5046 48VLSAT1 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 31, 2004 8 9:35 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 5047 48VLSAT1 1 (In open court; jury not present) 2 THE COURT: Please be seated, all. Good morning, all. 3 Are you ready to bring in the jury? 4 MS. BAKER: Your Honor, I had one very brief 5 housekeeping matter. On July 21st of 2004, after hearing 6 argument on the matter, your Honor ruled that Government 7 Exhibits 1315 and 1315C are admissible. That was at Pages 4245 8 or 4246 of the transcript. Those exhibits are a CD containing 9 certain audio files -- that's 1315 -- and then another CD 10 containing the enhanced version of those audio files. And 11 those CDs had been authenticated by the testimonies of Special 12 Agent Kerns and Mr. Losinski. 13 That ruling, the admission of 1315 and 1315C, was 14 never made in front of the jury. So it is the government's 15 intention when we reach those calls in the chronology, which we 16 expect will happen probably tomorrow, or I suppose it's 17 possible later today, that the government will reoffer Exhibits 18 1315 and 1315C in the presence of the jury so that the ruling 19 on their admissibility can then be made in the presence of the 20 jury as well. 21 MR. TIGAR: Well, on a related matter, your Honor, the 22 Jencks material that we received with respect to Ms. Banout 23 relates to the June 21st, 2000 calls, because Ms. Banout found 24 that really was one call with different people being patched 25 in, had been divided in some way by interruptions into 12 or 13 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5048 48VLSAT1 1 calls. She then wrote a memo recommending -- and I think it's 2 the same call -- that this -- these recordings not be used. 3 And they're a reflection of the correspondence between her and 4 the FBI agents about that, and then directions of her to meet 5 Mr. Barkow and Ms. Baker concerning these problems. 6 Ms. Banout then said she'd been directed to prepare a 7 summary, which we have never seen, and a translation. And the 8 translations of these calls have come in. So the calls on this 9 CD, although authenticated by Agent Kerns and Mr. Losinski, are 10 part and parcel of the ongoing dispute. And with respect to 11 these particular calls, we're now in possession of much more 12 information than we had at the time that those witnesses 13 appeared because we'd been told that the translator who has the 14 primary responsibility for listening to them simply thought 15 they were so bad they shouldn't be used. 16 It had been our intention to -- I've been thinking 17 about what we ought to do about this in a way that's not 18 disruptive for the jury hearing evidence. We will have 19 something in hand by the end of business today that reflects 20 our position. But I did want to state it because I think that 21 we will be objecting to receiving these matters in evidence, or 22 making a separate and special objection. 23 I'm just bringing it to your Honor's attention where 24 we are. 25 MS. BAKER: Your Honor, we don't believe that any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5049 48VLSAT1 1 further briefing on this matter would be necessary or 2 appropriate or that there's any reason for your Honor to 3 revisit his ruling. The transcripts of this call, which is one 4 call in multiple pieces, have been in the defense hands for 5 awhile. The transcripts reflect each and every place in the 6 call where the translators were unable to decipher what was 7 being said. There are either "unintelligible" notations, or 8 the translator used whichever phrase -- I know Ms. Banout 9 describes it one way, Ms. Benjamin describes it a different 10 way, when they think that there's some, you know, sound over 11 the line that interferes with their ability to hear the words 12 in the call. 13 All of that has long been reflected in the transcripts 14 that the defense has had for sometime. The fact that there 15 were issues with those calls, that there was some sort of 16 sound, I believe it was described as the dial tone creeping in, 17 that was all elicited during the testimony of Agent Kerns. And 18 indeed, Agent Kerns testified that that was why that particular 19 series of audios was put on a separate CD so that it could go 20 down to ERF and be enhanced by Mr. Losinski, which it was. 21 So the ultimate result of whatever happened with the 22 recording of these calls has been clear all along, and the 23 defense certainly has had the audio files themselves for a 24 very, very extended period of time. And your Honor has already 25 recognized in ruling on the admissibility of these disks, as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5050 48VLSAT1 1 well as other disks, that the law in the Second Circuit is that 2 unintelligible portions do not render recordings inadmissible. 3 That that's an issue for the jury to consider in deciding how 4 much weight, if any, to give to the recorded calls. And so 5 that's why this was all argued very thoroughly, and your Honor 6 ruled that the disks would be admitted, and that when it came 7 time to presenting those calls, that the government would play 8 them in their entireties, and that -- and that the transcripts 9 would not be excerpted but rather that the transcripts would be 10 admitted in their entireties so that the jury would have in 11 front of them the, you know, number of places where what the 12 parties were saying over the phone could not be heard or 13 understood by the translator. 14 The documentation that has now been disclosed that was 15 written in part by Ms. Banout changes nothing about all of 16 that. It's her expression of her view, her thought, her 17 opinion, about the call and its intelligibility. But she 18 doesn't know the legal standard for when a call is admissible 19 or not, or how the fact that portions may not be intelligible 20 bears on admissibility, if at all. So those documents change 21 nothing, and indeed, if Ms. Banout were here again on the 22 witness stand, the government would object to her being 23 cross-examined about the expression of that opinion in the 24 documentation, because whether intelligibility affects 25 admissibility is a legal issue for the Court, and her rendering SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5051 48VLSAT1 1 of her opinion about whether or not the calls should be used as 2 evidence at trial is an opinion that is not properly before the 3 jury. She could be asked: Are there portions that are 4 unintelligible? Obviously, she'd say yes. That's all 5 reflected in her transcripts. 6 So again, it's the government's view that the new 7 documents change nothing. The Court has already thoroughly 8 considered these issues. And the Court should not revisit its 9 earlier ruling. 10 MR. TIGAR: Your Honor, I don't want to prolong this. 11 I have a copy of the government's submission to us, which was 12 not copied to the Court, and I would like to hand that up and 13 ask the Court just to read the last six pages, which is the 14 exchange of e-mail where Miss Banout says, Don't use this. 15 She's been on the case eight years. And if I -- respectfully, 16 if I could hand that up to the Court, and then at maybe some 17 other break or something we could address what we see as the 18 significant issues here. I disagree with the government's 19 formulation, but I don't want to take jury time to do this 20 because I suspect the Court does not. 21 THE COURT: I don't think we should use jury time at 22 the moment. I certainly couldn't rule without looking again at 23 the transcript and considering what the defendants wish to 24 bring to my attention and what the -- is there any reason I 25 shouldn't take the government letter on this, to the defense? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5052 48VLSAT1 1 MS. BAKER: I'm sorry, your Honor? 2 THE COURT: Mr. Tigar's offering me the government 3 letter to the defense. 4 MS. BAKER: We have no objection to your Honor looking 5 at our letter. 6 THE COURT: Okay. So I'll take that. And you can -- 7 MR. TIGAR: There's a gentleman here, your Honor's 8 deputy clerk for today. 9 THE COURT: Right. Thank you. For this morning, in 10 any case. 11 Okay. And I have some thoughts on the way in which 12 this should be resolved, but rather than simply giving them to 13 you now, I should get in writing what the defendants wish to 14 give me, and if the government says, Well, they don't have to 15 respond in writing on this subject, that's fine. I'll listen 16 to you. There are several different possibilities that are out 17 there. And I don't have to resolve that now. And if it's a -- 18 The transcript of the call is what transcript? 19 MS. BAKER: One minute please, your Honor. It's not 20 one transcript. It's 12 transcripts altogether. 21 MR. MORVILLO: Your Honor, yesterday I prepared for 22 the Court a chart that -- two charts, actually. One relating 23 just to the transcripts, the "X" transcripts; one that's in 24 chronological order. And one that is in exhibit order. And if 25 I can hand both of them up to the Court. It contains the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5053 48VLSAT1 1 government exhibit number, the DVD on which the exhibits 2 contained. The underlying audio file, whether it's admitted in 3 evidence or not. The date of the call, the time of the call, 4 whether it's been published to the jury, and the number of 5 pages. 6 There's -- like I said, there's two charts. One is in 7 exhibit number order; one is in chronological order. 8 MS. BAKER: To answer your Honor's question, as I 9 said, it's 12 separate transcripts, one for each audio file 10 that's on the disk. And the numbers of the audio files are as 11 follows -- and then the transcripts obviously have the same 12 numbers with the letter "X" at the end. And the way I'm going 13 to give them now is in chronological order, not in government 14 exhibit number order. Because I have them in chronological 15 order on this list that I'm reading from. 16 So it's: 1260, 1261, 1147, 1262, 1263, 1148, 1264, 17 1265, 1149, 1266, 1267 and 1150. 18 THE COURT: Thank you. By the way, when Ms. Banout 19 made her comments in the e-mail, was that before or after the 20 conversations went to ERF? 21 MS. BAKER: Your Honor, we would have to look at the 22 e-mail to see the date on it and try to figure it out from 23 that. I don't know that off the top of my head. 24 THE COURT: How long are the -- these calls or these 25 transcripts? