5000 648ULSAT1 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 30, 2004 8 9:45 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5001 48ULSAT1 1 (In open court; jury not present) 2 THE COURT: I'd like to talk to the lawyers, please. 3 (Whereupon, Page 5002 was sealed, per Court Order) 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5003 48ULSAT1 1 MR. TIGAR: Your Honor, it may -- I wanted to bring a 2 couple of matters to your Honor's attention, and I can do it 3 here. First, Ms. Shallow Lavine needs to leave the courtroom 4 at 12:45 today; she has an appointment across the street with 5 the Clerk's office, so she will be getting up and going. 6 THE COURT: Sure. 7 MR. TIGAR: The other thing is that over the last 8 several days, Mr. Morvillo and Mr. Barkow have been producing 9 technical problems reports relating to the translation 10 activities of Ms. Benjamin and Ms. Banout. They apparently 11 take the view that their Jencks Act obligation is limited to 12 those reports that relate to calls about which they have 13 testified in open court or about which they will testify in 14 open court. Our application for the technical problem reports 15 was much broader than that, and as to the non Jencks basis for 16 that application, we will brief it along with the Baker 17 matters. 18 However, with respect to Ms. Benjamin's forthcoming 19 appearance, it is our view that her technical problem reports 20 as they relate to all of her translation activity are 21 producible under the Jencks Act in part because she's tendered 22 as an expert. And thus, every time she appears, she's picking 23 up the strands of the process. And thus, within the statutory 24 term relating to the quote "subject matter" close quote of the 25 direct, those would be producible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5004 48ULSAT1 1 That's our position, and the Court -- we ask the Court 2 to rule that they be required to produce the as-yet unproduced 3 matters for your Honor's review as the first step. 4 THE COURT: Government? 5 MR. MORVILLO: Your Honor, Miss Benjamin and Miss 6 Banout are expert translators. They are not experts in 7 technology. The subject matter of their testimony is about the 8 translations that they've prepared from calls that we're using 9 in evidence here. As a result, arguably -- arguably -- 10 technical problem reports that they've prepared with respect to 11 calls that are being used here might relate to translation 12 issues. And thus, we have produced those documents to 13 Mr. Tigar and to the defense. 14 But technical problem reports related to calls that 15 we're not relying on here in evidence just don't fall within 16 the scope of the testimony of either Miss Benjamin or Miss 17 Banout, and therefore the government respectfully submits that 18 they are not 3500 material. 19 THE COURT: I agree with that. Otherwise, any 20 technical reports over the course of eight years working on the 21 case and dealing with calls that are not at issue at all would 22 be called for by the defense. I don't think that that's a 23 reasonable interpretation of the Jencks Act or the subject 24 matter of the -- what I understand to be the testimony of these 25 witnesses. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5005 48ULSAT1 1 Now, the only question then in my mind is, there was a 2 request that the Court review the materials, and there is a 3 provision of the Jencks Act that provides for court review. 4 The line that the government has drawn is, I believe, a correct 5 line. If the defense says, Okay, we've heard your ruling, but 6 now there are these other reports, you have to physically check 7 to see if those are reports relating to these calls, then 8 you -- I can review the statute, you can give it to me, and 9 give me any case law on that as to whether, under those 10 circumstances, I have to review all of the other reports to see 11 if, in fact, those reports relate to those calls. 12 MR. TIGAR: Your Honor, I think there's a disconnect 13 between Mr. Morvillo's answer and my contention, perhaps 14 because I didn't make it clear. We will, when we file the 15 Baker opposition, be making an application under many 16 provisions of law for the production of all of these technical 17 problem reports for some of the reasons we've stated. 