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