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5054 48VLSAT1 1 MS. BAKER: Your Honor, they're -- some of them are 2 very short and some of them are a little longer. My 3 recollection is that some of them are a page or less. Again -- 4 MR. MORVILLO: Your Honor, if you look at Page 4 of 5 the chart I just handed you -- 6 THE COURT: Hold on. You may be helpful, but it's not 7 good to interrupt Ms. Baker in mid sentence. 8 MR. MORVILLO: I'm sorry, I was just trying to -- 9 THE COURT: It's all right. 10 MS. BAKER: Mr. Morvillo was trying to say that is 11 some of the information contained on one of the charts he just 12 gave you. Based on a different document that one of my 13 colleagues has just handed me, I would give your Honor the page 14 counts. 15 What I was about to say is, again, these are segments 16 that together add up to one call. And so the segments 17 themselves range from pretty short to very, very short. 18 Because together it all adds up to one call that is perhaps 45 19 minutes or so long. So based on this document that I was just 20 given, the page lengths of the transcripts are as follows -- 21 THE COURT: No, that's okay. I just wanted to get 22 some sense of what we were talking about. 23 MS. BAKER: They range from one page to seven. And 24 our belief -- I wanted to check the document to be sure, but 25 our belief is that Ms. Banout's e-mail exchange was before the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5055 48VLSAT1 1 recordings were sent down to ERF for enhancement. 2 THE COURT: Okay. Again, I have thoughts about how 3 this should be resolved, but I want to wait until I've 4 thoroughly heard from the parties. Okay. Are we ready to 5 bring in the jury? Okay. 6 MS. BAKER: Your Honor, the only thing we would ask is 7 if there's any way for us to receive the defense submission at 8 the lunch hour. That way we can review it and see whether we 9 wish to respond. We'd rather not interrupt the chronological 10 presentation. We believe we may reach these calls this 11 afternoon. 12 MR. TIGAR: Your Honor, we can do it at the lunch 13 hour. But in any case, these calls are on the 21st of June. 14 The 20th of June. Mr. Salah Hashim, who had a conversation 15 with Miss Stewart on the 14th, isn't coming until next week. 16 So chronology is not -- 17 MR. BARKOW: Your Honor, as Mr. Tigar is well aware, 18 the reason Mr. Salah Hashim is not coming here is he's in Egypt 19 and we're coordinating his travel. He was in a car accident. 20 And so.... 21 THE COURT: Did the e-mail correspondence come out 22 after Ms. Banout testified with respect to the translation of 23 these calls? 24 MR. BARKOW: Your Honor, I don't believe she testified 25 about these. We don't have our copy of that letter with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5056 48VLSAT1 1 attached e-mails. If the Court could just tell us the date, we 2 would be able to answer, I think. 3 THE COURT: Let me just give the letter to you just 4 for a moment. 5 MS. SHELLOW-LAVINE: Mr. Barkow, I have an extra copy. 6 MR. BARKOW: Thank you. If we could just have one 7 second, your Honor. Your Honor, Ms. Benjamin testified about 8 all but one of these transcripts because she prepared the final 9 transcripts. Ms. Banout was responsible for one of them in 10 terms of its final form. 11 MS. BAKER: Your Honor, with all our various lists we 12 don't have one that shows which translators in which 13 transcript. We have to look at our exhibits to get this. 14 THE COURT: Why don't we take this up again at the 15 lunch hour, or at the mid morning break so that we can bring in 16 the jury and continue. I don't want to interrupt the jury 17 time. I have attempted to accommodate all of the parties with 18 respect to the presentation of the evidence that they seek in 19 terms of chronological order. 20 At the same time, I'm not going to reach a ruling that 21 I'm not prepared to make when the issue gets presented to me as 22 a housekeeping item the first thing in the morning, and it 23 appears to be more than a housekeeping matter. 24 And it's also an issue that could have been raised 25 with me, I believe, before the morning of the day that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5057 48VLSAT1 1 transcripts were going to be sought to be offered, and then be 2 told, Well, you've got to rule on that now because this is when 3 we wish to offer the transcripts. 4 MS. BAKER: Your Honor, I understand your frustration. 5 On the other hand, from the government's perspective, it isn't 6 an issue. The government merely was seeking to effectuate a 7 prior ruling made by your Honor. It's now a new objection 8 being raised by the defense. 9 MR. BARKOW: Your Honor, to answer the Court's 10 previous question about when Ms. Banout testified about this, 11 it was on August 23rd that she authenticated her transcript of 12 1146T, or testified about her translation of 1146T. That was 13 her testimony in court about that -- her one part of that 14 multipart call. 15 MS. BAKER: And just to be clear -- your Honor might 16 be looking at your list now -- when I ran off the exhibit 17 numbers a minute ago, you say, Wait a minute, Ms. Baker didn't 18 say 1146, that's because 1146, which is the first segment of 19 this multipart call, is actually not on 1315 and 1315C. 20 Rather, the audio file 1146, which corresponds to the one 21 transcript done by Ms. Banout, is on Government Exhibit 1000, 22 which is the first DVD authenticated by Agent Kerns and has 23 long been in evidence. 24 MR. TIGAR: Your Honor, that's right. There are 13 25 calls, not 12 in the series. Of those 12 that are on 1315, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5058 48VLSAT1 1 what apparently happened, according to Miss Benjamin when she 2 was here, was that Ms. Banout originally did the translation of 3 all, the whole call, all 13 segments. Then Ms. -- and Ms. 4 Benjamin said Ms. Banout might at that time have made a 5 technical statement back in 2000. After Ms. Banout raised her 6 concerns about these particular problems that are before your 7 Honor -- and you'll see in Miss Banout's e-mail a reference to 8 what's now 1261T -- then the translation was turned over to 9 Ms. Benjamin for the 12 remaining calls, which had the 10 practical effect of meaning that there was no statement by 11 Ms. Banout that would have referenced the calls that had been 12 turned over to Miss Benjamin to bring to court. 13 MS. BAKER: Your Honor, just so the record is clear, 14 to the extent Mr. Tigar is implying that the translation of 15 those calls was deliberately reassigned to Ms. Benjamin because 16 we were trying to hide some kind of a paper trail, I just want 17 the Court to know that that is absolutely not true, and 18 instead, as far as the division of labor between the 19 translators, Ms. Banout began working on the prison visits -- 20 as your Honor has seen, she has testified about all of the 21 prison visits -- and Ms. Benjamin took over the primary 22 responsibility of preparing transcripts of the regular calls. 23 So that is the reason why the division of labor was what it 24 was. 25 And your Honor, we've now looked at the e-mail SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5059 48VLSAT1 1 exchange and Ms. Banout's e-mail exchange occurred before the 2 calls went down to ERF for enhancement. In fact, part of the 3 reason why the calls were sent down to ERF for enhancement was 4 because of Ms. Banout pointing out that there was an issue with 5 hearing parts of the call. 6 MR. TIGAR: I have more to say, obviously, your Honor. 7 I'll wait, if I may. 8 THE COURT: Okay. Let's bring in the jury. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5060 48VLSAT1 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: Good to see you all. Again, ladies and 7 gentlemen, if there's a delay in bringing you out, please 8 understand there are various legal issues and we try to deal 9 with them before we bring you out into the jury box. I 10 appreciate your indulgence. 11 All right. I believe that where we left off yesterday 12 was in a transcript? 13 MR. MORVILLO: That's correct, your Honor. We were in 14 the -- towards the end of reading Government Exhibit 1094X in 15 evidence. Maybe we could conclude that? 16 THE COURT: Yes. 17 MR. MORVILLO: And publish it to the jury? 18 THE COURT: Yes. 19 MR. MORVILLO: Thank you. 20 THE COURT: Mr. Forkner was on the stand. 21 MR. BARKOW: Yes, your Honor, Mr. Forkner isn't in 22 this call, but he's in the next one. He can come up now for 23 the next call. 24 THE COURT: All right. 25 MR. BARKOW: Actually, we're going to have testimony SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5061 48VLSAT1 1 after this call, so it's unnecessary for Mr. Forkner to take 2 the stand. 3 THE COURT: All right. 4 MR. BARKOW: So may I go to the stand, your Honor, to 5 finish the parts I was reading? 6 THE COURT: Yes. 7 MR. MORVILLO: May we proceed, your Honor? 8 THE COURT: Yes. 9 (At this point, Government Exhibit 1094X, continuing, 10 in evidence, was displayed and read to the jury) 11 MS. BAKER: Your Honor, the government calls Scott 12 Kerns. 13 DEPUTY CLERK: You may be seated. Agent Kerns, having 14 been previously sworn, you are reminded that you are still 15 under oath. 16 THE WITNESS: I understand. 17 THE COURT: Ms. Baker, you may proceed. 18 MS. BAKER: Thank you, your Honor. 19 SCOTT KERNS (recalled), 20 called as a witness by the Government, 21 having been duly sworn, testified as follows: 22 DIRECT EXAMINATION 23 BY MS. BAKER: 24 Q. Agent Kerns, I place before you two items which are marked 25 for identification as Government Exhibit 1318 and Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5062 48VLSAT1 Kerns - direct 1 Exhibit 1318L. Do you recognize government Exhibit 1318? 2 A. Yes, I do. 3 Q. What is it? 4 A. This is a DVD that I created yesterday for trial. 5 Q. I'm going to ask you to tell the jury one more time how you 6 created that DVD. Would it help you to receiver refer to the 7 diagram which you've used before which is government 8 Exhibit 1310 in evidence? 9 A. Yes, it would. 10 MS. BAKER: Your Honor, may we display government 11 Exhibit 1310? 12 THE COURT: Yes. 13 Q. Referring please to Government Exhibit 1310, which is now 14 on the monitors, please tell the jury how you made the disk 15 marked as Government Exhibit 1318. 16 A. As previously, I testified to, I took the MO's, whether 17 they were from a tape that was converted or from the Raytheon 18 system, in Position 1. I then went to the computer they were 19 on, copied to the hard drive on the computer, 2. And then I 20 created several DVDs in position Number 3. 21 Q. Once you created the DVDs as represented in Position 3 on 22 the diagram, can the contents of those DVDs be altered? 