1 Q. What is it? 2 A. This is a CD that I created, that I entitled "prison calls" 3 that was provided, those calls or a list of those calls 4 provided by the U.S. Attorney's Office. 5 Q. Referring you again to the diagram in evidence as 6 Government Exhibit 1310, would you explain to the jury, please, 7 how you made that CD which is now marked as Government Exhibit 8 1730. 9 A. Yes, we started in Position 1 with the MO's, defined the 10 specific calls requested of me. I copied them to Position No. 11 2, and I would burn in this case actually not a DVD, it is just 12 a CD. 13 Q. Except for the fact that on the diagram Government Exhibit 14 1310 shows a DVD in Position No. 3, is that point in the 15 process Position No. 3, does that correspond to the CD which is 16 marked as Government Exhibit 1730? 17 A. Yes. 18 THE COURT: Whenever is a convenient time? 19 MS. BAKER: Sorry? 20 THE COURT: Whenever there is a convenient time. 21 MS. BAKER: Thank you. I have a couple of more 22 questions. 23 BY MS. BAKER: 24 Q. You testified that Government Exhibit 1730 is a CD? 25 A. Yes, it is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4761 48JJSAT3 1 Q. Once you made that CD by copying files to it, after that, 2 can it be altered in any way? 3 A. No. 4 Q. Let me ask you to look at the document in front of you 5 marked Government Exhibit 1730 L. Do you recognize Government 6 Exhibit 1730 L? 7 A. Yes, I do. 8 Q. What is it? 9 A. It is a list of calls that are on the prison call CD. 10 Q. Did you compare that list with the actual contents of the 11 CD to compare if the list was accurate? 12 A. Yes, I did. 13 Q. How did you indicate that on the list and CD? 14 A. I signed it and dated it. 15 Q. Does the list also provide a government exhibit number 16 assigned to each individual call? 17 A. Yes, it does. 18 MS. BAKER: Your Honor, the government offers the DVD 19 Government Exhibit 1317. Specifically, we offer as to each of 20 the recordings on it the portions of the recordings that 21 correspond to the excerpted transcripts that will be presented. 22 We also offer the CD, Government Exhibit 1730, and 23 again specifically as to each of the recordings on it, the 24 portions that correspond to the excerpted transcripts that will 25 be presented. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4762 48JJSAT3 1 We also offer Government Exhibits 1317 L and 1730 L, 2 and this will be a convenient breaking point. 3 THE COURT: Okay. All right. Ladies and gentlemen, 4 we'll break for lunch until 2:15. Please remember my 5 continuing instructions not to talk about the case. Remember 6 to keep an open mind until you have heard all of the evidence, 7 I've instructed you on the law, you've gone to the jury room to 8 begin your deliberations. Have a good lunch. 9 (Jury excused) 10 THE COURT: All right. Agent Kerns, you may step 11 down. 12 (The witness left the witness stand). 13 MR. TIGAR: After Agent Kerns has left the courtroom, 14 I have a matter, your Honor. 15 THE COURT: All right. 16 (Pause) 17 MR. TIGAR: Two issues, your Honor: 18 First, in the government's letter to us of August 3, 19 2004, at Page 5, the government stated that Agent Kerns had 20 testified inaccurately on his first appearance here. 21 My question is whether the government intends to 22 correct any inaccuracy on this appearance or whether they had 23 anticipated it to be done on cross-examination? 24 The second matter is that the Exhibit 1730 is 25 different from the other DVDs that are about calls; that is to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4763 48JJSAT3 1 say, the calls on that were recorded apparently by a system 2 that originated in the federal prison in Rochester. As I sit 3 here, I have some impression as to how that system operated and 4 to how those calls, the signal of those calls got to the FBI, 5 but I am wondering if the government is going to have some 6 additional authentication for 1730, because the process by 7 which the calls were recorded and put on MO discs, I don't 8 recall whether there has been anything in evidence that 9 establishes that. 10 MS. BAKER: To address Mr. Tigar's two points in 11 order, I don't have my August 3rd letter in front of me, but if 12 he is referring to the inaccuracy that Special Agent Kerns 13 previously testified that he did not believe that any call on 14 Government Exhibit 1000 came from a tape that was taken to 15 Minnesota, the answer is yes, I intend to elicit from him that 16 he has now checked and knows that one call on that disc did 17 come from a tape that went to Minnesota. 18 As to Mr. Tigar's second issue -- 19 THE COURT: I assumed as much from both the question 20 and what has transpired before, as to what was being referred 21 to and as to what you said you were going to do. 22 MS. BAKER: As to Mr. Tigar's second issue, he's 23 proceeding from a false premise. These recordings on the CD 24 marked as Government Exhibit 1730 were made by the Lockheed 25 Martin or Raytheon system, depending on the date of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4764 48JJSAT3 1 recording. 2 I suppose it is possible that some other system 3 simultaneously recorded the same call at the prison. I don't 4 know one way or the other. Given that it was an attorney call, 5 I don't know what procedure the prison follows with attorney 6 calls. 7 These recordings that the government is offering were 8 made by the Lockheed Martin system or the Raytheon system; and, 9 therefore, are based on exactly the same authentication 10 testimony already given. 11 THE COURT: All right. 12 MR. TIGAR: I suppose then that we can have an 13 argument when the witness is finished, but given the fact that 14 the offer has been made, I think I can do all my 15 cross-examination at once or I can take the witness on the voir 16 dire right now. 17 I will only observe the fact that the calls were 18 captured on the Lockheed Martin system when Agent Elliot 19 testified or Mr. Elliot, he told us about a system, but then 20 the authentication process started with where the calls were 21 initially recorded. 22 There was no FISA warrant from Mr. Clark's office or 23 Ms. Stewart's office or Mr. Jabara's office, and so the target 24 telephone could not have been any of those. Indeed, if the 25 target telephone is one of those, then we have an entirely SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4765 48JJSAT3 1 different issue here. 2 The question is, and with respect to those calls, the 3 other calls we've seen, every one has been on a certain 4 telephone number. They have been with a target telephone. It 5 has been incoming, it has been outgoing. It was the 6 information on the header and so on. If the government is 7 saying oh, no, now we're not going to do that, we're not going 8 to provide that additional step, we can make an authentication 9 objection. 10 I note that none of the Jencks material provided by 11 Agent Kerns in the most recent production deals with 1730; that 12 is to say, the list that was provided to us as 3525 V deals 13 with all the calls on 1000, 13O1, 1300, 1317 and so on, with 14 columns for the target telephone. 15 I am really troubled by this, your Honor, because 16 there is a step missing here. The technology is different. I 17 understand when it got to the FBI office, okay, it is probably 18 a Raytheon system, that is the one they had. As I say, there 19 is a step missing. 20 MS. BAKER: Your Honor, there is no step missing. If 21 your Honor looks at Government Exhibit 1730 L, it shows that 22 there are four audio files. Two of them are from June of 2000. 23 Those were recorded on the Lockheed Martin system. Two of them 24 are from October of 2000. Those were recorded on the Raytheon 25 system. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4766 48JJSAT3 1 The telephone number that was monitored is indicated 2 in the file name of each call. If Mr. Tigar were to look at 3 the .VOC file for each call, it would have the same 4 signal-related information in the header. 5 I honestly do not know what Mr. Tigar is talking 6 about. What the FBI was doing was monitoring the telephone 7 line with the telephone number that is given here through 8 exactly the process described by Mr. Elliot. They had that 9 line routed to the New York office of the FBI and intercepted 10 these calls using the Lockheed Martin system and the Raytheon 11 system. 12 MR. TIGAR: Well, I now understand that much. 13 Given the fact that all of the FISA information has 14 been sealed, it is difficult for me to respond in any detail, 15 but may I know, is it the case, did the FBI have a warrant to 16 intercept all the calls from the Rochester prison during a 17 certain period of time? 18 What was this? What was this about? 19 MS. BAKER: Obviously, I cannot speak here in open 20 court about the contents of classified FISA applications and 21 orders. I know that your Honor recalls, but perhaps Mr. Tigar 22 does not, that your Honor reviewed all of the FISA court 23 applications and orders at issue in this case, including the 24 applications and orders that resulted in the FBI's interception 25 of these prison calls. Your Honor found that the applications SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4767 48JJSAT3 1 were proper, that the orders were properly issued and that the 2 orders were properly implemented by the FBI. 3 THE COURT: All of that is correct. I issued an 4 opinion. The only issue would be are these calls that were 5 pursuant to what I had reviewed? 6 MS. BAKER: Yes, your Honor. 7 THE COURT: All right. 8 MR. TIGAR: The representation is these are calls 9 pursuant to that? 10 THE COURT: Correct. 11 MR. TIGAR: At least we have an answer and a basis to 12 go forward. 13 I will say that I don't have any Jencks material that 14 refers so far as I am aware to Rochester prison calls. If 15 there is none, there is none. It is simply noted. 16 THE COURT: Okay. I assume that I would reserve on 17 the exhibits until cross was completed and the parties -- and 18 any redirect -- and the parties have an opportunity to make any 19 arguments to me that they wish. 20 MR. TIGAR: In that case, your Honor, I will not take 21 the witness on the voir dire. 22 THE COURT: Okay. If you could give me, Ms. Baker, 23 the enclosure. 