18 Today, however, my application is much more limited 19 than that. I am not seeking -- we are not seeking the 20 technical problem reports for the universe of calls, the 80,000 21 or so. We're seeking the technical problem reports only for 22 the universe of calls that are in evidence in this case. As I 23 understand the government's position, they are not producing 24 under the Jencks Act technical problem reports for calls that 25 came in pursuant to stipulations as to what Miss Benjamin or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5006 48ULSAT1 1 Miss Banout would testify. 2 THE COURT: The government is shaking their head. 3 MR. MORVILLO: That's not true. At least, that wasn't 4 what we intended. Our proffer is that any call in evidence, by 5 stipulation, by testimony, that -- for which there was a 6 technical problem report would have been produced to you as 7 3500 material at this point. 8 MR. TIGAR: In that case, your Honor, I misunderstood 9 their letter, the "has testified" part of it, and we don't have 10 a Jencks application today. We'll have another application on 11 some future date. 12 And that is the government's representation? 13 Mr. Barkow is nodding his head yes; Mr. Morvillo is nodding his 14 head yes. We accept those representations. 15 THE COURT: Okay. While we're also waiting, when the 16 jury comes in, I will also introduce them to a new law clerk of 17 mine, Erica Platt. 18 And finally, I also point out that when I came in this 19 morning, there was a juror in the back corridor, so my law 20 clerks and I saw that and didn't enter the back corridor until 21 the juror was taken into the jury room. 22 Is there anything else while we wait? 23 MR. TIGAR: No. I'm pleased to report that I was not 24 held in contempt in Columbus, your Honor. The prosecution team 25 sent me a nice note saying they hoped I would not be, by a vote SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5007 48ULSAT1 1 of four to one. 2 THE COURT: Okay. 3 (Recess) 4 (Whereupon, Pages 5008 to 5014 were sealed, per 5 Court Order) 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5015 48ULSAT1 1 (Jury entering courtroom) 2 (In open court) 3 THE COURT: All right. Please be seated all. Good 4 morning ladies and gentlemen. 5 JURORS: Good morning. 6 THE COURT: It's good to see you all. Ladies and 7 gentlemen, the juror who sits in the Number 17 chair, Juror 8 Number 323, is ill. And I am going to excuse her from jury 9 service, and I'm going to write to her to express the wishes on 10 behalf of the Court and the trial participants and all of you 11 for her recovery and good health. And I wanted to explain all 12 of that to you to explain why Juror 323 is not here, and also 13 just to let you know that I would be expressing your best 14 wishes to her as well as those of the Court and all of the 15 trial participants. 16 And obviously there's nothing about my excusing 17 Juror 323 that has anything to do with anything that you have 18 to decide in the case, and that should not affect your 19 consideration or anything to do with the case at all. 20 On a second preliminary note, I would like to 21 introduce to you one of the law clerks who has -- will be 22 assisting me on the case, Erica Platt. If you can stand. 23 Thank you. 24 All right. Government? When we left off, we were -- 25 MR. BARKOW: Your Honor, at this point, your Honor the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5016 48ULSAT1 1 government requests permission to continue with the playing of 2 Government Exhibit 1711CX2 from the point where we left off 3 last week. 4 THE COURT: All right. 5 MR. BARKOW: Which is Page 73, Line 15, your Honor, in 6 Government Exhibit 1711X. Both are in evidence. 7 THE COURT: You want the jurors to put on their 8 headphones? 9 MR. BARKOW: Yes, your Honor. 10 THE COURT: Ladies and gentlemen, if you put on your 11 headphones with the dot facing forward. 12 MR. BARKOW: May we proceed, your Honor? 13 THE COURT: Yes. 14 MR. BARKOW: I'm sorry your Honor, I think one of the 15 juror's headphones is not working, actually. 16 THE COURT: Okay. Hold on. 17 (Pause) 18 THE COURT: Thank you. 19 (At this point, Government Exhibits 1711X, 1711CX2, in 20 evidence, were displayed and played for the jury) 21 THE COURT: Ladies and gentlemen, we'll take five 22 minutes. Just to make sure that any issues are taken care of. 23 We'll take five minutes. 24 Ladies and gentlemen, please remember my continuing 25 instructions not to talk about the case. Please, don't talk SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5017 48ULSAT1 1 about the case at all. And always remember to keep an open 2 mind until you've heard all of the evidence, I've instructed 3 you on the law, and you've gone to the jury room to begin your 4 deliberations. 5 See you shortly. All rise, please? 