23 A. No. 24 Q. And you said you created several DVDs at the same time? 25 A. Yes, I made six of them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5063 48VLSAT1 Kerns - direct 1 Q. Did you give any of those DVDs to any translator or 2 translators at the FBI? 3 A. Yes, I did. 4 Q. To whom? 5 A. I gave one to language specialist Victoria Benjamin. 6 Q. Let me ask you to look please at Government Exhibit 1318L, 7 which is the document there in front of you. Do you recognize 8 1318L? 9 A. Yes, I do. 10 Q. What is Government Exhibit 1318L? 11 A. It's a printout of the calls that are listed on Government 12 Exhibit 1318. 13 Q. Before you came to court this morning, did you compare the 14 list with the disk to ensure that the list accurately reflected 15 what is on the disk marked as 1318? 16 A. Yes, I did. 17 Q. Did you indicate that somehow on the list? 18 A. Yes, I did. 19 Q. How did you indicate it? 20 A. On the list, I signed my name and put today's date; and on 21 the CD, I initialed it in red and put today's date. 22 MS. BAKER: Your Honor, I have no further questions; 23 and the government offers Exhibits 1318 and 1318L. 24 THE COURT: All right. 25 MR. TIGAR: No objection to 1318L, your Honor, because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5064 48VLSAT1 Kerns - direct 1 I'd like to ask the witness about it. 2 THE COURT: All right. Government Exhibit 1318L is 3 received in evidence. 4 (Government's Exhibit 1318L received in evidence) 5 MR. TIGAR: May I inquire, your Honor? 6 THE COURT: Yes. 7 CROSS EXAMINATION 8 BY MR. TIGAR: 9 Q. I wonder if one of our technical wizards could -- I might 10 be able to do this, actually. 11 Agent Kerns, there are three calls on 1318. Is that 12 correct, sir? 13 A. Yes, it is. 14 Q. Now -- and these calls are from June 21st, 2000; 15 September 18th, 2000; and October 6, 2000. Correct? 16 A. That's correct. 17 Q. And the June 21st call was recorded on the Lockheed Martin 18 system, correct? 19 A. That's correct. 20 Q. The other two, on the Raytheon system? 21 A. That's correct. 22 Q. Was the June 21st call one that was contained on any of the 23 33 EMTs that you took to Minnesota that you've talked about 24 before? 25 A. No, it was not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5065 48VLSAT1 Kerns - cross 1 Q. And was it on any of the 360 problematic tapes that were 2 referred to in the correspondence that we discussed the last 3 time you were here? 4 A. I don't believe so, due to the fact that when I wrote that 5 particular communication, the only tapes that I took to 6 Minneapolis, the 33 of them, were concerned with this 7 particular case. I do not believe that was one of the tapes 8 that I had an issue with at that time, because if I had, I 9 would have taken it with me. 10 Q. You don't have an external database that would permit you 11 to provide us with documentation, but that is your 12 recollection, correct? 13 A. That's correct, I do not have a list of the 360 tapes, no. 14 Q. Well, do you have 1318L in front of you? 15 A. Yes, I do. 16 Q. And the last column, next-to-the-last column, Last 17 Modified, that refers to the time when you made the DVD. Is 18 that your testimony? 19 A. No, it is not. That is the time that I actually copied it 20 from the position Number 1, which was the MO drive, over to the 21 computer, which is in Position 2. That's when it was copied. 22 And afterwards, then I burned the DVD. 23 Q. So your testimony is that when you copy from the MO disk to 24 the computer, that generates a date and time? 25 A. Yes, it does. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5066 48VLSAT1 Kerns - cross 1 Q. And that generates the date and time in the directory of 2 the computer, correct? 3 A. For that file, yes. 4 Q. Then when you make your copy of the DVD, that date and time 5 that's now on the computer is copied over to the DVD, right? 6 A. That's correct. 7 Q. But if we went back to the MO disk, we would see a 8 different date and time next to the file name, correct? 9 A. Yes, you would. 10 Q. And we've talked about that before. 11 A. Yes, we have. 12 Q. And in doing this work you talk about, did you use the same 13 degree of care and skill about which you've previously 14 testified? 15 A. Yes, I did. 16 MR. TIGAR: I have no further questions. 17 THE COURT: All right. Anything further? 18 MS. BAKER: No, your Honor. 19 MR. TIGAR: We recognize the admissibility of 1318 is 20 governed by your Honor's prior orders on this question. 21 THE COURT: All right. Government Exhibit 1318, 22 received in evidence. 23 (Government's Exhibit 1318 received in evidence) 24 THE COURT: Agent Kerns may step down. 25 MS. BAKER: Your Honor, may I also be excused at this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5067 48VLSAT1 Kerns - cross 1 time to continue dealing with other matters on the case? 2 THE COURT: Yes. 3 (Agent Kerns and Ms. Baker exit the courtroom) 4 MR. BARKOW: Your Honor, at this point may Mr. Forkner 5 step forward to the witness box? 6 THE COURT: Yes. 7 MR. BARKOW: Your Honor, at this point the government 8 would request permission to publish and read to the jury 9 Government Exhibit 1099X, which is in evidence. 10 THE COURT: All right. 11 MR. BARKOW: Your Honor, this is a call on May 29th of 12 2000 at 4:51 p.m. between Ahmed Abdel Sattar and an 13 unidentified male. Mr. Forkner will read the lines of Ahmed 14 Abdel Sattar, and I will read the lines of the unidentified 15 male. May we proceed? 16 THE COURT: Yes. 17 (At this point, Government Exhibit 1099X, in evidence, 18 was displayed and read to the jury) 19 MR. BARKOW: Your Honor, at this point the government 20 would request permission to publish to the jury by reading and 21 the transcript being displayed Government Exhibit 1100X, which 22 is in evidence. 23 THE COURT: All right. 24 MR. BARKOW: And we ask if Mr. Glenn could be allowed 25 to step forward. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5068 48VLSAT1 Kerns - cross 1 THE COURT: All right. 2 MR. BARKOW: Your Honor, this is a call on May 30th of 3 2000 at 9:40 p.m. Mr. Forkner will read the lines of Ahmed 4 Abdel Sattar, Mr. Glenn will read the lines of Mohammed Yousry, 5 and I will read the lines of the unidentified female. May we 6 proceed? 7 THE COURT: Yes. 8 (At this point, Government Exhibit 1100X, in evidence, 9 was displayed and read to the jury). 10 MR. MORVILLO: Your Honor, at this time the government 11 would request permission to read and publish to the jury 12 Government Exhibit 1101X in evidence. 13 THE COURT: All right. 14 MR. MORVILLO: For the record, Government 15 Exhibit 1101X is a telephone call on June 4th, 2000, at 16 4:07 p.m. Mr. Forkner will read the attributions to Ahmed 17 Abdel Sattar; and I will read the attributions to Rafi't Ahmad 18 Taha Musa. May I proceed? 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1101X, in evidence, 21 was displayed and read to the jury) 22 MR. BARKOW: Your Honor, at this point we'd ask 23 permission to have Mr. Glenn step forward. 24 THE COURT: All right. 25 MR. BARKOW: And we'd ask permission to publish to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5069 48VLSAT1 Kerns - cross 1 jury and read to the jury Government Exhibit 1102X, which is in 2 evidence. Your Honor, may we put this on the screen? 3 THE COURT: Yes. 4 MR. BARKOW: Your Honor, this is a call on June 5th of 5 2000 at 9:36 p.m. Mr. Forkner will read the lines of Ahmed 6 Abdel Sattar and Mr. Glenn will read the lines of Mohammed 7 Yousry. May we proceed? 8 THE COURT: Yes. 9 (At this point, Government Exhibit 1102X, in evidence, 10 was displayed and read to the jury). 11 MR. BARKOW: Your Honor, at this point the government 12 requests permission to read and publish to the jury Government 13 Exhibit 1268X, which is in evidence. 14 THE COURT: All right. 15 MR. BARKOW: Your Honor, this is a call on June 11 of 16 2000 at 8:14 p.m. Mr. Forkner will read the lines of Ahmed 17 Abdel Sattar and I will read the lines of Yassir Al-Sirri. May 18 we proceed? 19 THE COURT: One moment, please. 20 MR. BARKOW: Your Honor, we have another copy. 21 THE COURT: No, I have it. 22 MR. BARKOW: May we proceed? 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1268X, in evidence, 25 was displayed and read to the jury) 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5070 48V5SAT2 1 THE COURT: Let's take our mid-morning break. 2 Ladies and gentlemen. Please, remember my continuing 3 instructions not to talk about the case at all, always remember 4 to keep an open mind until you have heard all of the evidence, 5 and my instructions on the law. 6 Have a good break. See you soon. 7 All rise, please. 8 (Jury not present) 9 THE COURT: All right, see you shortly. 10 (Recess) 11 THE COURT: All right, please, be seated. 12 Bring in the jury. 13 MR. SHAPIRO: Should Mr. Forkner come forward now? 14 THE COURT: Yes. 15 (Jury present) 16 THE COURT: Please, be seated, all. 17 MR. SHAPIRO: Your Honor, at this point the government 18 requests permission to publish to the jury and read to the jury 19 Government Exhibit 1103X, which is in evidence and which is the 20 continuation of the call we just read. 21 THE COURT: One moment. 22 (Pause) 23 THE COURT: All right. 24 MR. SHAPIRO: May we proceed, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5071 48V5SAT2 1 MR. SHAPIRO: This is a call, your Honor, on June 11th 2 of 2000, at 8:59 p.m. Mr. Forkner will read the lines of Ahmed 3 Abdel Sattar and I will read the lines of Yassir Al-Sirri. 4 (At this point, Government Exhibit 1103X, in evidence, 5 was displayed and read to the jury) 6 THE COURT: All right. 7 MR. MORVILLO: Your Honor, at this time the government 8 would request permission to publish to the jury Government 9 Exhibit 1104X, in evidence. 10 THE COURT: All right. 11 MR. MORVILLO: Mr. Glenn will read attributions to 12 Mohammed Yousry. 13 THE COURT: Yes. 14 MR. MORVILLO: For the record, this is a telephone 15 call on June 13th of 2000 at 6:06 p.m. 16 Mr. Forkner will read attributions to Ahmed Abdel 17 Sattar, and there are two attributions to unidentified female 18 which I will read. 19 (At this point, Government Exhibit 1104X, in evidence, 20 was displayed and read to the jury) 21 (Continued on next page) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5072 48VLSAT3 1 MR. BARKOW: Your Honor, at this point the government 2 requests permission to publish to the jury and read to the jury 3 Government Exhibit 1105X, which is in evidence. 4 THE COURT: All right. 5 MR. BARKOW: Your Honor, this is a call on June 13th, 6 2000, at 6:13 p.m. Mr. Forkner will read the lines of Ahmed 7 Abdel Sattar, and I will read the lines of Mohammed Al-Shafi'i. 8 May I proceed? 