24 (Pause) 25 MS. BAKER: Your Honor, apparently we had a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4768 48JJSAT3 1 misunderstanding. Agent Kerns had brought it to court, 2 appropriately packaged. While he was on the stand, he left it 3 with his colleague. When he left, he reclaimed it and took it 4 with him. We will have someone bring it to whatever location 5 your Honor specifies within the next 5 or 10 minutes. 6 Where shall we bring it? 7 THE COURT: I'll be in my chambers across the street. 8 MS. BAKER: Very well. 9 THE COURT: Okay. Thank you, all. 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 4769 48JLSAT4 1 A F T E R N O O N S E S S I O N 2 2:20 p.m. 3 (In open court; jury not present) 4 MR. BARKOW: Your Honor, we have a very brief 5 scheduling request we thought we should bring up before the 6 jury comes in. On Monday, two of our three paralegals in this 7 case -- and two are essential to our presentation -- have to go 8 to a meeting during the lunch hour because they have a new 9 employer. We can make it so that they would be gone from 12:30 10 to 2:30, including transportation. We would ask that that 11 perhaps be a longer lunch day, and maybe with advance planning 12 and working with the longer lunches that we sometimes do, so 13 that we can present -- have them here for this case. 14 THE COURT: So...? 15 MR. BARKOW: So we can have them here for our ability 16 to present the evidence. 17 THE COURT: All right. 12:30 to 2:30 is okay. Do you 18 have any other issue? 19 MR. BARKOW: I'm sorry? 20 THE COURT: Did you have another issue? 21 MR. BARKOW: No. I wanted to just tell the Court 22 before the jury came back about that so the Court can work it 23 into a scheduling type thing, since it's Thursday. 24 THE COURT: Okay. 25 MS. BAKER: Your Honor, there's one additional piece SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4770 48JLSAT4 1 of 3500 material. I put a copy for the Court right up here on 2 the ledge. It's been provided to defendants. 3 THE COURT: All right. I don't think you -- or at 4 least I don't think I have copies of the two "L" exhibits that 5 you were offering. 6 (Pause in proceedings) 7 THE COURT: All right. I reviewed the enclosure that 8 the government had passed up and it's not 3500 material. It's 9 not -- it's related to the subject matter of the direct and the 10 potential direct, as I've been construing it for this case. 11 MR. TIGAR: Thank you, your Honor. 12 THE COURT: And I'll include that with all the other 13 classified materials that I review and give it to the security 14 officers so it's preserved. All right? Are we ready to bring 15 in the jury? 16 MS. BAKER: Yes, your Honor. 17 THE COURT: Okay. 18 MS. BAKER: Your Honor, actually, for the record, I 19 just noticed the piece of 3500 material I just distributed and 20 handed up to the Court I marked as B1. That's an error because 21 the one that I disclosed earlier today after declassification 22 was B1. So the one that I just handed out and handed up to the 23 Court should be C1. 24 MR. TIGAR: C1. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4771 48JLSAT4 1 MS. BAKER: In other words, the one that says Prison 2 Calls That May be Used at Trial should be C1. 3 THE COURT: All right. Bring in the jury. 4 (Jury entering courtroom) 5 (In open court) 6 THE COURT: All right. Agent Kerns has resumed the 7 stand. 8 Oh, good afternoon ladies and gentlemen. 9 JURORS: Good afternoon. 10 THE COURT: It's good to see you all. 11 All right. Agent Kerns is on the stand. 12 Mr. Fletcher? 13 DEPUTY CLERK: Agent Kerns, you are reminded you're 14 still under oath. 15 THE WITNESS: I understand. 16 THE COURT: Ms. Baker, you may proceed. 17 DIRECT EXAMINATION (Continued) 18 BY MS. BAKER: 19 Q. Agent Kerns, I'm going to show you now some disks that are 20 in evidence as Government Exhibit 1000, Government 21 Exhibit 1015, Government Exhibit 1300, Government Exhibit 1301 22 and Government Exhibit 1315. 23 Your Honor, may I approach the witness? 24 THE COURT: Yes. 25 Q. Do you recognize those? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4772 48JLSAT4 Kerns - direct 1 A. Yes, I do. 2 Q. Are those disks that you made that you previously testified 3 about? 4 A. Yes. 5 Q. Let me ask you to look specifically at Government 6 Exhibit 1000, 1300 and 1301. At the time that you made each of 7 those DVDs, did you also make other exactly identical DVDs at 8 the same time? 9 A. Yes, I did. 10 Q. On each of those instances, about how many identical DVDs 11 did you make? 12 A. It was usually at least anywhere from six to eight. 13 Q. On each of those instances, did you give any of the DVDs to 14 anyone at FBI? 15 A. Yes, I did. 16 Q. To whom? 17 A. To the language specialists that were responsible for 18 reviewing the calls that were on the DVDs. 19 Q. I'm going to show you now another set of disks which are 20 marked for identification as Government Exhibit 1000VB -- 21 Victor Bravo; 1300NB; 1300VB; and 1301VB. 22 Your Honor, may I approach the witness? 23 THE COURT: Yes. 24 Q. Do you recognize Government Exhibit 1000VB? 25 A. Yes, I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4773 48JLSAT4 Kerns - direct 1 Q. What is that? 2 A. It's the labeled Sattar Trial DVD Number 1. 3 Q. Is that a disk that you made at the same time that you made 4 Government Exhibit 1000? 5 A. Yes. 6 Q. Is it identical to Government Exhibit 1000? 7 A. Yes. 8 Q. Looking now at Government Exhibits 1300NB and 1300VB, do 9 you have those? 10 A. Yes. 11 Q. Do you recognize those? 12 A. Yes, I do. 13 Q. Are those disks that you made at the same time you made 14 Government Exhibit 1300? 15 A. Yes, they are. 16 Q. Are each of those disks identical to Government 17 Exhibit 1300? 18 A. Yes, they are. 19 Q. And finally, turning to Government Exhibit 1301VB, do you 20 recognize that one? 21 A. Yes, I do. 22 Q. Did you make that one at the same time that you made 23 Government Exhibit 1301? 24 A. Yes, I did. 25 Q. And is 1301VB identical to Government Exhibit 1301? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4774 48JLSAT4 Kerns - direct 1 A. Yes, it is. 2 Q. Now, when you testified here previously, you testified that 3 you took certain electromagnetic tapes on which there were 4 Lockheed Martin recordings to a company in Minnesota. Do you 5 remember that testimony? 6 A. Yes, I do. 7 Q. How many tapes did you take with you to that company in 8 Minnesota? 9 A. I believe it was 33 tapes total. 10 Q. And what if anything did that company in Minnesota do with 11 those tapes? 12 A. Once I arrived and brought them to their facility, they 13 attempted to copy them. If they couldn't, they returned the 14 original to me. If they could, they would copy it and provide 15 me an original and a copy. 16 Q. When you say they copied it, how did, if at all did, a copy 17 of any tape made by the company in Minnesota differ from the 18 original? 19 A. It was an exact copy of the original. 20 Q. If you would look at the DVD that's in evidence, one of the 21 ones in front of you, Government Exhibit 1000? 22 A. Okay. 23 Q. How many calls if any on that DVD, Government Exhibit 1000, 24 came from a tape that you took with you to the company in 25 Minnesota? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4775 48JLSAT4 Kerns - direct 1 A. I believe there is one call on this DVD from that trip. 2 Q. Do you recall which call it is? 3 A. I would have to review my notes, but I believe it was 4 April 27, 1996, but I'd have to review the list. 5 Q. Your Honor, may I approach the witness with Government 6 Exhibit 3525Q? 7 THE COURT: Yes. 8 Q. Agent Kerns, is that the list you were referring to in your 9 last answer? 10 A. Yes, it is. 11 Q. If you would just look at that to yourself, don't read 12 anything off of it out loud. Does that refresh your 13 recollection as to whether the last answer that you gave was 14 correct as far as which call on Government Exhibit 1000 came 15 from a tape that you took with you to Minnesota? 16 A. Yes, it does. 17 Q. When you said the date of that call was April 22nd, 1996? 18 A. Yes, it is. 19 Q. What is the government exhibit number of that call? 20 A. The government exhibit is GX 1000. 21 Q. Well, that's -- 22 A. I'm sorry. The government exhibit for that specific call 23 is 1001. 24 Q. Putting the document aside, when you testified on 25 July 12th, 2004, I asked you, based on your review of what you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4776 48JLSAT4 Kerns - direct 1 believed to be the relevant documentation, if any of the calls 2 that are on Government Exhibit 1000 are calls from -- resulted 3 from the work done by the contractor in Minnesota, and you 4 answered on July 12 of 2004, "I don't believe there are, no." 5 What was the basis for your belief on July 12th of 6 2004 that there were no calls on Government Exhibit 1000 from 7 the tapes that you took to Minnesota? 8 A. I had reviewed prior to coming to court a list of what I 9 considered still missing. And I had believed that that was the 10 list that I had or was -- that we actually had at the time I 11 went to Minnesota. And when I reviewed that list, this 12 particular call was not on that list. So that's why I believed 13 that we didn't have any calls from 1000 from my trip to 14 Minnesota. 15 Q. Let me follow up on a couple of parts of that answer. You 16 said you reviewed a list, and I believe the way you phrased it 17 was, of things that were still missing? 18 A. That's -- calls that were still missing. 19 Q. And by that you mean, calls that had not yet been retrieved 20 and provided to the parties during the pretrial phase of the 21 case? 22 A. That's correct. 23 Q. Your Honor, I have to look back at the witness's last 24 answer. Can I ask the court reporter? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4777 48JLSAT4 Kerns - direct 1 (Record read) 2 Q. Could you just explain a little more what you meant about 3 the fact that -- what the significance was in your mind at that 4 time of a call not appearing on the list of calls that were 5 missing? 