6 (Jury exits the courtroom) 7 (In open court; jury not present) 8 THE COURT: Please, have a seat. 9 MR. TIGAR: Your Honor, having reflected on this 10 question, I don't know what the Court's plan had been with 11 respect to notes taken by all of the jurors during the trial, 12 and now that this has come up, I would suggest that the notes 13 be sealed rather than disposed of. And that that be the 14 practice with respect to all notes of all jurors. 15 THE COURT: I have no problem seeing the notes of the 16 juror. My regular practice is the notes belong to the jurors 17 and the jurors can take them so that at the end of the trial, 18 the jurors would, if they wish, walk off. So -- but in this 19 case, I'll -- if the parties have that view -- 20 MR. TIGAR: If they could be kept for the time being 21 then and then we'll think more about -- your Honor's 22 practice -- I didn't know what your Honor's practice was, but 23 we would like them just kept under seal for the time being. 24 THE COURT: That's fine. Any objection, government? 25 MR. BARKOW: Not at this point, your Honor. If we do, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5018 48ULSAT1 1 we'll come back to the Court with it. 2 THE COURT: Okay. Let me know when the -- when this 3 is on. 4 MR. BARKOW: We will, your Honor. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5019 48U5SAT2 1 (Jury not present) 2 THE COURT: Can I talk to the lawyers for a moment? 3 Sorry to call you to side bar. 4 The jurors have expressed the desire to have the 5 temperature increased in the courtroom; they have expressed a 6 desire to not have the third van, which is all right; And 7 finally, they've expressed the desire to go out to lunch. 8 THE DEPUTY CLERK: I forgot to make any arrangements. 9 THE COURT: We will try to do that. They were 10 supposed to go out periodically for lunch but I think they've 11 only been out once so far. 12 MR. RUHNKE: Is that today, your Honor? 13 THE COURT: Oh no. It takes time to arrange this and 14 we take a longer lunch on that day. I don't know why. 15 THE DEPUTY CLERK: It may have been because of the 16 three-week period that we were off. 17 THE COURT: Mr. Fletcher suggests it was a period that 18 we were off but, still, they've gone a long time without going 19 to lunch. 20 Okay. Bring in the jury. 21 The marshals can go with two vans. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5020 48U5SAT2 1 (Jury present) 2 THE COURT: All right, you may proceed. 3 MR. BARKOW: Your Honor, if we could ask the jurors to 4 put their headphones back on? We are ready to go. 5 THE COURT: Fine. You can put them back on. And we 6 are proceeding how? 7 MR. BARKOW: Your Honor, this is Government Exhibit 8 1711CX2, which is in evidence, and corresponding transcript 9 Government Exhibit 1711X, which is in evidence as well. 10 THE COURT: All right. 11 MR. BARKOW: May we proceed? 12 THE COURT: Yes. 13 (At this point, Government Exhibit 1711CX2 and 1711X, 14 in evidence, was displayed and read to the jury.) 15 MR. BARKOW: Your Honor, at this point the government 16 requests permission to read to the jury Government Exhibit 17 1712X, which is in evidence And asks that Mr. Glenn and 18 Ms. Friedlander be allowed to step up. 19 THE COURT: All right. Okay, if you would will turn 20 the headphones off. 21 MR. BARKOW: Your Honor, this is Government Exhibit 22 1712X which is in evidence, transcript, translation of a visit 23 to Minnesota on May 20th, 2000, videotape 3. 24 Mr. Glenn will be reading the lines of Mohammed 25 Yousry, Ms. Friedlander will be reading the lines of Lynne SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5021 48U5SAT2 1 Stewart, and I will be reading the lines of Omar Abdel Rahman. 2 THE COURT: All right. 3 MR. BARKOW: May we proceed? 4 THE COURT: Yes. 5 (At this point, Government Exhibit 1712X, in evidence, 6 was read to the jury). 7 THE COURT: Bracket end, all right. 8 Mr. Glenn may step down. 9 MR. GLENN: Thank you. 10 MR. BARKOW: Your Honor, at this point the government 11 requests permission to play Government Exhibit 1712CX, which is 12 in evidence. 13 THE COURT: All right. 14 MR. BARKOW: With the transcripts on the jurors' 15 screens in front of them, your Honor, and with the video on the 16 large screen. And if we can ask the jurors to put their head 17 phones back on. 18 THE COURT: The transcript is Government Exhibit 19 1712X. 20 MR. BARKOW: Yes, your Honor, which is in evidence. 21 THE COURT: Ladies and gentlemen, you can put your 22 head phones on, remember with the dot facing out. 23 MR. BARKOW: May we proceed, your Honor? 