9 THE COURT: Yes. 10 (At this point, Government Exhibit 1105X, in evidence, 11 was displayed and read to the jury) 12 MR. BARKOW: Your Honor, at this point the government 13 requests permission to read and publish continuation of this 14 call government Exhibit 1106X, which is in evidence. 15 THE COURT: All right. 16 MR. BARKOW: And your Honor, we will be reading the 17 same lines, the same roles. May we proceed? 18 THE COURT: Yes. 19 MR. BARKOW: This is a call of June 13, 2000, at 20 6:19 p.m. 21 (At this point, Government Exhibit 1106X, in evidence, 22 was displayed and read to the jury) 23 MR. BARKOW: Your Honor, at this point the government 24 requests permission to publish and read Government 25 Exhibit 1107X, which is in evidence, which is a continuation of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5073 48VLSAT3 1 that call. 2 THE COURT: All right. 3 MR. BARKOW: Your Honor, this is a call on June 13th 4 of 2000 at 6:24 p.m. And we will be reading the same roles. 5 May we proceed? 6 THE COURT: Yes. 7 (At this point, Government Exhibit 1107X, in evidence, 8 was displayed and read to the jury) 9 THE COURT: Before the next one, why don't we take a 10 stretch break? 11 (Stretch break) 12 MR. BARKOW: Your Honor, at this point the government 13 requests permission to publish to the jury and read to the jury 14 Government Exhibit 1109X, which is in evidence. Your Honor, 15 this is a call on June 13th, 2000, at 6:49 p.m. Again, 16 Mr. Forkner will be reading the lines of Ahmed Abdel Sattar, 17 and I'll be reading the lines of Mohammed Al-Shafi'i. May we 18 proceed? 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1109X, in evidence, 21 was displayed and read to the jury) 22 MR. BARKOW: Your Honor, at this point, we request 23 permission to publish to the jury and read to the jury 24 Government Exhibit 1110X, which is in evidence. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5074 48VLSAT3 1 MR. BARKOW: Your Honor, this is a call on June 13th 2 of 2000 at 6:52 p.m. And Mr. Forkner and I will be reading the 3 same roles again. May we proceed? 4 THE COURT: All right. 5 (At this point, Government Exhibit 1110X, in evidence, 6 was displayed and read to the jury) 7 MR. MORVILLO: Your Honor, at this time the government 8 would request permission to read to the jury and publish to the 9 jury government exhibit 1111X in evidence. 10 THE COURT: All right. 11 MR. MORVILLO: Your Honor, this is a call, for the 12 record, on June 14th, 2000, at 4:17 p.m. The participants in 13 this segment of the call on the "X" exhibit are Rifa't Ahmad 14 Taha Musa and Salah Hashim. I will read the attributions for 15 Mr. Taha, and Mr. Barkow will read the attributions for 16 Mr. Hashim. If Mr. Forkner could leave the witness chair. 17 THE COURT: All right. 18 (At this point, Government Exhibit 1111X, in evidence, 19 was displayed and read to the jury) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5075 48V5SAT4 1 THE COURT: It is 12:48, so it should be just about 2 time for lunch so we will break for lunch. 3 Ladies and gentlemen, we are going to break for lunch. 4 Please remember my continuing instructions. Please, please, 5 don't talk about the case at all, always remember to keep an 6 open mind until you have heard all of the evidence, I have 7 instructed you on the law, and you have gone to the jury room 8 to begin your deliberations. 9 Have a good lunch, I will see you shortly. 10 All rise. 11 (Jury not present) 12 THE COURT: All right, please, be seated. 13 Please be back by 1:45 and I didn't tell the jury but 14 I will try to begin with the jury at 2:00. Have a good lunch. 15 (Luncheon recess) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5076 48V5SAT4 1 A F T E R N O O N S E S S I O N 2 2:10 p.m. 3 THE COURT: Good afternoon, all. Please, be seated. 4 All right, are you ready to proceed? 5 MR. BARKOW: Yes, your Honor. 6 THE COURT: Where are we going again? 7 MR. BARKOW: We are continuing, your Honor, with the 8 reading of transcripts. There is a number of them before we 9 turn to something else. 10 THE COURT: Okay. 11 MR. BARKOW: It will at least take us to the break. 12 THE COURT: All right. Let's bring in the jury. 13 MR. MORVILLO: Your Honor, may Mr. Forkner come up and 14 take the witness stand? 15 THE COURT: Yes. 16 (Jury present) 17 THE COURT: Please, be seated, all. 18 Good afternoon, ladies and gentlemen. 19 THE JURY: Good afternoon. 20 THE COURT: Always good to see you. 21 All right, government? 22 MR. MORVILLO: Your Honor, at this time, the 23 government would request permission to read to the jury and 24 publish to the jury Government Exhibit 1112X, in evidence. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5077 48V5SAT4 1 MR. MORVILLO: For the record, your Honor, this is a 2 call on June 14th of 2000 at 5:01 p.m. Mr. Forkner will be 3 reading the attributions of Ahmad Abdel Sattar and I will be 4 reading attributions to Rifa't Ahmad Taha Musa. 5 (At this point, Government Exhibit 1112X, in evidence, 6 was displayed and read to the jury). 7 MR. MORVILLO: Your Honor, at this time the government 8 would request permission to read to the jury and publish to the 9 jury, Government Exhibit 1113X, in evidence. 10 THE COURT: All right. 11 MR. MORVILLO: For the record, this is a June 14th, 12 2000 call at 9:41 p.m. Mr. Forkner will read the attributions 13 of Ahmad Abdel Sattar and Ms. Griffith will come forward and 14 read attributions of Nagy Motosh. 15 (At this point, Government Exhibit 1113X, in evidence, 16 was displayed and read to the jury) 17 MR. DEMBER: Your Honor, at this time, with your 18 permission, we would ask to both display and read Government 19 Exhibit 1250X, which is a conversation on June 15th, 2000, at 20 12:20 p.m. It is in evidence and the participants are Ahmed 21 Abdel Sattar and Muntasir Al-Zayat. 22 May we display the transcript to the jury? 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1250X, in evidence, 25 was displayed and read to the jury). SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5078 48V5SAT4 1 MR. DEMBER: Your Honor, at this time, with your 2 permission, may we display for the jury and read Government 3 Exhibit 1114X? It is a conversation on June 15th, 2000, at 4 12:24 p.m. with the same two participants, Ahmed Abdel Sattar 5 and Muntasir Al-Zayat. 6 May we display the transcript, your Honor? 7 THE COURT: Yes. 8 (At this point, Government Exhibit 1114X, in evidence, 9 was displayed and read to the jury). 10 MR. BARKOW: Your Honor, at this point, the government 11 requests permission to play for the jury Government Exhibit 12 1115, which is in evidence, it is a call in English; and we ask 13 permission to display to the jury the corresponding transcript 14 which we offer into evidence as an aid, which is Government 15 Exhibit 1115X. 16 THE COURT: All right. 17 MR. BARKOW: And, your Honor, this is a call on June 18 15th, 2000 between Lisa Sattar and Lynne Stewart, and we ask 19 that the jurors put their headphones on. 20 THE COURT: Ladies and gentlemen, I have given you 21 instructions about transcripts and how transcripts of 22 recordings that are in English are only an aid to your 23 listening to the recording. I have given you a lengthier 24 instruction and you are to apply that instruction here. And I 25 will also repeat the instruction about transcripts in my final SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5079 48V5SAT4 1 charge to you. 2 So, ladies and gentlemen, if you will put on your head 3 phones, turn them on, with the dots facing out. 4 MR. BARKOW: May we proceed, your Honor? 5 THE COURT: Yes. 6 (At this point, Government Exhibit 1115 and 1115X, in 7 evidence, were displayed and played for the jury) 8 MR. BARKOW: One of the jurors' head phones is not 9 working, your Honor. 10 THE COURT: All right. 11 MR. BARKOW: Your Honor, may we start again? 12 THE COURT: Yes. 13 (At this point, Government Exhibit 1115 and 1115X, in 14 evidence, were displayed and played for the jury) 15 MR. BARKOW: I'm sorry, your Honor. Another juror's 16 head phones aren't working. 17 THE COURT: Hold on. 18 MR. BARKOW: May I? 19 THE COURT: Yes. Pass up another head phone. Did 20 anyone else have trouble with the head phones? No? 21 All right, you may start. 22 MR. BARKOW: May we start again, your Honor? 23 THE COURT: Yes. 24 (At this point, Government Exhibit 1115 and 1115X, in 25 evidence, were displayed and played for the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5080 48V5SAT4 1 THE COURT: Hold on, stop. Stop. Please, stop. 2 MR. BARKOW: May I exchange them? 3 THE COURT: Yes. 4 Just by the way, a couple things, ladies and 5 gentlemen. 6 It does sometime happen that the batteries run down on 7 the head phones and it also sometimes happens, which I have 8 seen, when head phones are replaced the ones that they're 9 replaced with don't quite work, so no one should feel reluctant 10 to just raise their hand even if a replacement set isn't 11 working. 12 And the other thing I would just point out is that 13 when you are not using the head phones, remember to turn them 14 off and that will help us save the battery. 15 Okay. 16 MR. BARKOW: May we try again, your Honor? 17 THE COURT: Yes. 18 (At this point, Government Exhibits 1115 and 1115X, in 19 evidence, were displayed and played for the jury) 20 THE COURT: All right, take your head phones off, 21 ladies and gentlemen, and turn them off. 22 MR. BARKOW: Your Honor, at this point the government 23 requests permission to read to the jury and publish to the 24 jury, Government Exhibit 1116X, which is in evidence. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5081 48V5SAT4 1 MR. BARKOW: And we would ask if Ms. Griffith go to 2 the podium. 3 This, your Honor, is a call on June 15th, 2000, at 4 8:20 p.m.; Mr. Forkner will read the line of Ahmed Abdel Sattar 5 and Ms. Griffith will read the lines of Usama Al-Tubji. 6 THE COURT: All right. 7 MR. BARKOW: May they proceed, your Honor? 8 THE COURT: Yes. 9 (At this point, Government Exhibit 1116X, in evidence, 10 was displayed and read to the jury) 11 THE COURT: All right. 12 MR. MORVILLO: Your Honor, at this time the government 13 would request permission to read and publish to the jury 14 Government Exhibit 1117X, in evidence. 15 THE COURT: Before we do that, it is about the middle 16 of the afternoon, so why don't we take just a stretch break. 17 (Pause) 18 THE COURT: Okay, be seated. You may proceed. 19 MR. MORVILLO: May we publish it to the jury, your 20 Honor? 