6 A. That list was the -- when I reviewed it, that list to me 7 was the one I had been going by and was still using right up 8 until we began trial, with what was missing. And I had written 9 on that at different times during this investigation or during 10 the discovery phase to turn things over. 11 On that list was, if we had found a call, and we knew 12 it was on a tape that I had taken to Minneapolis, there was 13 writing on there stating that -- 14 MR. TIGAR: Excuse me, your Honor. I object to the 15 contents of the document -- 16 THE COURT: Sustained. 17 Q. If a call was not listed in the document, what did you 18 understand that to mean about whether or not the call had been 19 retrieved before you went to Minnesota? 20 A. If it wasn't on that list, it had been retrieved and it had 21 been turned over. 22 Q. Now, what, if anything, did you do since your testimony on 23 July 12th of 2004 that caused you to realize that there is, in 24 fact, the one call on Government Exhibit 1000 that did come 25 from a tape you took to Minnesota? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4778 48JLSAT4 Kerns - direct 1 A. I went back and I went through the list of tapes that I had 2 taken with me, based on my signatures and the information that 3 I had and which tapes went with me and which ones were sent 4 back. I went to every single tape and I went through them and 5 pulled the information regarding the dates of those tapes as in 6 what was the first call on that, when was the last call on a 7 particular tape. That's when I realized that one of the tapes 8 had a same time period as a call from 1000, at which time I 9 actually took the MO and looked for it on that particular 10 converted MO from the tape, and the call was there. 11 Q. Did you also, since your testimony on July 12th of 2004, go 12 through the same process to determine whether there are calls 13 on the other trial DVDs or CDs that came from tapes you took to 14 Minnesota? 15 A. Yes, I did. 16 Q. Let me ask you about the other DVDs and CDs. 17 Turning first to Government Exhibit 1300, how many 18 calls, if any, on Government Exhibit 1300 came from tapes that 19 you took to Minnesota? 20 A. There were a total of two calls. 21 Q. Are you able to recall the dates of those calls? 22 A. I don't remember. I did write it down on a sheet. 23 MS. BAKER: Your Honor, may I approach the witness 24 with Government Exhibit 3525R? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4779 48JLSAT4 Kerns - direct 1 Q. Is that the document you were just referring to? 2 A. Yes, it is. 3 Q. If you would just review it silently to yourself and then 4 I'll ask if it refreshes your recollection as to the date of 5 the two calls. What were the dates of the two calls on 6 Government Exhibit 1300 that came from a tape or tapes that you 7 from Minnesota? 8 A. The first call was July 2nd of 1999; and the other call was 9 January 5th of 2000. 10 Q. And would you give us, please, the government exhibit 11 numbers of each of those calls? 12 A. The July 2nd, 1999 call, the government exhibit is 1018; 13 and for January 5th of 2000, the government exhibit is 1048. 14 Q. Did those two calls come from the same tape or from two 15 different tapes? 16 A. Two different tapes. 17 Q. Thank you, you can put that document to the side. 18 Now, the remaining DVDs that you have testified about 19 at this trial on all of your prior appearances and today 20 included, are Government Exhibits 1015, 1301, 1315, 1317 and 21 the prison call CD, which is 1730. 22 Are there any calls on any of those disks that came 23 from any tape that you took to Minnesota? 24 A. No. 25 MS. BAKER: Your Honor, may I have a minute? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4780 48JLSAT4 Kerns - direct 1 THE COURT: Yes. 2 (Pause in proceedings) 3 MS. BAKER: Your Honor, I have no further questions. 4 THE COURT: All right. 5 MR. TIGAR: May I inquire, your Honor? 6 THE COURT: Yes. You may examine. 7 CROSS EXAMINATION 8 BY MR. TIGAR: 9 Q. Agent Kerns, you're a member of a certain squad; is that 10 right? 11 A. Yes, that is correct. 12 Q. Is that the SO1 squad? 13 A. Yes, it is. 14 Q. Are you the head of that squad? 15 A. No, I am not. 16 Q. Turning first to the issue of translations, the SO1 squad 17 is the squad to which technical problems reported by the 18 translators are reported; is that your understanding? 19 A. That is my understanding, yes. 20 Q. And you were asked on direct examination to look at some 21 DVDs with initials after them, VB and NB. Do you recall that? 22 A. Yes, sir. 23 Q. And the VB ones were ones that were handed to a translator 24 whose initials were VB; is that correct? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4781 48JLSAT4 Kerns - cross 1 Q. Who would that be? 2 A. Victoria Benjamin. 3 Q. And the NB ones are from Miss Banout? 4 A. That's correct. 5 Q. I've forgotten her first name. 6 A. Nabila. 7 Q. Nabila Banout. Now, in connection with any of the calls 8 that were on those DVDs, did Ms. Benjamin or Miss Banout report 9 technical problems to you? 10 A. I don't remember if they provided any information regarding 11 the -- what's in government evidence as 1315, which is the 12 calls from 6-21, 2000. I am aware that there was a problem, 13 but I don't remember if Miss Benjamin or Miss Banout told me 14 about that particular call or whether it was from the case 15 squad that had conveyed that to me from them. 16 Q. I'm sorry, what was the date of that again? 17 A. The 6-21, 2000 calls. It's Government Exhibit 1315. 18 Q. When you say Government Exhibit 1315 -- may I show this to 19 the witness, your Honor? 20 THE COURT: Yes. 21 Q. I'm putting up 1315L on the ELMO, and the 6-21 call you 22 referred to is one of the ones that are listed on here -- which 23 one, or ones? 24 A. It's my understanding that this is all one call and that 25 there was a -- as I testified previously, there had been some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4782 48JLSAT4 Kerns - cross 1 kind of technical difficulty. And that's why those calls, 2 particular calls were put on 1315. 3 Q. Do you recall being asked anything about a telephone call 4 on the 21st of June that is in evidence as 1149T? 5 A. Is that -- I'm sorry, 21st of June of 2000? 6 Q. I'm sorry. That is that same call, correct, yes. I'm 7 sorry. 8 A. Yes, I was told that there was a problem with that call. 9 Q. And was that the reason then that that was sent out to be 10 changed into some different format? 11 A. Well, it was put on that to be provided down to ERF to see 12 if there was anything they could do, yes. 13 Q. What's ERF? 14 A. Engineering Research Facility. 15 Q. That's the one at Quantico? 16 A. That's the one at Quantico. 17 Q. Now, sir, turning to the question of whether there were any 18 calls that had been taken to Ontrack in Minneapolis that were 19 contained on this Government Exhibit 1000, your testimony is 20 that you made a mistake because you were consulting a list, 21 correct? 22 A. That's correct. 23 Q. And is it your testimony that when Ms. Baker asked you, 24 based on the documentation that you have consulted, are there 25 any calls that were taken to Minneapolis, that that was your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4783 48JLSAT4 Kerns - cross 1 answer, correct? 2 A. That's correct. 3 Q. So the documentation that you were referring to was the 4 documentation from the list that you made, correct? 5 A. Yes. 6 Q. Excuse me, your Honor. 7 (Pause in proceedings) 8 Q. Do you recall your at your first appearance my asking you 9 this question: 10 Did you track the recovered conversations that this 11 contractor -- page 3527, Counsel -- Did you track the recovered 12 conversations that this contractor was able to make thereafter 13 to see if any of those were ones that wound up on Government 14 1000? 15 And your answering: 16 I looked at Government 1000 relating to what I knew 17 was missing prior to the trip and I did not see anything that 18 was -- excuse me, I looked at Government Exhibit 1000 related 19 to what I knew was missing prior to the trip, but I did not see 20 anything that was -- I am sorry -- I did not see anything from 21 the list compared to what I was missing before, compared to 22 what we were missing today that matches Government Exhibit 1000 23 as it being -- that it had been one of those tapes and had 24 been -- and had come back. 25 Do you remember that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4784 48JLSAT4 Kerns - cross 1 A. Yes, I do. 2 Q. And do you also remember answering, on Page 3528: 3 Okay, I did review Government Exhibit 1000L, which I 4 have here, which is part of -- which is the document associated 5 with Government 1000 -- Exhibit 1000, I believe, and I did not 6 see any calls that were missing prior that are now on there. 7 Do you remember that? 8 A. Yes, I do. 9 Q. So isn't it a fact, sir, that you had here, right with you, 10 Government Exhibit 1000 and 1000L at the time you answered that 11 there were no calls on there? 12 A. Yes. 13 Q. From the Minneapolis trip, right? 14 A. Yes, that was my testimony at that time, yes. 15 Q. And it was a mistake? 16 A. Yes, it was. The list I relied on was incorrect. 17 Q. But there's no question in your mind, sir, is there, that 18 you had looked at Government Exhibit 1000L before coming to 19 court, correct? 20 A. Oh, no. I had reviewed it. In fact, I believe I had 21 signed it. 22 Q. The 33 tapes that you took to Minneapolis, had you before 23 taking them there made any effort to, inside the FBI, to get 24 anything off them? 25 A. Yes, we had. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4785 48JLSAT4 Kerns - cross 1 Q. And would you tell the jury please what those efforts were? 2 A. It was the same effort that we had done with all the tapes 3 we thought were associated with this case, which was people who 4 worked with me had used the converters that we had in our 5 office and had tried to convert those tapes. However, after 6 multiple opportunities and the tapes continuing to fail, there 7 was a time where we had made the decision that we were going to 8 have to go to some sort of outside contractor in order to get 9 the information off of these tapes because we could not do it 10 internally. 11 Q. And when you say "do it internally", you mean the people -- 12 you couldn't do it in New York and the people in Quantico 13 couldn't do it, right? 