24 THE COURT: Yes. 25 MR. BARKOW: Your Honor, if we can have a minute? I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5022 48U5SAT2 1 think we are going to play it in the other machine on the 2 table. 3 THE COURT: All right. 4 MR. BARKOW: Your Honor this might take a few minutes 5 so it may be a good place for a break. 6 THE COURT: Ladies and gentlemen, we will take a 7 break. Please remember my continuing instructions, they're 8 very important. Please, don't talk about this case at all and 9 always, remember to keep an open mind until you have heard all 10 of the evidence and I have instructed you on the law. Have a 11 good break. 12 All rise, please. 13 (Jury not present) 14 THE COURT: See you shortly. 15 (Recess). 16 THE COURT: Be seated, all. 17 Where are we? 18 MR. BARKOW: Your Honor, there appears to be a problem 19 with the DVD player, so we are getting a new one delivered to 20 be hooked up. 21 THE COURT: Okay. I'm sorry, I thought you were 22 ready. 23 MR. BARKOW: No. No, your Honor. Sorry. 24 THE COURT: Okay, see you later. 25 (Recess). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5023 48U5SAT2 1 THE COURT: Good afternoon, all. Please, be seated. 2 MR. BARKOW: Your Honor, it seems that, at least to 3 the extent that it has been able to be diagnosed, we need a new 4 cable to attach the DVD player to something else and so what we 5 ask is we could, we are only five minutes away from lunch, if 6 we could purchase the cable over lunch and it will be 7 installed. And hopefully we will be ready to go during the 8 lunch hour and be ready when we get back. 9 And if not, your, we will move on to something else 10 because at that point, the diagnosis is beyond us at that 11 point. 12 THE COURT: I thought you were going to check out last 13 week with Mr. Blum? 14 MR. BARKOW: I think this is a different issue. 15 The issue last week with Mr. Blum was the Court 16 house's equipment, and this appears to be the cable that 17 connects the DVD player to the audio machine and because the 18 first DVD -- actually, I am going beyond right now. It is a 19 different cable. 20 THE COURT: If you need to consult with Mr. Blum I am 21 sure he would be perfectly agreeable in consulting with you on 22 the equipment. 23 MR. BARKOW: We will try to do that as well. 24 Actually, I guess Mr. Francisco has tried to call him, 25 unsuccessfully. So, we will continue to do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5024 48U5SAT2 1 THE COURT: All right, I will bring in the jury and 2 tell them that the DVD is not yet ready to be played for them 3 and so we will break for lunch and we will resume at 2:00. Or 4 2:15? 5 MR. BARKOW: We would ask 2:15, your Honor. 6 THE COURT: All right. 7 MR. TIGAR: Your Honor, may Ms. Shellow-Lavine be 8 excused now? 9 THE COURT: Yes. 10 Let's call in the jury. 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 5025 48U5SAT2 1 (Jury present) 2 THE COURT: Please, be seated, all. 3 Ladies and gentlemen, the DVD is not yet ready to be 4 played for you. We are just about at the lunch hour, so rather 5 than keep you waiting to be called back into court we will 6 break for the lunch hour now and we will resume at 2:15. 7 Again, please, please remember my continuing 8 instructions. Don't talk about this case at all, always 9 remember to keep an open mind until you have heard all of the 10 evidence, I have instructed you on the law, and you have gone 11 to the jury room to begin your deliberation. 12 Have a good lunch. See you this afternoon. 13 All rise, please. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5026 48U5SAT2 1 (Jury not present) 2 THE COURT: Please, be seated, all. 3 We are going to break for lunch. There was a problem 4 that developed in the equipment last week, there was a 5 problem -- what looked like queing up the equipment this 6 morning, now there is another problem. You really should make 7 sure that you're comfortable with that all of the equipment is 8 working right before we begin with the jury because the delays 9 are not useful for the jury. 10 And so, I really can't emphasize to you enough that 11 before we begin the equipment should be checked. Sometimes it 12 is possible that a problem can develop and perhaps that is what 13 it was like last week, but there have been two today. 14 So, please, be back at 2:00. 15 (Luncheon recess) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5027 48ULSAT3 1 A F T E R N O O N S E S S I O N 2 2:15 p.m. 3 (In open court; jury not present) 4 THE COURT: Good afternoon, all. Please be seated. 5 Mr. Fletcher will give you a copy of the letter to the juror. 