21 THE COURT: Yes. 22 MR. MORVILLO: For the record, this is a phone call, 23 Government Exhibit 1117X, of June 18, 2000 at 6:03 a.m., 24 between Ahmed Abdel Sattar and Rifa't Ahmad Taha Musa. 25 (At this point, Government Exhibit 1117X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5082 48V5SAT4 1 was displayed and read for the jury) 2 MR. MORVILLO: Your Honor, at this time the government 3 would request permission to read Government Exhibit 1232X -- 4 between the same participants -- and publish it to the jury. 5 THE COURT: Yes. Hold on one moment. 6 (Pause) 7 MR. MORVILLO: For the record, this call on June 18, 8 2000, 6:08 a.m. 9 (At this point, Government Exhibit 1232X, in evidence, 10 was displayed and read to the jury). 11 MR. MORVILLO: Your Honor, the government requests 12 permission to read and show to the jury Government Exhibit 13 1118X, in evidence. 14 THE COURT: I'm sorry. Keep your voice up. 15 MR. MORVILLO: 1118X. 16 THE COURT: All right. 17 MR. MORVILLO: For the record, this is a call on June 18 18, 2000, at 6:09 a.m., between the same participants. 19 (At this point, Government Exhibit 1118X, in evidence, 20 was displayed and read to the jury). 21 MR. MORVILLO: Your Honor, government would request 22 permission to read Government Exhibit 1234X to the jury, and 23 publish it to the jury, in evidence. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5083 48VLSAT5 1 THE COURT: All right. Proceed. 2 MR. MORVILLO: For the record, this call is on 3 June 18th, 2000, at 6:10 a.m. between Sattar and Musa, the same 4 parties. 5 (At this point 1234X, in evidence, was displayed and 6 read to the jury) 7 MR. MORVILLO: At this time, your Honor, the 8 government would request permission to read Government Exhibit 9 1119X in evidence. 10 THE COURT: Hang on one moment. Is this a convenient 11 time to take a break? It's 3:19. 12 MR. MORVILLO: Yes, your Honor. This is the last 13 segment of this call. But we can certainly do it after the 14 break. 15 THE COURT: All right. Ladies and gentlemen, we'll 16 break briefly. Please remember my continuing instructions not 17 to talk about the case, and keep an open mind. All rise, 18 please? 19 Please follow Mr. Fletcher. 20 (Jury exits the courtroom) 21 (In open court; jury not present) 22 THE COURT: All right, please be seated, just for a 23 moment. You were going, 1234. The next one was...? 24 MR. MORVILLO: 1119, your Honor. 1119X. 25 THE COURT: All right. We'll break. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5084 48VLSAT5 1 MR. BARKOW: Your Honor, I just wanted to advise the 2 Court that we may or may not hit it this afternoon, but it's 3 possible at the end of the day, where after we do a series of 4 calls we're going to turn to three pieces of Sattar's search 5 evidence. I can give the Court those numbers in case we do get 6 there, or if we get there we can take a break, whatever the 7 Court would like. 8 THE COURT: What are the numbers? 9 MR. BARKOW: In this order of presentation: 2012 and 10 2012T; 2011 and 20211T; and 2023 and 2023T. 11 For the first two, that is, 2011 and 2012, the -- 12 they're not offered for the truth, and it would be appropriate 13 to instruct the jury that they are not being offered for the 14 truth. 15 With respect to 2023 and 2023T, that exhibit is 16 actually two -- it's one piece of paper, but it's actually 17 statements by two different people. The translation of 2023T 18 makes that clear, and I can pass up a copy of it to the Court 19 if the Court doesn't have it handy. 20 One of them is a letter by Salah Hashim, and that 21 letter is -- in the original, 2023, is typed. This seems to be 22 a fragment of a letter. It was found in the Sattar search in 23 that form. It's part of it because it kind of picks up in the 24 middle, and it's by Salah Hashim and signed by him. That is 25 not offered for the truth. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5085 48VLSAT5 1 The other part of that same exhibit, 2023, basically 2 the other side of the same piece of paper, is basically a 3 handwritten statement. That is a statement by Omar Abdel 4 Rahman. That we are offering for the truth because it is a 5 statement by a coconspirator. And so in terms of -- I wanted 6 the Court to know that in terms of instructions and also in 7 terms of presentation, because document 2023 is one piece of 8 paper but contains two statements. 9 What we propose to do is publish it, one statement, 10 then the translation. Then the other statement, and then the 11 translation, because they are on the same piece of paper, but 12 they are clearly, by the content of 2023T, two statements by 13 two different people, and in fact a limiting instruction is 14 appropriate for the Salah Hashim statement because we are not 15 offering it for the truth. But we are offering the Abdel 16 Rahman statement for the truth. So it seems cleaner and 17 clearer to present them separately, and that's what we propose 18 to do. 19 MR. TIGAR: May I have just a moment, your Honor? 20 THE COURT: Sure. 21 MR. TIGAR: May we take the break, your Honor, and 22 take a look at those? 23 THE COURT: Sure. 24 MR. TIGAR: Thank you. 25 THE COURT: See you shortly. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5086 48VLSAT5 1 (Afternoon recess) 2 (In open court; jury not present) 3 MR. TIGAR: During the break, your Honor, Mr. Barkow 4 has told us the government's theory, which is that there are 5 telephone calls during which the content of Government 2023, 6 the handwritten content, is discussed. That doesn't seem to 7 get us to the point of being able to say this is Omar Abdel 8 Rahman's statement, in our respectful submission. I'm talking 9 about the handwritten part of 2023, what I'm holding up. The 10 one thing we know is this is not Omar Abdel Rahman's 11 handwriting. It therefore cannot be his statement. It might 12 be something that somebody wrote that they thought was his 13 statement. As of right now, the only thing that we know is 14 that it was seized from Mr. Sattar's house. And therefore, 15 unless the government puts in evidence something that permits a 16 more expansive instruction, it's simply a statement in Arabic, 17 which bears internal evidence that it's Omar Abdel Rahman 18 talking because he's talking about things that Omar Abdel 19 Rahman talks about. But one of the things this last series of 20 calls has told us is that there's considerable confusion about 21 what Omar Abdel Rahman said and what people said he said, and 22 so on. 23 So we would just ask that the government proffer its 24 evidence that they say permits us to say this is Omar Abdel 25 Rahman talking, and then the Court will make a decision as to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5087 48VLSAT5 1 what limiting instruction is appropriate. Under the present 2 state of the record, we submit that the assertion that this is 3 Omar Abdel Rahman could not be sustained. 4 THE COURT: Am I correct that there are no objections 5 with respect to 2011 and 2012, not offered for the truth of any 6 matters asserted? 7 MR. TIGAR: That's right, your Honor, and we went back 8 to the transcript and looked at those. That was the basis on 9 which it was admitted and -- here it comes. 10 THE COURT: I haven't gone back to check. Has 2023 11 previously been raised with me? 12 MR. TIGAR: Yes, your Honor. Your Honor admitted 2023 13 and 2023T, but at that time, there was no limiting instruction 14 discussed because the state of the record at that time, at 15 least in our view, didn't provide any basis to give the jury 16 that sort of guidance. 17 MR. BARKOW: Your Honor, I could address this in part 18 now and perhaps more later, because I don't think we're going 19 to get to it. But we might. And that's why I raised it at the 20 break. 21 First of all, in the charts that we exchanged and 22 provided to the Court and we exchanged with counsel for 23 Ms. Stewart, this was a document, 2023, which we listed as 24 being offered against all defendants and without limits. It 25 was admitted. There was no discussion of the limiting SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5088 48VLSAT5 1 instructions, but it was clear at the time we presented it to 2 the defendants and at the time we offered them into evidence 3 that that was our intention. And it was admitted. 4 But more significantly, it's very clear on the record 5 of what is in evidence, although what has not been published 6 for the jury yet, but what is in evidence, three calls: 7 Government Exhibits 1143X, 1251X and 1144X. In those calls, 8 Mr. Sattar speaks to Mohammed Abdel Rahman, one of Sheikh Abdel 9 Rahman's sons. And in those -- those calls occur on the same 10 day that a prison call occurred, June 20th of 2000, earlier in 11 the day, because these three calls I just mentioned are late at 12 night, after 11:00 o'clock p.m. And in those three calls, 13 Mohammed Abdel Rahman says that he, Mohammed Abdel Rahman, 14 spoke to -- essentially spoke to his father, Sheikh Abdel 15 Rahman. And Sheikh Abdel Rahman said some things, and he goes 16 through -- and those statements are read -- I'm sorry, I just 17 reversed that. 18 Mr. Sattar says that there was a prison call and says 19 that Sheikh Abdel Rahman said some things. And Mr. Sattar goes 20 through and reads what Sheikh Abdel Rahman said. And if -- I 21 won't do it now, but if the Court were just to put side by side 22 Mr. Sattar's statements in those three calls and Government 23 Exhibit 2023T, which is the translation of that handwritten 24 document, it's almost word-for-word. 25 So those are the three calls that authenticate this as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5089 48VLSAT5 1 a statement by Sheikh Abdel Rahman, because Mr. Sattar says 2 that it's a statement by Sheikh Abdel Rahman. The words are 3 virtually identical. Probably just differences in different 4 translators having done them, down to very small details. 5 They're very close. And also it is further authenticated by 6 the fact that it was found in Mr. Sattar's house. 7 As I said, we may not get there today, your Honor, but 8 I was raising it because that was the last break today before 9 we would adjourn. 10 MR. TIGAR: This may be a tempest in a teapot. It's 11 in evidence. I'm objecting to Mr. Barkow's statement that this 12 is a statement of Omar Abdel Rahman. Because -- 13 THE COURT: Could I make a suggestion? Now that I 14 understand it somewhat better. 15 MR. TIGAR: Yes. 16 THE COURT: Having had it explained to me -- I haven't 17 gone back to check when I admitted it in evidence and what the 18 objections or limitations were at that time. Apparently, no 19 limitations at that time. But the objection by the defendants 20 is to the statement that the statement is a statement by Omar 21 Abdel Rahman. 