14 A. That's correct. In fact, we had tried -- they had also 15 tried to convert some of our tapes and were not able to. 16 Q. Now, as of the time that you began the process of data 17 conversion, or became involved in the process of data 18 conversion here, about how many Lockheed Martin tapes did you 19 have in the New York office? 20 MS. BAKER: Objection, relevance. 21 THE COURT: Overruled. 22 THE WITNESS: Your Honor, I don't feel comfortable 23 answering that due to -- that type of information is 24 classified. 25 THE COURT: Could you rephrase? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4786 48JLSAT4 Kerns - cross 1 MR. TIGAR: Let me approach it a different way. 2 THE COURT: All right. 3 BY MR. TIGAR: 4 Q. On the 16th of April, 2003, did you draft a memorandum 5 concerning problematic tapes? 6 A. I believe I did, yes. 7 Q. And then you said there were -- and did you tell whoever 8 received this, somewhat at Investigative Technology, right? 9 A. Investigative Technology Division, that's correct. 10 Q. Where are they? 11 A. That is essentially the Engineering Research Facility. 12 They are -- all of -- almost all of Investigative Technology is 13 located at ERF. 14 Q. And that's in Quantico? 15 A. That's in Quantico. 16 Q. And you told them that there were 360 problematic Lockheed 17 Martin tapes, correct? 18 A. That's -- yes, that is correct. 19 Q. So let me ask again: What percentage of the total number 20 of Lockheed Martin tapes did that 360 problematic ones 21 represent? 22 MS. BAKER: Objection. Irrelevant and classified. 23 THE COURT: All right. Sustained. 24 Q. How many Lockheed Martin tapes did you copy in order to 25 obtain the files that were produced for the United States SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4787 48JLSAT4 Kerns - cross 1 attorney's office in connection with this case? 2 A. I believe we converted -- I don't know the exact number. I 3 think it was somewhere in the neighborhood of anywhere from 100 4 to 200. 5 Q. What were the problems with the 360 Lockheed Martin tapes 6 that were problematic? What was the problem? 7 MS. BAKER: Objection. Irrelevant to the extent it 8 relates to tapes outside of this case. 9 THE COURT: I'm sustaining. 10 Q. What percentage of the 360 tapes which you said were 11 problematic related to calls that were relevant to this 12 investigation? 13 A. I don't know how many of those. I don't know how many of 14 those tapes we considered part of this case. At minimum, we're 15 talking about 33. That was drafted because we were looking at, 16 quite frankly, the conversion of all of our assets over to MO's 17 for archiving purposes. And that memo was drafted because we 18 had scanned all of our tapes in inventory and had realized that 19 we had a problem with some of them and that we were going to 20 have to look at a long-term contract in order to convert 21 everything. 22 Q. Well, you say at a minimum there were 33. Have you gone 23 back to find out -- let's see, 33, 360 -- that would be 327 -- 24 whether any of the files produced in connection with this case 25 are on the 327 files that didn't go to Minnesota? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4788 48JLSAT4 Kerns - cross 1 A. No, because if I had drafted that on April 16th, we were 2 down to the point -- that was right around the time that we 3 realized we had to go and -- we had to take the tapes to an 4 outside contractor. So if they had been part of that 360 and 5 we believed there was evidence on them, they would have gone 6 with me. 7 Q. Did you make a memo that ever reflected that those were the 8 only ones -- the only calls that were relevant to this 9 investigation were ones that were on the 33? 10 A. No. 11 Q. In fact, sir, you asked Investigative Technology to help 12 you recover the whole 360, didn't you? 13 A. Yes. 14 Q. Now, eventually, you got a response from ERF, didn't you, 15 sir? 16 A. I believe I did, yes. 17 Q. And they told you that they had attempted to work on 18 whatever you'd sent them, correct? 19 A. Yes, that is correct. 20 Q. And they also told you that they could not determine if any 21 data loss had occurred, correct? 22 A. Yes, I believe that the engineer who had worked on it 23 provided me that information. 24 Q. And they also told you that this was due to the lack of an 25 external database, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4789 48JLSAT4 Kerns - cross 1 A. That's correct. 2 Q. When they told you that this inability to determine whether 3 there was data loss was due to the lack of an external 4 database, what did you understand that to mean? 5 A. What I had testified to previously: The fact that we do 6 not know how many calls total there are for this case because 7 we don't have a database that says, if I run a telephone 8 number, that there are 10,000, 12,000, 15,000 calls -- I don't 9 have anything like that. The system was never built to do 10 anything like that. So when he says that, he can't tell me if 11 he converts a tape and there are 5,000 audio pieces on that, he 12 does not know if there are -- should be 5,010. 13 Q. Now, let's go back. Each one of these electromagnetic 14 tapes has 14 gigabytes on it? 15 A. 14 gigabytes, correct. 16 Q. And those gigabytes, that's a lot of data? 17 A. Yes, it is. 18 Q. They are not organized into separate files, correct? 19 MS. BAKER: Objection. Lack of personal knowledge. 20 THE COURT: Ask a foundation question. 21 MR. TIGAR: Sure. 22 Q. Do you know whether or not the information on these EMTs, 23 electromagnetic tapes, is in separate files like an individual 24 VOC file would be in what you've testified to here, or not? 25 A. I do not -- I know they are not separated the way the VOC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4790 48JLSAT4 Kerns - cross 1 files are from the Raytheon system, but how they are placed on 2 the tapes, that, I don't know how that is. 3 Q. That's fine. Now, an external database would be that there 4 would be some list apart from the actual tape itself that would 5 say, This is the call; this is when it was made, and so on, 6 correct? 7 A. That's correct. 8 Q. And so what you understood from the correspondence you had 9 is that there is no way to tell from the EMTs, electromagnetic 10 tapes you have, whether you've got all the calls made to or 11 from a target number? 12 A. Yes, there was no database that I could compare that to. 13 That's correct. 14 Q. Now, you did have the tech logs that you could look at, 15 right? 16 A. That was for pertinent calls, correct. 17 Q. That was -- I'm sorry? 18 A. That was pertinent calls, correct. 19 Q. So that did not cover the whole universe of calls done 20 across the investigation? 21 A. No. 22 Q. Now, in addition, taking a step beyond that, when you went 23 to Minnesota, did the contractor that you had hired -- you were 24 responsible for supervising that contractor, correct? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4791 48JLSAT4 Kerns - cross 1 Q. And what did you do to supervise the contractor? 2 A. I was located in their space the entire time that they were 3 copying the tapes. 4 Q. And after they got done with whatever they were doing, they 5 sent the FBI a bill, correct? 6 A. They actually gave it to me, yes, and I brought it back to 7 New York. 8 Q. Now, do you know whether that bill was paid? 9 MS. BAKER: Objection. Relevance. 10 THE COURT: Sustained. 11 Q. Well, how much was the bill for? 12 A. I believe it was for about $85,000. 13 Q. And do you remember what they said they did for that? 14 A. I believe so, yes. 15 Q. Would it help you if I gave you the bill to refresh your 16 recollection? 17 A. Yes, it would. 18 MR. TIGAR: May I approach, your Honor? 19 THE COURT: Yes. 20 MR. TIGAR: Thank you. 21 BY MR. TIGAR: 22 Q. Now, you see an item on there for $29,344? 23 A. Yes, I do. 24 Q. And that's for what? 25 A. That is for diagnosis. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4792 48JLSAT4 Kerns - cross 1 Q. When you were supervising them in there, what diagnosis 2 were they doing? 3 A. They took a tape, they put it into the player and they 4 attempted to copy it. 5 Q. Now the word "diagnosis", what does that mean to you? 6 A. That means they -- 7 Q. I'm not talking about tape. Just the English word 8 "diagnosis". 9 MS. BAKER: Objection. Relevance. 10 THE COURT: Sustained. 11 Q. Well, what diagnostic information, if any, did you get? 12 A. I didn't receive any type of diagnostic information. I was 13 charged -- if they could copy the tape, I was charged for 14 copying. If they could not, they charged us a fee to attempt 15 to copy it. That was the diagnosis. 16 Q. Well, is there -- after the 25,344 for diagnosis, how much 17 is on there for the next thing? 18 A. For data recovery, it was 59,400. 19 Q. And the data recovery means they copied it, right? 20 A. Right, they were able to copy the tape. 21 Q. So the diagnosis was when they weren't able to? 22 A. That's right. They attempted to but they weren't able to. 23 That's correct. 24 MR. TIGAR: May I approach, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4793 48JLSAT4 Kerns - cross 1 Q. Did they have any partial successes on some of them? 2 A. I believe on one of them they were only able to 3 approximately -- I think it was 40 percent, maybe 50 percent, 4 before it just stopped and we couldn't process it anymore. 5 Q. After you came back from Minneapolis, did you review any of 6 the other 327 tapes to see if they related to calls that were 7 at issue in this case? 8 A. No, I don't believe we did. 9 Q. Well, do you have a list of the other 327 tapes -- 10 A. No. 11 Q. -- that are problematic? 12 A. No, I do not. 13 Q. Is there any way that a person who wanted to know whether 14 or not any of those 327 tapes had calls that wound up in 15 evidence in this case would -- you know, was on there? 