6 We will keep one copy as a court exhibit. The original will be 7 sent to the juror, and when Mr. Grate returns, also to him. 8 THE COURT: All right, Mr. Barkow? 9 MR. BARKOW: Yes, your Honor. The problem seems to be 10 fixed. I think we're ready to go. 11 (Jury enters courtroom) 12 (In open court) 13 THE COURT: All right. Please be seated, all. Good 14 afternoon, ladies and gentlemen. 15 JURORS: Good afternoon. 16 THE COURT: Good to see you all. Mr. Barkow, is the 17 government ready to proceed? 18 MR. BARKOW: We are ready to proceed. We'd ask the 19 jurors to place their headphones on. We'd ask permission to 20 play Government Exhibit 1712CX which is in evidence with the 21 transcript accompanying it, 1712X, which is also in evidence. 22 THE COURT: All right. Ladies and gentlemen, put your 23 headphones on, turn them on, dot facing forward. 24 MR. BARKOW: May we proceed, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5028 48ULSAT3 1 (At this point, Government Exhibits 1712CX, 1712X, in 2 evidence, were played and displayed to the jury) 3 THE COURT: Ladies and gentlemen, you can take your 4 headphones off. Remember to turn them off. 5 MR. MORVILLO: Your Honor, the government calls 6 Victoria Benjamin. 7 DEPUTY CLERK: Miss Benjamin, having been previously 8 sworn, you are reminded you're still under oath. 9 THE WITNESS: Excuse me? 10 DEPUTY CLERK: Having been previously sworn, you are 11 reminded you're still under oath. 12 THE WITNESS: Yes. 13 DEPUTY CLERK: Do you understand me? 14 THE COURT: Do you understand having been previously 15 sworn, you are still under oath? Yes? 16 THE WITNESS: Yes. 17 THE COURT: Please keep your voice up. 18 THE WITNESS: All right. 19 THE COURT: And speak into the microphone so everyone 20 can hear you. 21 THE WITNESS: All right. 22 MR. MORVILLO: Based on Miss Benjamin's prior 23 testimony and the stipulation of the parties, the government 24 would request permission to examine Miss Benjamin further. 25 THE COURT: All right. I'll allow the testimony. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5029 48ULSAT3 1 MR. MORVILLO: May I approach, your Honor? 2 THE COURT: Yes. 3 VICTORIA BENJAMIN, 4 called as a witness by the Government, having 5 been previously duly sworn, testified as follows: 6 DIRECT EXAMINATION (recalled) 7 BY MR. MORVILLO: 8 Q. Good afternoon, Miss Benjamin. 9 A. Good afternoon. 10 Q. I've handed you what's been marked for identification as 11 Government Exhibits 1107 -- 12 A. Yes. 13 Q. -- 1171, 1175, 1232 -- 14 A. Yes. 15 Q. -- 1250, 1252 -- 16 A. One second, please. 1250, 1252, yes. 17 Q. -- and 1268? 18 A. Yes. 19 Q. All of which are "T" exhibits? 20 A. Yes. 21 Q. Do you recognize those? 22 A. Excuse me? 23 Q. Miss Benjamin, do you recognize those? 24 A. Yes. 25 Q. How do you recognize them? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5030 48ULSAT3 Benjamin - direct 1 A. I signed them and dated. 2 Q. You signed and dated them? 3 A. Yeah, I have my initial, with the date. 4 Q. When you previously testified, you testified about the 5 methodology that you employed when you prepared -- 6 THE COURT: Hold on one moment. Mr. Morvillo, please 7 talk into the microphone, raise the microphone a bit so that 8 you speak louder. And Miss Benjamin, please remember to talk 9 into the microphone so that everyone can hear you. 10 THE WITNESS: All right, yes. 11 THE COURT: All right. 12 MR. MORVILLO: May I proceed? 13 THE COURT: Yes. 14 BY MR. MORVILLO: 15 Q. Miss Benjamin, when you previously testified here about 16 other transcripts that you prepared, you testified about the 17 methodology that you employed in preparing the transcripts. 18 Did you employ that same methodology with respect to the 19 preparation of these transcripts? 20 A. Yes, I did. 21 Q. When you were, as you previously testified, you listened to 22 the corresponding audio files off the DVDs. Did you do that 23 with respect to these transcripts? 24 A. Yes. 25 Q. And from whom did you get those DVDs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5031 48ULSAT3 Benjamin - direct 1 A. From Scott Kerns, special agent. 2 Q. Are those transcripts in front of you, 1107T, 1171T, 1175T, 3 1232T, 1250T, 1252T and 1268T, are they true and accurate 4 translations of the Arabic and translated into English? 5 A. Yes, they are. 6 MR. MORVILLO: I have no further questions, your 7 Honor. 8 THE COURT: All right. 9 MR. TIGAR: Very briefly, your Honor, I have one. 10 THE COURT: All right, you may examine. 11 MR. TIGAR: Thank you. 12 CROSS EXAMINATION 13 BY MR. TIGAR: 14 Q. Ms. Benjamin, would you please take a look at 1107T? 15 A. Yes. 16 Q. And on Page 2 at Line 5, do you see where it 17 says "Al-Shafi'i"? 