22 Now, I wouldn't -- the defense says it's maybe a 23 tempest in a teapot. I wouldn't give an instruction that 24 the -- this is a statement by Omar Abdel Rahman. I mean, 25 plainly the document is whatever it is. The only issue would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5090 48VLSAT5 1 be whether I gave an instruction that it's subject to 2 connection. So the document at this point would come in, the 3 first side of the document is not offered for the truth of any 4 of the matters asserted, and there would not be an explanation 5 for a limiting instruction with respect to the second part. 6 MR. TIGAR: Your Honor, Mr. Barkow assures me that he 7 is not going to make any comment to the jury that this is Omar 8 Abdel Rahman. And given the fact that your Honor would not 9 give an instruction and that it is in evidence, I think that 10 does solve it. And I would only say, you know, with respect to 11 this telephone call, Mr. Sattar says, Oh, the sheikh said this 12 today, but the other evidence shows Mr. Sattar wasn't on that 13 phone call. 14 That's something we can argue about at the end of the 15 case. Case closed, as a witness once said. 16 MR. BARKOW: That's all right, your Honor. I just 17 wanted to tell the Court, what your Honor said about which side 18 was correct, except it's reversed. But it doesn't matter. One 19 side would have the limiting instruction that it is -- 20 THE COURT: The one side with the part of the letter 21 from Salah Hashim? 22 MR. BARKOW: Correct. 23 THE COURT: Is not offered for the truth of the 24 matters asserted. 25 MR. BARKOW: That's correct. And that's typed. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5091 48VLSAT5 1 the other one is handwritten. That's the clearest way to keep 2 them straight. 3 THE COURT: Okay. All right. Let's bring in the 4 jury. And Mr. Forkner, I believe, is on the stand? 5 MR. MORVILLO: Yes, your Honor. 6 THE COURT: And you were up to? 7 MR. MORVILLO: 1119X. 8 (Jury enters the courtroom) 9 (In open court) 10 THE COURT: All right. Please be seated, all. 11 MR. MORVILLO: Your Honor, the government requests 12 permission to read and display to the jury Government Exhibit 13 1119X in evidence. 14 THE COURT: All right. 15 MR. MORVILLO: For the record, this is a call on 16 June 18th, 2000, at 6:16 a.m., from Ahmed Abdel Sattar and 17 Rifa't Ahmad Taha Musa. May we proceed, your Honor? 18 THE COURT: Yes. 19 (At this point, Government Exhibit 1119X, in evidence, 20 was displayed and read to the jury) 21 MR. BARKOW: Your Honor, at this point, the government 22 requests permission to read to the jury what has been admitted 23 into evidence as Government Exhibit 1120X and to publish it to 24 the jury, put it on their screens. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5092 48VLSAT5 1 MR. BARKOW: Your Honor, this is Government Exhibit 2 1120X. This is a call on June 19th of 2000 at 5:05 a.m. 3 Mr. Forkner will read the lines of Ahmed Abdel Sattar, and I 4 will read the lines of Mustafa Hamza. May we proceed? 5 THE COURT: Yes. 6 (At this point, Government Exhibit 1120X, in evidence, 7 was displayed and read to the jury). 8 MR. BARKOW: Your Honor, at this point the government 9 would request permission to read and publish Government Exhibit 10 1121X, which is a continuation of the prior call. 11 THE COURT: All right. 12 (At this point, Government Exhibit 1121X, in 13 evidence, was displayed and read to the jury) 14 MR. BARKOW: Your Honor, at this point the government 15 requests permission to read and publish Government Exhibit 16 1122X, in evidence, which is a continuation of this call. 17 THE COURT: All right. 18 (At this point, Government Exhibit 1122X, in evidence, 19 was displayed and read to the jury) 20 MR. BARKOW: Your Honor, at this point the government 21 requests permission to publish to the jury and read 22 Exhibit 1123X, which is in evidence, which is a continuation of 23 the call. 24 THE COURT: All right. 25 (At this point, Government Exhibit 1123X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5093 48VLSAT5 1 was displayed and read to the jury) 2 MR. BARKOW: Your Honor, at this point the government 3 requests permission to read and to publish Government Exhibit 4 1124X, which is a continuation of that call. 5 THE COURT: All right. 6 (At this point, Government Exhibit 1124X, in evidence, 7 was displayed and read to the jury) 8 MR. BARKOW: Your Honor, at this point the government 9 would request permission to read and publish to the jury 10 Government Exhibit 1125X, which is in evidence and is a 11 continuation of that call. 12 THE COURT: All right. 13 (At this point, Government Exhibit 1125X, in evidence, 14 was displayed and read to the jury). 15 MR. BARKOW: Your Honor, at this point we request 16 permission to read and publish Government Exhibit 1126X which 17 is in evidence and is a continuation of this call. 18 THE COURT: All right. 19 (At this point, Government Exhibit 1126X, in evidence, 20 was displayed and read to the jury) 21 MR. BARKOW: Your Honor, at this point we request 22 permission to read and publish Government Exhibit 1127X, which 23 is in evidence and a continuation of this call. 24 THE COURT: All right. 25 (At this point, Government Exhibit 1127X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5094 48VLSAT5 1 was displayed and read to the jury) 2 MR. BARKOW: Your Honor, at this point the government 3 requests permission to read and publish to the jury Government 4 Exhibit 1128X which is in evidence and continues this call. 5 THE COURT: All right. 6 (At this point, Government Exhibit 1128X, in evidence, 7 was displayed and read to the jury) 8 MR. BARKOW: Your Honor, we request permission to 9 publish and read Government Exhibit 1129X, which is in 10 evidence, and which continues this call. 11 THE COURT: All right. 12 (At this point, Government Exhibit 1129X, in evidence, 13 was displayed and read to the jury) 14 MR. BARKOW: Your Honor, we request permission to read 15 and publish Government Exhibit 1130X which continues this call. 16 THE COURT: All right. 17 (At this point, Government Exhibit 11:30X, in 18 evidence, was displayed and read to the jury) 19 MR. BARKOW: Your Honor, may we read and publish 20 government Exhibit 1131X, which is in evidence and which 21 continues this call? 22 THE COURT: Yes. 23 (At this point, Government Exhibit 1131X, in evidence, 24 was displayed and read to the jury) 25 MR. BARKOW: Your Honor, we request permission to read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5095 48VLSAT5 1 the final part of this conversation, another transcript, 1132X, 2 which is in evidence. 3 MR. MORVILLO: May I just have a minute, to speak with 4 Mr. Barkow? 5 THE COURT: Yes. 6 (Off the record discussion) 7 MR. BARKOW: Your Honor, based on what Mr. Morvillo 8 said, I think this might be a good place to break. 9 THE COURT: All right. 10 MR. BARKOW: Given the time. 11 THE COURT: Yes. All right, ladies and gentlemen, 12 we'll break for the day. 13 Ladies and gentlemen, a few things. I've taken a few 14 stretch breaks. I noticed several of you were stretching in 15 your chairs, and if -- I reiterate, that if at anytime any of 16 you would like a stretch break in addition to the ones that I 17 call, just raise your hand and I would be happy to do that. I 18 try and watch you carefully to see if anyone is feeling 19 uncomfortable and call stretch breaks accordingly. But you 20 should feel perfectly free to raise your hand. 21 On the other hand, please don't talk in the jury box, 22 because that can be distracting and I certainly cannot hear if 23 something is said in the jury box, so please follow those 24 instructions. Remember also that if there's an administrative 25 matter, you bring it to Mr. Fletcher's attention, but never, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5096 48VLSAT5 1 ever talk about anything of substance on the case. 2 There have been requests that the temperature to the 3 courtroom -- there are conflicting desires with respect to the 4 temperature in the courtroom. Some people would like it 5 colder, and some people would like it warmer. We'll try and 6 reach a happy medium, but if any of you would like to bring 7 sweaters or anything like that to make yourself more 8 comfortable, by all means.... 9 In this courtroom, unlike another courtroom which I 10 often sit in, at least the vents, so far as I can tell, are not 11 directly above the jury box with the air on you. Or at least 12 are sufficiently far away. But again, we'll try and reach a 13 happy medium with respect to the temperature, because your 14 comfort is important to me. 15 Finally, I reiterate all of my instructions that I 16 give you every day. They are very important to follow. 17 Please, please don't talk about this case at all. Please don't 18 look at or listen to anything to do with the case. If you 19 should see or hear something inadvertently, simply turn away. 20 Always remember to keep an open mind until you've 21 heard all of the evidence, I've instructed you on the law and 22 you've gone to the jury room to begin your deliberations. 23 Fairness and justice requires that you do that. 24 With that, I look forward -- have a good evening. I 25 look forward to seeing you tomorrow morning at 9:30. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5097 48VLSAT5 1 All rise, please. Follow Mr. Fletcher to the jury 2 room. 3 (Jury exits the courtroom) 4 THE COURT: Please be seated, all. 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 5098 48V5SAT6 1 THE COURT: I am hesitant to address the issue that 2 Ms. Baker raised at the beginning of the day because Ms. Baker 3 isn't here. 4 MR. TIGAR: Your Honor, I have been working on a draft 5 for something about this and I would be happy to wait until the 6 morning when Ms. Baker could be here to talk about it. I 7 think, on reflection, your Honor said that you had some views 8 about how one might resolve this and the Court's views would be 9 helpful to us. 10 THE COURT: Could we get Ms. Baker here? 11 MR. MORVILLO: Absolutely, your Honor. May I step 12 out? 13 THE COURT: Sure. 14 While we are waiting for Ms. Baker let me just talk 15 with the lawyers briefly. 