16 A. No, the only thing we could go by was the fact -- the dates 17 and the times of the tapes and whether we could read it to find 18 out if there was any evidence on them. So if we could not -- 19 if we could not read the tape, we wouldn't know if they were 20 missing anything. But that's why we took 33 tapes, because not 21 all those tapes, we knew, had evidence on them. There were 22 some of them that were during the time periods that we were 23 missing calls, pertinent calls, which also of course had 24 nonpertinent, and that's why we took as many as we did. 25 Q. But my question, sir, is: Is it your testimony that there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4794 48JLSAT4 Kerns - cross 1 is no list in the Bureau -- at the Federal Bureau of 2 Investigation that you know of of those 327 tapes? 3 A. No, there is not. 4 Q. And so is it your testimony that there is no way, based on 5 the records you now have, that this Court and jury can check 6 and see whether any of those calls that are in evidence were on 7 the 327 tapes that you all identified as problematic? 8 A. No, there is no way to check. 9 Q. Now, after your memorandum that we've been talking about 10 here that you sent down to ERF about these problematic tapes, 11 what'd y'all do with the 327? 12 A. They're still located in our computer room. 13 Q. You never sent them to Quantico? 14 A. No, we did not. 15 Q. Now, back when you sent that memo which we were talking 16 about, you had suggested that you'd get an outside contractor 17 to transfer all of the data, the whole 360, right? 18 A. I had asked whether that was a viable option in that 19 memorandum, that's correct. 20 Q. You requested them to locate and fund a contractor, did you 21 not? 22 A. Yes, I did. 23 Q. Did you ever hear back on that request? 24 A. I don't remember if I ever got a memorandum back, but based 25 on the fact of what I got to do 33 tapes, it was not that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4795 48JLSAT4 Kerns - cross 1 well -- it was just not in the budget to do something like 2 that. 3 Q. Not in the FBI's budget? 4 A. That's correct. 5 MR. TIGAR: May I have just a moment, your Honor? 6 THE COURT: Sure. 7 BY MR. TIGAR: 8 Q. In addition to the tapes that you've told us about that you 9 took out to Minneapolis, was there a tape that was 00040G, as 10 in Gulf, 31? 11 A. I'd have to review documentation. 12 Q. All right. May I approach, your Honor? 13 THE COURT: Yes. 14 Q. I'm going to place in front of you this item 3525V. Take 15 your time. I'll take my sticky notes off. Do you see those 16 two tapes there? 17 A. Yes. It is -- there are two listings for that same tape, 18 that's correct. 19 Q. And there are two exhibit numbers, correct? 20 A. Yes, there are. 21 Q. 1059T and 1060T? 22 A. Actually, I believe it's 1060 and 1061. 23 Q. I'm sorry, 1060 and 1061T. Thank you, Agent. 24 Now, do you remember having any particular problems 25 with this 0004G31? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4796 48JLSAT4 Kerns - cross 1 A. I would have to review, because -- I'd have to review any 2 memorandums or electronic communications that I wrote 3 regarding -- 4 Q. Have you exhausted your recollection? 5 A. Yes, I have. 6 Q. All right. 7 MR. TIGAR: May I approach, your Honor? 8 THE COURT: Yes. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4797 48JJSAT5 Kerns - cross 1 Q. I have made some markings on this, but I am just going to 2 show you 3525 W and ask you to take a look at that and see if 3 that refreshes your recollection? 4 A. Yes, it does. 5 Q. With your recollection -- do you need to keep this or can I 6 take it back? 7 A. No. That is all right. 8 Q. With your recollection thus refreshed, sir, what can you 9 tell the jury about this tape? 10 A. That and there was another tape listed for examples of the 11 problems that we were having with converting some of the tapes 12 and the broader list of 360. 13 Q. Now, did you take that tape to Minneapolis? 14 A. I'd have to review my list. I don't know if I did. I 15 don't think I did. 16 MR. TIGAR: May I approach, your Honor? 17 THE COURT: Yes. 18 (Pause) 19 MR. TIGAR: Excuse me, your Honor. May I have a 20 moment? 21 THE COURT: Sure. 22 (Pause) 23 BY MR. TIGAR: 24 Q. When you received the tapes back from on-track, you had a 25 receipt, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4798 48JJSAT5 Kerns - cross 1 A. That's correct. 2 Q. And that receipt listed all of the tapes that had been 3 taken out there, correct? 4 A. Yes, it did. 5 Q. Is that the document that would refresh your recollection 6 as to what you took to Minneapolis? 7 A. Yes, it could. 8 Q. All right. 9 MR. TIGAR: May I approach, your Honor? 10 THE COURT: Yes. 11 (Pause) 12 BY MR. TIGAR: 13 Q. Now, I am showing you what has been marked here as 3525 P. 14 Could you look on there, please, and see if that tape 15 is on there? 16 A. No, it is not. 17 Q. So Government Exhibit 106O and 1061 also come from a 18 problematic tape, right? 19 A. Yes, it did. 20 Q. What was the problem with that tape? 21 A. I don't know specifically, but it obviously had been 22 converted because it if hadn't, it would have gone with me. 23 Q. But as you sit there today, you don't remember what the 24 problem was? 25 A. When I wrote that memorandum, the problem was was that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4799 48JJSAT5 Kerns - cross 1 put in a tape and it would not, it would not convert for us. 2 Q. Was this a tape that then was processed down in Quantico? 3 A. I'd have to review any documentation coming back to us. It 4 could have either been processed there or they might have been 5 able to copy it, send it back and process it here in New York. 6 I don't know. 7 Q. Would it refresh your recollection if I showed you a 8 memorandum to your attention on the 7th of July, 2003? 9 A. Yes, it would. 10 MR. TIGAR: May I approach, your Honor? 11 THE COURT: Yes. 12 (Pause) 13 BY MR. TIGAR: 14 Q. Now, this is 3525 X. Does that refresh your recollection 15 about that problematic tape? 16 A. Yes, it does. 17 Q. With your recollection refreshed, what can you tell the 18 court and jury about that problematic tape? 19 A. That the people at the Engineering Research Facility were 20 able to copy the tape, and they sent both the original and the 21 copy back to us. 22 Q. This us a memorandum approved by several people down at 23 ERF, right? 24 A. That's correct. 25 Q. One of those people was a man by the name of Michael SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4800 48JJSAT5 Kerns - cross 1 Elliot, correct? 2 MS. BAKER: Objection, hearsay. 3 THE COURT: Overruled. 4 A. I believe his name is on one of the signature lines, that's 5 correct. 6 BY MR. TIGAR: 7 Q. As approved by, right? 8 A. That's correct. 9 Q. In FBI parlance, "approved by" means I approved this and it 10 goes forward, correct? 11 A. Yes, it does. 12 Q. Have you ever discussed this particular problematic tape 13 with Mr. Elliot? 14 A. I don't believe so, no. 15 MR. TIGAR: May I have just a moment, your Honor? 16 THE COURT: Yes. 17 (Pause) 18 MR. TIGAR: I have no further questions of the 19 witness, your Honor. 20 THE COURT: All right. 21 MR. RUHNKE: May I, your Honor? 22 THE COURT: Yes, Mr. Ruhnke, you may. 23 CROSS EXAMINATION 24 BY MR. RUHNKE: 25 Q. Agent Kerns, how do you pronounce your name? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4801 48JJSAT5 Kerns - cross 1 A. Kerns. 2 Q. Agent Kerns, one of the documents or medium you identified 3 today was Government Exhibit 1700. Is that correct? Do you 4 still have that in front of you? 5 A. Let me take a look. 6 MS. BAKER: Your Honor, it is Government Exhibit 1730. 7 BY MR. RUHNKE: 8 Q. 1730? 9 MS. BAKER: I am sorry. The witness does not have it 10 in front of him any more. Would you like me to hand it up? 11 MR. RUHNKE: Yes, please. Thank you. 12 (Pause) 13 A. Yes, this is a CD that I made, that's correct. 14 BY MR. RUHNKE: 15 Q. It was placed on a CD as opposed to a DVD because you 16 didn't need as much room? 17 A. That's correct. 18 Q. Is it written on there "prison calls," is that what is 19 written on there? 20 A. Yes, that's what I wrote, that's correct. 21 Q. As far as you know, of your understanding, there were calls 22 made from the Bureau of Prisons' facility in Rochester, 23 Minnesota, which is where the Federal Medical Center is at 24 Rochester, to various numbers in New York City. Is that 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4802 48JJSAT5 Kerns - cross 1 A. That is my understanding, that is correct. 2 Q. And they were made from two particular numbers in Minnesota 3 to actually various attorneys' offices in New York City, Is 4 that correct, to your understanding? 5 A. My understanding, I only had the list of two numbers from 6 Minnesota, 507 area codes, but I didn't know who they were 7 calling here in the New York area or anywhere else. 8 Q. But is it your understanding they went to attorneys' 9 offices? 10 A. It was my understanding that they were attorney calls, yes. 11 Q. Is it your understanding that the parties to the calls were 12 not aware they were being tape recorded? That was the whole 13 idea, right? 14 A. I don't believe that they knew that these calls were being 15 recorded. 16 Q. Are you aware that there were a total of approximately 63 17 such calls intercepted successfully by the FBI during this 18 period of surveillance? 19 A. I don't know how many were recorded. I only had a list 20 from the U.S. Attorney's Office from the ones that they wanted 21 that were recorded by the systems and the computer room where I 22 work. 23 Q. Has anyone ever told you there were a total of 63 calls? 24 MS. BAKER: Objection. Hearsay. 25 THE COURT: Sustained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4803 48JJSAT5 Kerns - cross 1 BY MR. RUHNKE: 2 Q. Approximately how many calls were you asked to retrieve by 3 the United States Attorney's Office? 4 A. It varied at different times. The most recent request was 5 essentially there were three -- there are four calls on here, 6 but they essentially are three because one is broken in half. 7 Q. At one point were you asked to retrieve as many as 25 8 calls? ? 9 A. I don't know how long that list was, but there was a good 10 amount of calls on there. 11 Q. If I showed you a document marked GX 3525 B1, would that 12 refresh your recollection? 13 A. Yes, it would would, sir. 14 MS. BAKER: For the record, your Honor, the exhibit 15 number of that document was corrected to C 1. 16 MR. RUHNKE: C 1. I stand corrected. 17 THE COURT: All right. 