18 A. Talking about 1107T? Page 2, Line 5? Yes, Al-Shafi'i. 19 Q. Al-Shafi'i? 20 A. Yes. 21 Q. And then it says, in brackets, "repeating and writing after 22 Sattar"? 23 A. Right. 24 Q. Now, did Mr. Al-Shafi'i actually say something there and 25 you left that out because he was just repeating what was said? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5032 48ULSAT3 Benjamin - cross 1 A. No. He was exactly repeating the same words as dictated by 2 Sattar, and you maybe noticed in other places, when he was -- 3 Al-Shafi'i was adding some words, I didn't write "repeat", I 4 put the same words Al-Shafi'i did. 5 Q. So that when the jurors see this transcript -- and they're 6 going to see it -- 7 A. Yes. 8 Q. -- where they see the "bracketed material, repeating and 9 writing after Sattar", that means that Mr. Al-Shafi'i did 10 actually speak some words, but they were the same words 11 Mr. Sattar spoke? 12 A. The same as Sattar, yes, that's correct. 13 MR. TIGAR: Thank you very much, your Honor. I have 14 no further questions. 15 THE COURT: Anyone else? 16 MR. MORVILLO: I have no further questions, your 17 Honor. 18 THE COURT: All right. Ms. Benjamin, you're excused. 19 You may step down. 20 MR. BARKOW: Your Honor, at this point the government 21 requests permission to read to the jury transcripts of 22 intercepted calls admitted in evidence, and we would ask 23 Mr. Forkner be allowed to go to the witness stand. 24 THE COURT: Hold on one moment. Government Exhibits 25 1107, 1171, 1175, 1232, 1250, 1252 and 1268T -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5033 48ULSAT3 Benjamin - cross 1 MR. TIGAR: May I speak briefly with Mr. Morvillo, 2 your Honor? 3 THE COURT: Yes. 4 MR. TIGAR: Thank you. 5 (Off the record) 6 MR. BARKOW: We're not going to get to those for a 7 little bit, actually, so before we offer those, we could 8 proceed with reading another -- 9 THE COURT: All right. 10 (Off the record) 11 MR. BARKOW: There are other transcripts we'll also 12 offer at the same time, your Honor, so we'll explain that to 13 the Court during the break. 14 THE COURT: All right. Okay. 15 MR. TIGAR: I do understand that nothing is being 16 offered at this time. 17 MR. BARKOW: That's correct, your Honor. We'll 18 explain it at the break. 19 THE COURT: All right. 20 MR. BARKOW: If Mr. Forkner could be allowed to step 21 forward? 22 THE COURT: Yes. 23 MR. MORVILLO: Your Honor, at this time the government 24 would request permission to read and display to the jury 25 Government Exhibit 1090X in evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5034 48ULSAT3 Benjamin - cross 1 THE COURT: All right. 2 MR. MORVILLO: For the record, this is a telephone 3 call on May 21st of 2000 at 4:11 in the afternoon. Mr. Forkner 4 will read the attributions to Mr. Sattar, and I will read the 5 attributions to Rafi't Ahmad Taha Musa. 6 (At this point, Government Exhibit 1090X, in evidence, 7 was displayed and read to the jury) 8 MR. MORVILLO: Your Honor, next we will read from 9 Government Exhibit 1091X. 10 THE COURT: 1091X. 11 MR. MORVILLO: This is a call made May 1st, 2000, at 12 4:16 p.m. May Mr. Barkow read the attributions to Mohammed 13 Salah? 14 THE COURT: Yes. 15 MR. MORVILLO: I will read the attributions to Taha 16 and Mr. Forkner will read the attributions to Ahmed Abdel 17 Sattar. 18 (At this point, Government Exhibit 1091X, in evidence, 19 was displayed and read to the jury) 20 MR. DEMBER: Your Honor, at this time the government 21 requests permission to read and display to the jury Government 22 Exhibit 1092X, which is in evidence, and which is a call on 23 May 22nd, 2000, at 9:26 p.m. I will read the part of Mustafa 24 Hamza; and Mr. Forkner will read the part of Ahmed Abdel 25 Sattar. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5035 48ULSAT3 Benjamin - cross 1 May we proceed, your Honor? 2 THE COURT: All right. 3 (At this point, Government Exhibit 1092X, in evidence, 4 was displayed and read to the jury) 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5036 48U5SAT4 1 MR. DEMBER: Your Honor, at this time, with your 2 permission, may we read and display to the jury, Government 3 Exhibit 1093X, which is in evidence; a call on May 28, 2000, at 4 4:25 a.m. I will again read the part of Mustafa Hamza and 5 Mr. Forkner will read the part of Ahmed Abdel Sattar. 6 (At this point, Government Exhibit 1093X, in evidence, 7 was displayed and read to the jury). 8 MR. MORVILLO: Your Honor, the next call is 34 pages, 9 do you want to start that? 10 THE COURT: No. Thank you. We will take our 11 mid-afternoon break. 