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5099 48V5SAT6 1 (At side bar) 2 THE COURT: I did call stretch breaks today because I 3 did see jurors stretching and it was a -- it was a long day of 4 reading transcripts and that's why I called a couple of stretch 5 breaks today. It was clear to me, even during the stretch 6 breaks, that some jurors stretched and stretched their backs 7 and the like so I point that out to you. 8 I believe I heard Juror 9, which she was walking into 9 the jury box say, it's a long day. And the reason for my 10 greater explanations at the end of the day which the jurors 11 seemed to appreciate, is that towards the end of the day I 12 noticed what appeared to be juror 9 mutter on a couple of 13 occasions. 14 And so, I thought it was appropriate to give a longer 15 instruction today. So I bring that to your attention. 16 MR. FALLICK: Your Honor, may I be excused? I have a 17 meeting with someone. 18 THE COURT: Absolutely. I will just wait for 19 Ms. Baker and then give you my thoughts. 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5100 48V5SAT6 1 (In open court) 2 MR. MORVILLO: Your Honor, Ms. Baker will be here 3 presently. 4 THE COURT: All right, just let me know. 5 (Recess) 6 THE COURT: The defendants were in the process of 7 putting something together to submit to me in writing and 8 raised the issue that if I had thoughts on this subject it 9 might obviate some of the briefing. And I know that on the 10 other side the government has a desire to not interfere with 11 the chronological presentation of the calls. And the 12 defendants asked if I had thoughts whether I would share its 13 thoughts. 14 As you know, I don't decide anything until it is 15 completely argued on the facts and the law. I did have some 16 preliminary views on this subject but these are very 17 preliminary. 18 The Government's Exhibits 1315 and 1315C are, as I 19 understand it, in evidence, and the defendants believe that 20 there are issues raised by the e-mail correspondence that they 21 have received from the government. In particular, there is an 22 e-mail from Ms. Banout, the gist of which is that Ms. Banout 23 had problems with translation of what is 1315. And, if I read 24 the e-mails correctly, she experienced major technical 25 problems, significant interruption and static clicks which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5101 48V5SAT6 1 distorted a segment of a conversation between Sattar and 2 Mohammed Salah dated June 21, 2000, I already translated it 3 verbatim and requested that it is a good idea not to use it. 4 Please advise. 5 And again, as I understand it, after that e-mail the 6 recording was then sent to ERF and enhanced, and that enhanced 7 recording was eventually translated by Ms. Benjamin. 8 Now, the government says that, in the letter conveying 9 this to the defendants, that this is not 3500 material, nor 10 Rule 16 material and it is not Brady material. And I can 11 reasonably go through the analysis that, on each of those 12 subjects it appears to me that on the one hand, the defendants 13 make too much of Ms. Banout's e-mail since the recording was 14 eventually enhanced -- quite recently -- and Mr. Losinski, who 15 enhanced the recording, testified how he enhanced the recording 16 and that's not seriously subject to dispute. And having 17 enhanced the recording, the recording was then transcribed by 18 Ms. Benjamin and is sufficiently understandable to Ms. Benjamin 19 to have resulted in transcripts. 20 I can physically go over all of those transcripts, 21 which the parties represent would take about 45 minutes, to 22 assure myself that they are sufficiently, internally consistent 23 and that the inaudible parts, as reflected by Ms. Benjamin's 24 translation, do not render the transcripts and the recording so 25 unreliable as to be inadmissible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5102 48V5SAT6 1 Ultimately, what these questions relate to are the 2 issues of sufficient reliability as related to audibility of 3 the tapes, of the recording, because there is nothing in the 4 e-mail correspondence that undercuts the authenticity of the 5 recordings themselves. 6 The Court of Appeals has said, in Arrango-Correa, 851 7 F.2d 54, (2d.Cir 1988) at 58, as follows: "The mere fact that 8 some portions of a tape recording are inaudible does not, by 9 itself, require exclusion of the tape unless the unintelligible 10 portions are so substantial as to render the recording, as a 11 whole, untrustworthy. The recording is admissible and the 12 decision should be left to the sound discretion of the judge. 13 Our decisions in this area reveal a clear preference for the 14 admission of recordings notwithstanding some ambiguity or 15 inaudibility, as long as the recordings are probative." 16 Internal citations and quotations omitted. 17 And then the Court of Appeals went on to say, in 18 determining the admissibility of the tape recordings, the 19 district court correctly focused on the probative nature of the 20 tapes and not merely their audibility. 21 Having said all of that, it would appear to me that 22 the additional evidence that Ms. Banout initially found this 23 tape to be so inaudible that without more she -- as an expert, 24 was recommending against the use of the tape. 25 Now, the government is right that legal conclusions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5103 48V5SAT6 1 are for the Court, factual conclusions are for the jury. And 2 the government, in its letter, said that it wants to argue out 3 whether any of the e-mails are properly able to be used. 4 And so, I come down to the fact that these are still 5 preliminary views, but it would appear to me that the 6 reasonable resolution of this issue is to recall Ms. Banout and 7 to make it clear what the providence of 1315 was. 8 Ms. Banout listened. Ms. Banout found the tape to be 9 insufficiently audible. The tape was then sent to the ERF 10 facility, was enhanced, and Ms. Benjamin translated the tape. 11 One reason I say that is I have ruled on authenticity 12 but, as the defendants point out, ultimate issues of 13 reliability are for the jury and these are issues subject to 14 evidence and argument to the jury. And, it would appear to me 15 that that resolution, both fairly places the issue before the 16 jury and allows the chronological presentation of the evidence. 17 Those are my preliminary views. They're based on what 18 the parties argued to me this morning. The government letter 19 to the defendants, the defendant hasn't fully briefed this 20 issue, the government hasn't fully argued it to me, but I have 21 listened to lots of arguments over the other issues involved. 22 I also have a question here, which is, there was one 23 tape that I thought I said because of issues raised with 24 respect to the calls and interruptions, the defense asked that 25 the actual recording be played to the jury so that the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5104 48V5SAT6 1 could hear what was really on the tape. And I said that that 2 was a reasonable request. 3 MS. BAKER: Your Honor, that was in fact Government 4 Exhibit 1315 and 1315C, and your Honor said that on July 21st, 5 which was the day that we had the argument about whether or not 6 these exhibits should be admitted. 7 And what prompted your Honor to say that was that it 8 had been elicited from Agent Kerns when he testified, elicited 9 by Mr. Tigar on cross-examination, that the whole reason why 10 Agent Kerns took this particular series of calls and put on the 11 CD which is now 1315, was that there had been an issue raised 12 by a translator about the audibility of these calls. And so, 13 Agent Kerns had been asked to put this series of audio files on 14 this CD specifically so that it could go down to ERF to be 15 enhanced. 16 So, the very testimony that your Honor was essentially 17 proposing should now be elicited by recalling Ms. Banout, 18 actually, already has been presented to the jury through 19 cross-examination of Special Agent Kerns. And that is what 20 then led to the oral argument in which your Honor ultimately 21 ruled the two disks admissible but, in light of the issues 22 raised by the defense, said that the transcripts should not be 23 excerpted but rather presented in full. And that if the 24 defense wished to have the audios played, that they should be 25 played. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5105 48V5SAT6 1 MR. TIGAR: I thank your Honor for those observations. 2 Of course, none of us in this courtroom right now except 3 perhaps for Mr. Yousry or Mr. Sattar, would benefit 4 particularly from listening to the audios in the sense that -- 5 fully -- because the noises are -- I don't speak Arabic and it 6 is a language that is just very, very different in all its 7 accenting and so on from any language that I do speak. 8 Reading the transcripts, which are prepared by 9 translators who are anxious to convey meaning, would not point 10 out all of the problems necessarily. I mean, I think that's a 11 jury decision, although you can get enough out of them -- the 12 Court has ruled that the Court didn't get enough out of them to 13 make the admissibility determination. 14 THE COURT: Well, I said I'm prepared -- I admitted 15 them knowing my -- my recollection is no one specifically made 16 the audibility argument to me and I said if that was the issue, 17 I will sit down tonight and go over the transcripts and make 18 the judgment as to the internal consistency of the call and all 19 the other indicia that you would normally look at to say this 20 is reliable. And I'm perfectly prepared to do that for the 21 parties. 22 MR. TIGAR: I understand that, your Honor. And we are 23 some ways down the road from the basic admissibility 24 determination. We are, when the government concludes its 25 presentation to us or its production to us, going to file a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5106 48V5SAT6 1 letter and raise other things. 2 This is a relatively narrow issue. I take issue with 3 Ms. Baker's statement because Mr. Kerns, who doesn't speak 4 Arabic, there is no showing that he listened to the tapes or 5 even was aware of the kinds of problems other than what 6 Ms. Banout told him. 7 The translator -- excuse me, the expert, Mr. Losinski 8 said at page 4188: "I don't recall hearing anything quite like 9 it before," referring to the noises he was hearing on the tape. 10 And he said he recalled somebody mentioned something 11 about a transcript. 12 So, Ms. Banout's perception, insofar as what's now in 13 evidence, is unique and previously unheard. Our application, 14 therefore, is -- and we can write it up for the Court if 15 anybody wishes, but -- our application is, yes, we ask that 16 Ms. Banout be recalled, that she be regarded as having been 17 under cross-examination from her last appearance now from today 18 in terms of the rule on witnesses, and that if she has had some 19 consultation with the government between now and then, that 20 that be disclosed to us before we begin the examination. 