18 MS. BAKER: I have a hearsay objection to this 19 question as well. 20 THE COURT: I think it is just to refresh his 21 recollection. If he knows. 22 A. Okay. 23 BY MR. RUHNKE: 24 Q. Does that refresh your recollection about how many calls 25 you were asked to actually transfer, prison calls? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4804 48JJSAT5 Kerns - cross 1 A. Yes, it does. 2 Q. Was that 25? 3 A. Yes, it was. 4 Q. The decision as to which calls to transfer and use on the 5 final trial exhibit, that was not your decision. Is that 6 correct? 7 A. No. 8 MR. RUHNKE: Thank You. Nothing further. 9 THE COURT: All right. Thank you. 10 REDIRECT EXAMINATION 11 BY MS. BAKER: 12 Q. Special Agent Kerns, Mr. Tigar was asking you on 13 cross-examination some questions regarding your memorandum, 14 dated April 16th of 2003. Do you remember those questions? 15 A. Yes, I do. 16 Q. That was the memorandum in which you referred to the fact 17 that there were approximately 360 problematic tapes? 18 A. Yes, that's correct. 19 Q. Now, when you used the phrase "problematic" in that memo, 20 what did you mean? "Problematic" in terms of what? 21 MR. TIGAR: This is the Lockheed Martin system. Based 22 on the fact we were having some problems, we attempted to scan 23 every single tape, whether it had anything to do with this case 24 or not, every single tape in our inventory because we wanted to 25 find out how bad this problem was because if we had another SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4805 48JJSAT5 Kerns - cross 1 case like this or if we had to bring other evidence or any of 2 these calls forward on any type of particular request. 3 When I did that, what they did was they attempted to 4 scan. When I say "scan," they put a tape in and they tried to 5 begin the process of converting it. If it didn't work, we 6 realized we had a problem, but that was basically what they had 7 tried, the people who work with me, to do because we wanted to 8 find out where our issue lied and so that we could move forward 9 across the board, not just with the evidence from this case. 10 Q. Now, if a call eventually was put on one of the DVDs or CDs 11 that you've testified about at this trial, what does that mean 12 as far as whether or not the FBI either on its own or with the 13 assistance of the company in Minnesota, whether or not there 14 was success in converting at least a percentage of the contents 15 of that tape? 16 A. If we have the tape in court -- sorry -- if we have the 17 call in court, that means it was converted into the .VOC 18 format. 19 Q. So even if a particular tape was viewed as problematic, at 20 some point in the past, if a call from that tape is on a disc 21 that is here at trial, that means the problem was overcome -- 22 MR. TIGAR: Excuse me. 23 Q. -- to convert? 24 THE COURT: Yes. 25 MR. TIGAR: Objection. Leading. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4806 48JJSAT5 Kerns - cross 1 THE COURT: Yes, sustained. 2 BY MS. BAKER: 3 Q. If a call is on a disc that you have testified to about 4 here at trial, what does that mean as far as whether or not you 5 were able to overcome what you were referring to as the problem 6 at the time that you wrote this memorandum in April of 2003? 7 A. It means that we were able to overcome the problem and the 8 tape was able to be converted to MO's because everything from 9 here, all of the calls for this case that are in evidence came 10 from MO's or from the Raytheon system, but more importantly, 11 the Lockheed Martin system, the tape was converted because I 12 used an MO reader to pull all the calls for this case. 13 MS. BAKER: Your Honor, may I have a minute? 14 THE COURT: Yes. 15 (Pause) 16 MS. BAKER: Your Honor, I have no further questions. 17 MR. TIGAR: Confined to redirect, your Honor, may I 18 inquire? 19 THE COURT: Yes, could be find to redirect. 20 RECROSS-EXAMINATION 21 BY MR. TIGAR: 22 Q. Agent, I just want to ask you about your last series of 23 answers about the conversion. 24 No. 1, sometimes the conversion to .VOC gave you a 25 file that needed to be processed further, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4807 48JJSAT5 Kerns - cross 1 A. I don't know in that context. I don't think I understand. 2 If you had a tape, it would convert that call to .VOC. 3 Now, as you had pointed out, one of the tapes that we 4 attempted to copy in Minnesota only copied 40 percent, which 5 means it was still in the Lockheed Martin format. I am a 6 little confused what you mean by conversion of a call. It 7 either converted it or it didn't. 8 Q. Do we have some calls in evidence here that are in a .WAV 9 format? 10 MS. BAKER: Objection. Lack of personal knowledge. 11 THE COURT: Well, do you know? 12 THE WITNESS: The only calls that I know that are in 13 .WAV format were calls that were provided -- the only calls I 14 know that are in .WAV format are calls I provided to ERF in 15 .VOC format, at which point they converted them to .WAV because 16 that is how they do it. 17 BY MR. TIGAR: 18 Q. So there were some calls that were in .VOC format, but that 19 in order to have them in evidence in this case, were further 20 processed, correct? 21 MS. BAKER: Objection. Misstates the record. 22 THE COURT: Well, do you know? 23 THE WITNESS: As far as I know, your Honor, the calls 24 on this prison CD and the other CD that is listed here, they're 25 in .VOC format, and I believe that everything I have testified SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4808 48JJSAT5 Kerns - cross 1 to regarding things that I put into evidence are in .VOC 2 format, but I do know that in the case of the prison calls, 3 that when ERF does their work, they change it to .WAV format. 4 But you can still listen to these calls -- sorry. Not 5 the prison calls. My correction. 6-21-2000 calls. 6 MR. TIGAR: May I show him Exhibit 1315 now, your 7 Honor? 8 MS. BAKER: The witness has no personal knowledge of 9 the disc that came back from ERF. 10 THE COURT: You can show him 1315. 11 BY MR. TIGAR: 12 Q. 1315 L, is that your signature? 13 A. Yes, it is. 14 Q. Does that mean you have personal knowledge of the contents 15 of the document? 16 A. Yes, it does. 17 Q. What is your understanding about the process that is 18 reflected from the .VOC to the .proc .WAV? 19 A. I don't know what the process is. The .VOC on file named 20 GX 1315, those were the calls I provided down to ERF, and I am 21 assuming the file name GX 1315 C is how they came back from 22 ERF. 23 Q. Now let's talk about the calls that are on the discs you 24 have and the others that are in the .VOC format, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4809 48JJSAT5 Kerns - cross 1 Q. When a file is in .VOC format, that doesn't mean that a 2 person preparing a transcript of it can hear everything that is 3 on it, correct? 4 MS. BAKER: Objection, your Honor. This is beyond the 5 scope of redirect. 6 THE COURT: Sustained. 7 BY MR. TIGAR: 8 Q. When a file is in .VOC format, sir, does that mean there 9 are no technical problems left with it? 10 MS. BAKER: Objection. Beyond the scope. 11 THE COURT: Limit it to the scope of redirect. 12 MR. TIGAR: The objection is sustained, your Honor? 13 THE COURT: Yes. I am saying limit it to the scope of 14 redirect. 15 MR. TIGAR: Then I have no further questions. Thank 16 you. 17 THE COURT: Okay. 18 MS. BAKER: Your Honor, one more question. 19 THE COURT: Limited to the scope of recross. 20 REDIRECT EXAMINATION 21 BY MS. BAKER: 22 Q. Agent Kerns, Mr. Tigar was just asking you about calls in 23 .VOC format. Would you look, please, at Government Exhibit 24 1315, which is one of the discs. 25 A. I have it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4810 48JJSAT5 Kerns - cross 1 Q. Did you make that disc? 2 A. Yes, I did. 3 Q. In what format are the calls on that disc? 4 A. They're in .VOC format. 5 MS. BAKER: Thank you. 6 THE COURT: All right. No further questions? Agent 7 Kerns, you're excused. You may step down. 8 (Witness excused) 9 THE COURT: All right. Ladies and gentlemen, it's 10 about 3:30, and time for us to break, to take our mid-afternoon 11 recess. Please remember my continuing instructions not to talk 12 about the case. Remember to keep an open mind until you have 13 heard all of the evidence and I've instructed you on the law. 14 (Jury excused). 15 THE COURT: All right. Please be seated, all. 16 There is an outstanding offer, which I take it is 17 Government Exhibits 1317, 1730 and 1317 L, and 1317 L and 1730 18 L. Am I right? 19 MS. BAKER: Yes, your Honor. As I stated earlier, the 20 offers of 1317 and 1730 -- that is, the discs -- are the 21 portions of the calls on the discs that correspond to the 22 excerpted transcripts that the government will later present. 23 THE COURT: All right. 24 MR. TIGAR: First, your Honor, as a technical matter, 25 the limitations should be that correspond to the excerpted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4811 48JJSAT5 Kerns - cross 1 portions that the government will offer because some of these 2 are... 3 Now, with respect to authenticity, I am not going to 4 waste -- 5 THE COURT: I am sorry. The portions that correspond 6 to the excerpted portions of the -- 7 MR. TIGAR: Reflected on the transcripts that will be 8 before the jury. 9 THE COURT: All right. 10 MR. TIGAR: Some of them are in English and will not 11 be in evidence. 12 THE COURT: Right. 13 MR. TIGAR: The language reflects that. 14 THE COURT: I am sure there is agreement on that. 15 MS. BAKER: Actually, your Honor, I really didn't 16 understand what Mr. Tigar said. 17 I am not offering the transcripts so I am not saying 18 that the English transcripts come in. 19 THE COURT: No. 20 MS. BAKER: I am offering the portions of the 21 recordings that are reflected in the transcripts. 22 THE COURT: Right, the portions of the recordings that 23 correspond to the excerpted portions that are reflected in the 24 transcripts. I'll let both of you work on it. I think that 25 the concept is the transcripts guide what is in evidence from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4812 48JJSAT5 Kerns - cross 1 the discs, whether it is the transcript which is an aid to the 2 jury to listen to the tape or whether it is the transcript 3 which is also in evidence. 