12 Ladies and gentlemen, please remember my continuing 13 instructions not to talk about the case at all, always remember 14 to keep an open mind. 15 All rise, please. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5037 48U5SAT4 1 (Jury not present) 2 THE COURT: Please be seated, all. 3 There was an issue with transcript? 4 MR. BARKOW: Yes, your Honor. We wanted to offer in 5 front of the jury at some point a series of transcripts, both 6 of ones that Ms. Benjamin testified about today and also some 7 that were testified about previously. And I can list them for 8 the Court and tell the Court what DVDs they're on, etc. 9 The first set includes transcript -- Government 10 Exhibit 1103X, that was the subject of Ms. Banout's testimony 11 on August 23rd. 12 THE COURT: Is there a list? 13 MR. BARKOW: There is not a list, this is a short -- 14 there is only four or five, your Honor. 15 On August 23rd; and the underlying call is in evidence 16 on Exhibit 1300, the DVD; the second is 11146X, also the 17 subject of Ms. Banout's testimony on the 23rd of August, and 18 the underlying call is on Government Exhibit 1000, which is in 19 evidence; 1178X, which was the subject of Ms. Benjamin's 20 testimony on August 17th, the underlying call is on Government 21 Exhibit 1300, the DVD; Government Exhibit 1234X, that was the 22 subject of Ms. Benjamin's testimony on August 17th, and the 23 underlying call is on Exhibit 1300 in evidence. 24 That completes that list. There were two other 25 exhibits that we wanted to offer, Government Exhibit 1259X. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5038 48U5SAT4 1 was offered and admitted previously but the transcript was not 2 entirely clear on that, that was at page 4819, and just, to be 3 clear, we wanted to re-offer that one and have it clearly 4 admitted. 5 Then there was one exhibit, this relates back to the 6 Sattar search that we neglected to offer, 2083S, which is a 7 stipulation. 8 And then, your Honor, we also wished to offer the 9 transcripts, the transcripts that Ms. Benjamin just testified 10 about, not the T transcripts but the X transcripts, and those 11 numbers, your Honor, were 1107X, 1171X, 1175X, 1232X, 1250X, 12 1252X and 1268X. All of those calls, except for 1252, are on 13 Government Exhibit 1317, the DVD. Government Exhibit 1252X is 14 a transcript of a call, Government Exhibit 1252, which is on 15 Government Exhibit 1301, the underlying DVD. 16 THE COURT: All right. 17 MR. TIGAR: We have made our argument about these, 18 your Honor, and don't have anything in addition to say. 19 THE COURT: All right, those exhibits then -- there is 20 no dispute, is there, that it is the 1107X, 1171X, etc., that 21 should be in, rather than 1107T? 22 MR. BARKOW: That's correct, your Honor. There was a 23 stipulation previously, Government Exhibit 1313, which 24 discussed the transition from the Ts to the Xs on that one. 25 THE COURT: Okay. All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5039 48U5SAT4 1 Well then, I will admit those X transcripts and 2083S, 2 in evidence, and you can offer them before the jury. 3 All right, anything else? 4 MR. BARKOW: No, your Honor. 5 THE COURT: See you shortly. 6 (Recess) 7 THE COURT: Please be seated, all. 8 The one thing I didn't ask before the break is since 9 these are all transcripts and I have previously given the 10 jurors instructions about transcripts, I will repeat for the 11 jurors after I admit the transcripts, that I have already given 12 them instructions with respect to transcripts. 13 Are all of these Arabic transcripts? 14 MR. BARKOW: Well, that we are offering; yes, your 15 Honor. 16 And in fact all the transcripts, I believe that we are 17 going to be reading for -- certainly for the rest of the day 18 and a good part of tomorrow, are all going to be translations 19 from Arabic. 20 THE COURT: All right. Let's bring in the jury. Who 21 is taking the stand? 22 MR. MORVILLO: Mr. Forkner. 23 MR. BARKOW: Just so the Court is aware, the next 24 English transcript is 1115. So, from now until then, 25 everything is Arabic translation. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5040 48U5SAT4 1 (Continued on next page) 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5041 48U5SAT4 1 (Jury present) 2 THE COURT: Please be seated, all. 3 All right, Mr. Barkow. 4 MR. BARKOW: Yes, your Honor. Your Honor, at this 5 point the government offers into evidence the following 6 exhibits: 7 Government's Exhibits 1103X; 1107X, 1146X; 1171X; 8 1175X, 117 -- 9 THE COURT: I'm sorry. 