21 But, the examination, I'm sure, would be quite brief 22 and that would advance the inquiry. 23 MS. BAKER: Your Honor, in light of the fact that 24 there already has been testimony from Agent Kerns and 25 Mr. Losinski about the fact that problems with the original SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5107 48V5SAT6 1 audio files were what led the disk to be sent down to ERF in 2 the first place, and in light of the further fact that once the 3 audio files were enhanced and came back to New York that the 4 final translations, which is what the government is seeking to 5 use as evidence at this trial, that those were prepared by 6 Ms. Benjamin from the enhanced CD which is 1315C; it seems to 7 the government, irrelevant, almost what Ms. Benjamin thought 8 about the original -- 9 THE COURT: Ms. Banout. 10 MS. BAKER: Sorry -- what Ms. Banout thought about the 11 original unenhanced recordings because those are not the 12 recordings that yielded the transcripts that the government is 13 offering. And those recordings are, themselves, in evidence. 14 If Mr. Tigar wishes the jury to hear them the jury could draw 15 its own conclusions. But those are not the recordings that 16 were used to make the transcripts. The transcripts were made 17 by Ms. Benjamin from the ones on the enhanced CD. 18 THE COURT: But for all of the reasons that I have 19 said, in evidence may have a little probative value because of 20 the links that I said initially and that you just repeated, 21 though you have added the fact that the jury already knows from 22 Agent Kerns why this particular recording was made and taken to 23 ERF so that the jury already has that. 24 What the jury doesn't have -- the jury has 25 Mr. Losinski describing what he heard on the tape, which was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5108 48V5SAT6 1 crackling sound. And the jury doesn't get, have Ms. Banout 2 saying yes, she was the translator who initially listened to 3 the tape and this is what she heard on the tape and which led 4 her to say that she didn't think that, at least at that point, 5 that the tape was one to be used. 6 Now, the government says that that is close to 7 irrelevant. I can see some relevance with respect to the 8 defense argument with respect to the reliability of the 9 recordings, though I fully appreciate the steps in the argument 10 with respect to the recordings were then enhanced and 11 Ms. Benjamin, they were sufficiently audible for Ms. Benjamin 12 to make the translations from the enhanced recording. 13 MS. BAKER: Your Honor, I would add that when 14 Ms. Benjamin testified she was cross-examined about her 15 translation of this series of audio files. 16 So, we have already had cross-examination of the 17 expert whose opinion the government is relying on as to the 18 evidence that comes from these recordings. It's Ms. Benjamin 19 who took the enhanced recordings, did translations which are 20 her expert opinion of the content of them, and she has already 21 been crossed about those enhanced recordings. 22 THE COURT: But she wasn't crossed with respect to the 23 original 1315 as opposed to the enhanced? 24 MS. BAKER: That is correct; and your Honor, honestly, 25 I don't know whether she listened to the originals. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5109 48V5SAT6 1 evidence that the government is offering is translations of the 2 enhanced versions. So, frankly, I don't know if Ms. Benjamin 3 were to be crossed about the original calls whether she would 4 be able to say anything about them at all. 5 I think what I would say to your Honor overall is 6 that, in light of the testimony given by Special Agent Kerns, 7 in light of the testimony given by Mr. Losinski, in light of 8 the testimony given by Ms. Benjamin -- again, who is the expert 9 whose translation the government is using and it is a 10 translation of the enhanced audios -- the government submits 11 that any minimal relevance to recalling Ms. Banout to 12 cross-examine her about the unenhanced recordings, which are 13 not the ones that the government is relying on, any minimal 14 relevance is outweighed under Rule 403 by confusion to the 15 jury. Because it will be the jury hearing cross-examination 16 about audio files that the government is not relying on for 17 translations being offered in evidence at the trial. 18 THE COURT: We begin, I believe, from the proposition 19 that there is some relevance to what the state of the tape or 20 the recording was before being enhanced, and the government has 21 referred to that as little relevance, minimal relevance. There 22 is some relevance. 23 On the other hand, is the relevance substantially 24 outweighed by the danger of unfair confusion? No. 25 I already laid out the steps in my own analysis which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5110 48V5SAT6 1 are not difficult for the jury to follow as a matter of fact: 2 Here was a recording that was very difficult to listen to, so 3 difficult that the expert translator who first listened to it 4 was not sufficiently comfortable with the translation of the 5 unenhanced tape. So, the tape was enhanced and the other 6 translator translated the enhanced tape. 7 So, there is some relevance not substantially 8 outweighed by the danger of confusion. And it would seem to me 9 that redirect would easily clear up any confusion. 10 And, indeed, if the government wished to recall 11 Ms. Benjamin to assure the jury that Ms. Benjamin was able to 12 translate everything which she did in all of those calls, the 13 government could recall Ms. Benjamin to underline the point. 14 Any danger of conclusion is also undercut by the fact 15 that the government says that Agent Kerns has already testified 16 about this. 17 But the one thing that Agent Kerns can't testify to is 18 what was it that is actually on that tape. You are right, the 19 jury can listen to that, too, but the expert listening to the 20 tape is of some evidentiary value. This woman listens to tapes 21 all the time. Her experience in listening to tapes is 22 substantial. 23 MR. TIGAR: I don't mean to quarrel with the Court but 24 we have been calling these recordings, and not tapes, to 25 emphasize their digital character. I don't mean to quarrel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5111 48V5SAT6 1 with the Court's characterization. 2 THE COURT: I try to refer to them as recordings. If 3 I referred to them as tapes, I misspoke. 4 So, that would appear to be a perfectly reasonable 5 resolution without having any further briefing from the 6 parties. 7 If the parties want me to, in addition, read the 8 transcripts beginning with 1260, I will certainly do that also. 9 MS. BAKER: Your Honor, the one thing the government 10 does ask at this time is that the Court deny Mr. Tigar's 11 request that we not be permitted to speak with Ms. Banout. 12 Your Honor, there is simply too many sorts of open 13 questions and potential for true confusion if we are not 14 allowed to speak with Ms. Banout about the purpose for which 15 she is being recalled. She did not give any direct testimony 16 about most of the segments of this call because she isn't the 17 person who ultimately did the translations. 18 It appears that in her e-mail she is not talking about 19 overall all 13 segments of the call, but rather, one specific 20 portion, which she ultimately identifies by particular file 21 name in the e-mail. 22 We don't know, as we stand here now, whether she is 23 even aware that ultimately these audio files were enhanced, so 24 we ask that we be permitted to prep her as we would, or speak 25 with her as we would any witness before a witness is called to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5112 48V5SAT6 1 give testimony about new subject matter. 2 THE COURT: I will allow that. I will also allow you 3 to call her on direct and then allow the defendants to cross to 4 explain this subject matter which, so far as I can tell, was 5 not a subject matter of her direct testimony. 6 MR. TIGAR: Our application is our application. If it 7 is denied we would point out that this preparation to which the 8 government refers may, itself, lead to more Jencks material for 9 the cross-examination that will eventually follow. 10 THE COURT: Yes. It may. It may not. 11 MR. TIGAR: And that, too, will be permissible subject 12 of inquiry. 13 THE COURT: Absolutely. 14 MR. TIGAR: Inquiry? 15 THE COURT: Absolutely. You are welcome to examine 16 the witness with respect to witness preparation and whether any 17 notes were made of the preparation. 18 And as I already told the government, they also can, 19 if they wish, recall Ms. Benjamin on the subject. 20 And, finally, there are two other things that are sort 21 of outstanding out there. One is whether the defendants want 22 the tape to be played if I adhere to my admissibility 23 determination already whether -- I said that the tape can be 24 played so that the jury can listen to the tape. 25 MR. TIGAR: May we, in light of what's happened in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5113 48V5SAT6 1 last 30 minutes, may we give an answer in the morning? 2 THE COURT: Sure. 3 MR. TIGAR: Thank you, your Honor. 4 THE COURT: And the other question is whether the 5 parties want me or ask that I review, for consistency, the 6 transcripts' probative nature of the tapes, all of the 7 transcripts. I am perfectly happy to do that and may do it 8 anyway. 9 I have been listening very carefully, obviously, to 10 all of the recordings that have come in and, as I commented, 11 when some issues were raised with respect to Agent Kerns that 12 the authenticity of the tapes was supported by the content of 13 the authenticity of the recordings was supported by the content 14 for the reasons that I have already explained. 15 Well, I'll review all of these tapes, all of the 16 transcripts tonight, 1260 through 1150 on the list that I was 17 given this morning. 18 Okay, anything else? I saved you all some time. 19 MR. MORVILLO: 9:15 tomorrow, your Honor? 20 THE COURT: 9:15. 21 (Adjourned to 9:15 a.m., September 1, 2004.) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5114 1 INDEX OF EXAMINATION 2 Examination of: Page 3 SCOTT KERNS (recalled) 4 Direct By Ms. Baker . . . . . . . . . . . . 5061 5 Cross By Mr. Tigar . . . . . . . . . . . . . 5064 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 1318L 5064 9 1318 5066 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300