4 MS. BAKER: Correct. 5 THE COURT: Okay. 6 MR. TIGAR: Your Honor, we have until Saturday to file 7 something with respect to the pending dispute, and I don't want 8 now to take the court's time and argue all of that dispute that 9 the court says -- if the court says it comes in, and later on 10 the court changes its mind, then we'll all know -- we all have 11 a position and we'll discuss it and we'll cite what we need to 12 cite. 13 I do want to point out that the Jencks material with 14 respect to the direct examination of this witness as to how 15 these tapes were handled included memoranda approved by Michael 16 Elliot, which is within the meaning of a statement. That is 17 what a statement is under the Jencks Act, a written statement, 18 adopted or otherwise approved. 19 So it is fairly clear to us that this was matter as to 20 which Mr. Elliot, who was proffered as an expert, that is to 21 say, knowing about the whole process, and as to whom as a 22 matter of fact there were questions about problems that had 23 arisen and so on on both direct and cross, that this is 24 material that we ought at that point to have had. 25 Also there are issues about Jencks production on Mr. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4813 48JJSAT5 Kerns - cross 1 Kerns. I am not, I am not going to argue those now because I 2 would like to file a memorandum about it and make sure that I 3 have made a complete record. 4 Based on the court's view of what constitutes 5 authentication under the law, I don't think I have a terrific 6 argument right now if that is the law of the case. Our point, 7 and I would like to say this because the court made some 8 observations about this the other day, that the calls to which 9 the court has listened provide some additional support, and I 10 understand the court's view about that. 11 What we're going to be saying at greater length is 12 that this is about process, that in the age of digital 13 technology, with files that are easy to change, with the 14 necessity for expert testimony to lay a foundation, process 15 hurdles must be cleared before you can start saying, gee, the 16 calls in evidence look fine. 17 Just as one would say that a laboratory result about a 18 chemical substance or physical specimen might on a particular 19 occasion be reliable, and yet would be excludable because the 20 system by which it was obtained fails to meet the standards. 21 As I say, that is a contention we'll raise at greater 22 length. I understand what the law of the case means, and I am 23 not going to waste the court's time by trying to climb that 24 hill. 25 MS. BAKER: Your Honor, I am not going to reiterate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4814 48JJSAT5 Kerns - cross 1 arguments that have already been made at length and on which 2 the court has already ruled. I note only at this time the 3 government is offering the calls on Government Exhibit 1317 and 4 the calls on Government Exhibit 1370. 5 THE COURT: 1730. 6 MS. BAKER: Sorry. Thank you. 1730. 7 Nothing in the Jencks material that has been produced 8 and nothing in Mr. Tigar's examination today of Agent Kerns 9 indicates any particular issue with any of those particular 10 calls. So there is no reason whatsoever on the current record 11 for the court to make any different ruling regarding these 12 exhibits than it has with respect to the discs that were 13 previously received in evidence. 14 THE COURT: All right. 15 MR. TIGAR: I could, but it would be an excessive 16 indulgence. The court is ready to rule, correct? 17 THE COURT: Right. 18 MR. TIGAR: I'll file the papers. Thank you. 19 THE COURT: Government Exhibits 1317 and 1730 are 20 admitted, to the extent that the portions are admitted for 21 those portions that correspond to the transcripts. 22 Now, if the parties want to refine that, just let me 23 know after the break exactly how you'd like me to refine that 24 instruction, and I think I should give the instruction to the 25 jury now. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4815 48JJSAT5 Kerns - cross 1 (Government's Exhibits 1317 and 1730 received in 2 evidence) 3 THE COURT: Government Exhibit 1317 L and 1730 L are 4 received in evidence. 5 MR. TIGAR: Your Honor, may we reserve the 6 presentation of any limiting instructions until the time the 7 particular transcripts are offered? That has been our 8 practice. 9 Second, will your Honor tell the jury that the weight, 10 if any, to be given to this evidence is for the jury? 11 THE COURT: I'll give that instruction. The other 12 instruction about the extent that 1317 and 1730 are admitted, 13 give me the language that you all want me to use, and I'll give 14 that along with the weight to the jury when they come back, and 15 those exhibits are admitted. 16 Another question while we're on it. We had this 17 discussion the other day as to whether the originals of the 18 recordings for the prison visits were in evidence, and the 19 parties were going to check that issue and what was the 20 instruction, instruction was with that. I don't know if you 21 have done that. You don't have to do it immediately. You 22 should report back to me on it because there was agreement and 23 people were not sure what the record looked like, all right? 24 We'll take five minutes. 25 MR. RUHNKE: May we ask way the government is going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4816 48JJSAT5 Kerns - cross 1 from here the rest of the afternoon, to see if we need to talk 2 about any instructions on transcripts and English and other 3 languages. 4 MR. MORVILLO: We're actually going to talk about that 5 amongst ourselves right now, your Honor, and we'll let you 6 know. 7 MR. RUHNKE: Thank you. 8 THE COURT: We'll take 10 minutes. 9 (Recess) 10 THE COURT: First, let me just ask, what is the 11 construction, precise construction for 1730 and 1317? 12 MS. BAKER: Your Honor, the parties have agreed upon 13 the following language: That the court is admitting the 14 portions of the recordings on those two discs that are 15 reflected in -- when Mr. Tigar and I discussed it, we just said 16 "transcripts," but we ask to amend that to say, "reflected in 17 the X transcripts that will be offered." 18 If your Honor would like, I wrote it out. If you 19 would like me to hand it up? 20 THE COURT: Sure. 21 (Pause) 22 MR. TIGAR: That is our agreement on the language, 23 your Honor. Our objection to admissibility is still there. 24 THE COURT: All right. Then also Government Exhibits 25 1317 L and 1730 L are received in evidence, and the weight, if SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4817 48JJSAT5 Kerns - cross 1 any, of this evidence is for the jury. 2 evidence) 3 MR. BARKOW: Your Honor, we are going to now proceed 4 to the reading of calls. The only call in this series that 5 should get the limiting instruction is 1087 X, and I was going 6 to start, since the court was going to admit 1317, start by 7 offering those X transcripts that correspond to the calls on 8 1317, and then we were going to proceed to the reading of 9 calls. We wanted to let the court know that 1087 is the one 10 that should get the limiting instruction. 11 THE COURT: Just give me a moment. 12 (Pause) 13 THE COURT: All right. 1087 X is received only as to 14 Counts 2 and 3. It is received subject to connection against 15 Mr. Sattar and I cannot be considered against Ms. Stewart or 16 Mr. Yousry for the truth of any of the matters asserted 17 therein. 18 Okay. All right. Let's call in the jury. 19 MS. BAKER: Your Honor, do you require the government 20 to renew its offer of 1317, 1317 L, 1730 and 1730 L in front of 21 the jury? 22 THE COURT: No. I am going to rule on them before the 23 jury. 24 MS. BAKER: I would ask then to be excused so I may 25 continue dealing with the outstanding document requests. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4818 48JJSAT5 Kerns - cross 1 THE COURT: All right. 2 (Jury present) 3 THE COURT: Please be seated, all. 4 Ladies and gentlemen, Government Exhibits 1730 and 5 1317 are received in evidence for the portions of the 6 recordings that are reflected in the X transcripts that will be 7 offered. 8 (Government's Exhibits 1730 and 1317 received in 9 evidence) 10 THE COURT: Government Exhibits 1317 L and 1730 L are 11 received in evidence. 12 (Government's Exhibits 1317 L and 1730 L received in 13 evidence) 14 THE COURT: The weight, if any, of this evidence is 15 for you, the jury, to determine. All right, the government can 16 proceed. 17 MR. BARKOW: Yes, your Honor. At this point, the 18 government offers into evidence the following transcripts: 19 Government Exhibit 1077 X. 20 THE COURT: All right. 21 MR. BARKOW: 1077 X, 1084 X, 1085 X, 1086 X, 1087 X, 22 1114 X, 1116 X, 1198 X, 1204 X, 1234 X, 1242 X. 23 THE COURT: Hold on. 24 (Pause) 25 THE COURT: All right. 1234? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4819 48JJSAT5 Kerns - cross 1 MR. BARKOW: 1234 X. May I have a moment, your Honor? 2 THE COURT: Yes. 3 (Pause) 4 MR. BARKOW: Yes, your Honor, 1234. 5 THE COURT: Where is that? 6 MR. BARKOW: That was on DVD 1317, and I believe the 7 subject of -- 8 THE COURT: I was just looking at 1317 L. 9 MR. BARKOW: May I have just a moment. 10 (Pause) 11 MR. BARKOW: We can hold off on that, your Honor, and 12 just deal with that. I think it is on 1300, actually. We can 13 hold off on 1234. We won't get to that. 14 THE COURT: 1234, you mean? 15 MR. BARKOW: 1234. I am sorry. We also offer 1242 X 16 and 1259 X. 17 THE COURT: All right. Those exhibits are received in 18 evidence. 19 (Government's Exhibits 1077 X, 1084 X, 1085 X, 1086 X, 20 1087 X, 1114 X, 1116 X, 1198 X, 1204 X and 1242 X received in 21 evidence) 22 THE COURT: All right. 23 MR. MORVILLO: With that, your Honor, the government 24 would request to read permission to read Exhibit 1084 X and 25 publish it to the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4820 48JJSAT5 Kerns - cross 1 THE COURT: All right. 2 MR. MORVILLO: May Mr. Forkner take the witness stand? 3 THE COURT: Yes. You may proceed. 4 MR. MORVILLO: Thank your Honor. 