10 MR. BARKOW: Sorry. 11 THE COURT: You are giving them to me in a different 12 order than you did before. 13 MR. BARKOW: I was going numerically. 14 THE COURT: Could you start again, please? 15 MR. BARKOW: 1103X, 1107X, 1146X -- I can go in the 16 other order, your Honor. 17 THE COURT: That's all right. 18 MR. BARKOW: 1171X, 1175X, 1178X, 1232X, 1234X, 1250X, 19 1252X, 1259X, 1268X and 2083S. 20 THE COURT: Which is the stipulation. 21 MR. BARKOW: Yes, your Honor. 22 THE COURT: All right. Those exhibits are received in 23 evidence. 24 (Government's Exhibits 1103X; 1107X, 1146X; 1171X; 25 1175X, 1178X received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5042 48U5SAT4 1 (Government's Exhibits 1232X, 1234X, 1250X, 1252X, 2 1259X, 1268X received in evidence) 3 (Government's Exhibit 2083S received in evidence) 4 THE COURT: Ladies and gentlemen, with the exception 5 of the stipulation, these are transcripts and they are 6 transcripts from a foreign language, Arabic. I have already 7 given you the instruction about how to consider transcripts 8 from a foreign language and how you are to consider those 9 transcripts. And I won't repeat all of those instructions for 10 you now and I will repeat the instructions with regard to 11 transcripts again with my closing instructions. 12 I have also given you instructions on the stipulation 13 and 2083 is a stipulation. All right. 14 MR. MORVILLO: Your Honor, at this time the government 15 would request permission to read to the jury and publish to the 16 jury Government Exhibit 1094X in evidence. 17 THE COURT: All right. 18 MR. MORVILLO: For the record, this is a call on May 19 29th, 2000, at 12:18 a.m. and Mr. Forkner will read the lines 20 of Ahmed Abdel Sattar and I will read the lines of Rafi't Ahmad 21 Taha Musa and Mr. Barkow will read attributions to Salah 22 Hashim. 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1094X, in evidence, 25 was displayed and read to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5043 48ULSAT5 1 MR. MORVILLO: Your Honor, do you want to continue 2 with this call? 3 THE COURT: All right. It's 4:35. We'll break and 4 continue tomorrow. 5 Ladies and gentlemen, we'll break for the day. It's 6 very important to follow my instructions very carefully. 7 Please, don't talk about this case at all. Please, don't look 8 at or listen to anything to do with the case. If you should 9 see or hear something inadvertently, simply turn away. Always 10 remember to keep an open mind until you've heard all of the 11 evidence, I've instructed you on the law and you've gone to the 12 jury room to begin your deliberations. Fairness and justice to 13 the parties requires that you do that. 14 With that, have a very good evening and I look forward 15 to seeing you tomorrow morning. See you at 9:30. 16 All rise, please. Please follow Mr. Fletcher to the 17 jury room. 18 (Jury exits the courtroom) 19 (In open court; jury not present) 20 THE COURT: Please be seated all. Mr. Fletcher 21 advises me that the Clerk's office is going on a skeletal staff 22 this Thursday at 3:00 o'clock. But I don't see why that should 23 affect us. The Clerk's office is also on a skeletal staff on 24 Friday beginning at 1:00 o'clock, and we won't be sitting on 25 Friday. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5044 48ULSAT5 1 Okay. Anything else for me? 2 MR. STERN: Judge, I know the jury asked you to turn 3 the heat up a little. But I think there's a consensus among us 4 that we're all broiling to death in here. 5 THE COURT: I would prefer it to be cooler, myself. 6 MR. STERN: Exactly. 7 THE COURT: I'll ask Mr. Fletcher if there's anything 8 that -- I don't know in this courtroom quite where the vents 9 are in the same ways that I do across the street. But I'll 10 look into that. I couldn't agree more. I prefer things to be 11 cooler rather than warmer. 12 And maybe I could ask the jurors to bring sweaters or 13 something. Okay. Thank you. Anything else? 14 Please be here at 9:15. See you tomorrow. 15 (Adjourned to Tuesday, August 31, 2004 @ 9:15 a.m.) 16 o 0 o 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5045 1 INDEX OF EXAMINATION 2 Examination of: Page 3 VICTORIA BENJAMIN 4 Direct By Mr. Morvillo . . . . . . . . . . . 5029 5 Cross By Mr. Tigar . . . . . . . . . . . . . 5031 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 1103X; 1107X, 1146X; 1171X; 1175X, 1178X 5041 9 1232X, 1234X, 1250X, 1252X, 1259X, 1268X 5042 10 2083S . . . . . . . . . . . . . . . . . . 5042 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300