5 For the record, your Honor, this is a telephone call 6 on May 17th, 2000, at 10:32 pm, between Ahmed Abdel Sattar and 7 Rifa'l Ahmed Taha Musa. 8 (At this time, Government Exhibit 1084 X was displayed 9 and read) 10 MR. MORVILLO: At this time, the government requests 11 to display Government Exhibit 1085 X in evidence. 12 THE COURT: All right. 13 MR. MORVILLO: For the record, this is a call on May 14 17th, 2000, at 10:35 pm. 15 (At this time, Government Exhibit 1085 X was displayed 16 and read) 17 MR. MORVILLO: Your Honor, at this time, the 18 government requests permission to read Government Exhibit 1086 19 X in evidence and publish it to the jury. 20 THE COURT: All right. 21 MR. MORVILLO: If Mr. Forkner could read the 22 attributions to Salah Hashim, I'll read the attributions to 23 Rifa'l Taha Musa. For the record, this is a call on May 17th, 24 2000, at 10:41 pm. May Mr. Barkow stand at the podium, your 25 Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4821 48JJSAT5 Kerns - cross 1 THE COURT: Yes. 2 (At this time, Government Exhibit 1086 X was displayed 3 and read) 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 4822 48JLSAT6 1 (At this point, Government Exhibit 1086X, continuing, 2 in evidence, was displayed and read to the jury) 3 THE COURT: Whenever is a good time to break. 4 MR. MORVILLO: There's four pages left. About five 5 minutes left. 6 THE COURT: All right. It's 4:30. I think we should 7 break. I like to get the jury out at 4:30. 8 Ladies and gentlemen, we'll break for today and for 9 the week. And we'll see you on Monday morning. It's very, 10 very important that you follow all of my instructions very 11 carefully. Please, don't talk about this case at all among 12 yourselves or with anyone else when you go home, this weekend; 13 don't talk about the case at all. 14 Remember not to look at or listen to anything to do 15 with the case. If for some reason inadvertently you see or 16 hear something, just turn away. As I always tell you, as 17 jurors in this case, you are in the best position to hear all 18 of the evidence, and so please don't look at or listen to 19 anything outside of the courtroom and only when all of us are 20 here and court is in session. 21 Remember, always to keep an open mind until you've 22 heard all of the evidence, I've instructed you on the law and 23 you've gone to the jury room to begin your deliberations. 24 Fairness and justice to the parties requires that you do that. 25 With that, have a very good weekend and I look forward SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4823 48JLSAT6 1 very much to seeing you on Monday. 2 All rise, please? 3 Please follow the marshals to the jury room. 4 (Jurors exit the courtroom) 5 THE COURT: You may step down. 6 I wanted to stop at 4:30 because Mr. Fletcher reminded 7 me that one of the jurors had reminded him about a train. 8 The parties were going to check about -- you don't 9 have to do it now -- whether there was -- whether the record is 10 clear about what I accepted on the other tapes. 11 MR. MORVILLO: I don't think it is, your Honor. And 12 we will check and we will have the answer for you on Monday. 13 THE COURT: Okay. There was the issue of the 14 subpoenas that I asked the parties to talk about. The last 15 state the record was left was I received the letter, which I 16 discussed last Friday, from Miss Shellow-Lavine, and I said 17 that was a letter that modified limited subpoenas. And I said 18 I believed that it was a good idea with subpoenas limited for 19 the parties to talk about that rather than to talk about who 20 did or did not request a meet and confer, etc., but to talk 21 substantively about the narrowed subpoena. And I said that I 22 hoped that the parties could reach some agreement, but if they 23 couldn't, I'll decide the motion on the facts and the law. 24 But the government papers at this point are not 25 directed to the subpoena as narrowed. I realize that some of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4824 48JLSAT6 1 the requests are exactly the same; some are not. And so the 2 state of the record would be that I have asked the parties to 3 talk about it, and if the parties still can't reach an 4 agreement, the government should respond, even if it's to say, 5 these are the things that we've said before that still apply to 6 the narrowed subpoenas. 7 MR. DEMBER: Your Honor, I went through the letter, 8 once again, after the last time we had discussed this, and I've 9 let Miss Shellow-Lavine know that with respect to the second 10 item that was listed that I would inquire as to all those 11 materials requested, even though I think most of them have 12 already been turned over to the defense long ago. But if not, 13 I would make inquiry from the -- 14 THE COURT: No, no. Hold on. I realize that you did 15 talk about providing information about the SAMs. Did you talk 16 again after I gave my little talk last Friday? 17 MR. DEMBER: Yes, your Honor. 18 THE COURT: Oh. 19 MR. DEMBER: We did. Briefly. But more importantly, 20 after you gave your ruling, I went back and carefully reviewed 21 the letter again. And it was after that that I came to the 22 conclusion that with respect to the second item listed, I would 23 go about trying to make sure that the defense had all the 24 documents that pertained to that particular grouping of 25 documents. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4825 48JLSAT6 1 I've since -- briefly, unfortunately, but briefly 2 spoke with Miss Shellow-Lavine after that. I told her I would 3 agree to check with the institutions to make sure we have all 4 those documents, make sure they're turned over. But we could 5 not come to an agreement with respect to the other items 6 listed, and I will submit to your Honor this evening or 7 tomorrow, whichever your Honor prefers, a brief letter in reply 8 to their response and to this modification. 9 THE COURT: All right. Tomorrow is fine. 10 MR. DEMBER: Thank you. 11 THE COURT: When are the defendants going to now give 12 me their further submission with respect to the tapes issues? 13 We had said Friday -- we had said -- I had said -- I extended 14 it to Saturday. That was on the basis of -- 15 MR. TIGAR: Saturday is fine, your Honor. Because -- 16 THE COURT: That's fine. 17 MR. TIGAR: Well, nothing's happening tomorrow that 18 would get in the way of that. So we're still on the board for 19 Saturday, and I assume the government will come back on Tuesday 20 as they had said. 21 THE COURT: Okay. And then there was a briefing on 22 the additional motion by Ms. Stewart that Mr. Morvillo was 23 going to respond to next week. 24 MR. MORVILLO: One of us will respond to it, your 25 Honor, but yes, Monday. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4826 48JLSAT6 1 THE COURT: I gave a time to reply, I just don't 2 remember what it was. 3 MR. TIGAR: And then with respect to Ms. Baker's 4 letter, to which we are responding on Saturday, there were a 5 number of items as to which she was going to produce over to 6 the Court by August 20th, which is tomorrow. 7 THE COURT: Okay. 8 MR. TIGAR: In fact, your Honor, given that -- the 9 conjunction of those things, may we say Sunday instead of 10 Saturday for our reply? 11 THE COURT: Sure. 12 MR. TIGAR: And if she doesn't respond by the 20th, we 13 won't -- obviously we won't be able to get back on it. But I 14 assume she'll do what she said. 15 MR. MORVILLO: The 20th is tomorrow. 16 MR. TIGAR: The 20th is tomorrow, yes. 17 THE COURT: Okay. Anything else? 18 MR. BARKOW: Your Honor, can we have, since the 19 Saturday date would be Sunday, have until Wednesday instead of 20 Tuesday to reply? 21 THE COURT: Yes. Anything else? Okay. 22 MR. TIGAR: Your Honor, to give the Court -- I would 23 respectfully request that we not sit Friday, August 27th. I 24 know there are no plans to do so, but I simply inform the 25 Court -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4827 48JLSAT6 1 THE COURT: Sure. No problem. 2 MR. TIGAR: The matter of which the Court may be aware 3 will go on as planned. 4 MR. RUHNKE: Your Honor, while we're looking down the 5 road, I have a need to be in a court appearance in San Juan 6 Friday, September 17th, which happens to be one of the days of 7 the Rosh Hashanah holiday. I'm wondering how much time we're 8 taking off for the Rosh Hashanah holiday so I can make plans as 9 to when I can leave for San Juan. It's less than a month from 10 now. September 17 sound like a million years from now, but 11 it's about three and-a-half weeks. 12 THE COURT: Well, I would assume that we would sit -- 13 MR. RUHNKE: Talking to my colleagues who are Jewish, 14 they told me that sundown on Wednesday -- 15 MR. FALLICK: That's correct, your Honor. 16 THE COURT: I'll listen to the parties about what days 17 I should take off because there are holidays that either the 18 lawyers or the parties or the jury observe. And so... 19 MS. SHELLOW-LAVINE: Your Honor, if I could 20 respectfully request that on the 15th, which is the eve of Rosh 21 Hashanah, that we adjourn perhaps by 3:00, as I've got a fairly 22 long trip home. 23 THE COURT: Sure. I mean, I -- I'll defer to the 24 parties' plans. Why don't you -- I haven't looked at the 25 calendar. Why don't you talk among yourselves and let me know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 4828 48JLSAT6 1 All right? I'm willing to be flexible on all of those dates, 2 because I am. Okay. 3 See you on Monday at 9:15. Have a good weekend. 4 (Trial adjourned to August 23, 2004, 9:15 a.m.) 5 o 0 o 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 4829 1 INDEX OF EXAMINATION 2 Examination of: Page 3 SCOTT KERNS (cont.) 4 Direct By Ms. Baker . . . . . . . . . . . . 4755 5 Cross By Mr. Tigar . . . . . . . . . . . . . 4780 6 Cross By Mr. Ruhnke . . . . . . . . . . . . 4800 7 ReDirect By Ms. Baker . . . . . . . . . . . 4804 8 ReCross By Mr. Tigar . . . . . . . . . . . 4806 9 ReDirect By Ms. Baker . . . . . . . . . . . 4809 10 o 0 o 11 GOVERNMENT EXHIBITS 12 Exhibit No. Received 13 1317 and 1730 . . . . . . . . . . . . . . 4815 14 1730 and 1317 . . . . . . . . . . . . . . 4818 15 1317 L and 1730 L . . . . . . . . . . . . 4818 16 1077X, 1084X, 1085X, 1086X, 1087X, 17 1114X, 1116X, 1198X, 1204X and 1242X . . . 4819 18 o 0 o 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300