5201 4925SAL1 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 September 2, 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 (212) 805-0300 5202 4925SAL1 1 (Trial resumed; jury not present) 2 THE COURT: Can I talk to the lawyers? 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 (212) 805-0300 5203 4925SAL1 1 (At side bar) 2 THE COURT: Good morning, all. 3 MR. PAUL: Good morning, Judge. 4 MR. TIGAR: Good morning. 5 THE COURT: One of the jurors would like to break at 6 4:15 today because he has a 6:00 flight, and that's fine. 7 MR. RUHNKE: Is that early enough, your Honor, do you 8 think? 9 THE COURT: Actually, I was thinking about breaking at 10 4:00, just to be sure. 11 MR. TIGAR: Your Honor, is the president going to make 12 a speech at Ground Zero today? 13 THE COURT: I have no idea. 14 MR. TIGAR: Because if so, there will be a lockdown 15 below 14th Street and getting out of this part of Manhattan 16 will be a problem. 17 THE COURT: Thank you. I will leave it to the 18 marshals and ask if there is any problem about getting out at 19 4:00 and make sure that the jurors can get out. 20 Is 4:00 okay? 21 MR. RUHNKE: Yes, your Honor. Of course. 22 THE COURT: Okay. We have to notify the vans, too. 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5204 4925SAL1 1 (In open court) 2 THE COURT: Please be seated, all. 3 MR. TIGAR: Good morning, your Honor. 4 At some point today the government will be offering 5 exhibits 560 and 561, which are newspaper articles that purport 6 to contain statements by Mr. Taha. And there was 7 correspondence about 561; Mr. Fallick's letter of August 31st, 8 and Ms. Baker's letter of August 31st. 560 raises the same 9 problem. 10 I bring that to the Court's attention because I am 11 sure that Mr. Fallick would like to be heard on these and we 12 would also. 13 There has been no previous ruling as to the 14 admissibility of these items and we would suggest that the 15 question of the basic hearsay objection be dealt with before 16 the government puts on the authentication and the translation 17 and all of that testimony. 18 THE COURT: All right. 19 MS. BAKER: Your Honor, as to Government Exhibit 561T, 20 about which there was an exchange of letters, the objections 21 raised by Mr. Fallick in his letter were objections on grounds 22 of relevance and Rule 403 and I address those in the letter. 23 If Mr. Tigar is now adding a hearsay objection, my 24 response to that is those are statements of Taha in furtherance 25 of the charged conspiracies, thus they are co-conspirator SOUTHERN DISTRICT REPORTERS (212) 805-0300 5205 4925SAL1 1 statements admissible under 801(d)(2)(E). And, as I pointed 2 out in the letter, Taha essentially adopts and ratifies the 3 article by his references to it in the telephone call that I 4 cited in the letter. 5 The same analysis applies with respect to Government 6 Exhibit 560, which is the Arabic language news articles and its 7 translation, which is 560T and, again, Taha adopts and ratifies 8 the article in a telephone call. In that instance the 9 telephone call is Government Exhibit 1171X. And starting on 10 page 12 of Government Exhibit 1171X, we have the following 11 exchange between Taha and a co-conspirator referred to as Abu 12 Bakr. 13 Taha asks: Have you read Al-Hayat or Asharq Al-Awsat 14 or any of those? 15 Abu Bakr says: No. 16 Taha says: It probably does not reach you. Maybe 17 the -- unintelligible -- itself, does not reach your town. 18 Abu Bakr says: We don't get Al-Hayat here in Aswan. 19 Taha says: Yes. 20 Abu Bakr says: But we get Asharq Al-Awsat late. 21 Taha makes an affirming noise. 22 Abu Bakr continues: For example, we get it three to 23 four days late. 24 Now, skipping down a few lines Taha says: If it is 25 around three to four days late, you might find it there. There SOUTHERN DISTRICT REPORTERS (212) 805-0300 5206 4925SAL1 1 are things that are related to me. 2 Abu Bakr says: I shall look for it. 3 Now, that's Government Exhibit 1171X at pages 12 to 4 13; that's a call on September 18th of 2000. 5 So, again, Taha has ratified articles relating to him 6 from three or four days earlier, and Government's Exhibits 560 7 and 560T are the original Arabic and the translation of an 8 article in Al-Hayat dated four days earlier, September 14th, 9 2000, And that article quotes Taha talking about, basically, a 10 threat -- making basically a threat to the United States. 11 So, again, the government's argument is that those are 12 co-conspirator statements in furtherance of the conspiracy 13 given that they are ratified by Taha in the phone call. 14 MR. TIGAR: Your Honor, among the problems with that 15 analysis is page 2 of 560T, which the second paragraph which 16 says: "Taha, who was considered one of the prominent leaders 17 of Al Gamat for the past few years, warned in a report received 18 by French press" -- I assume that's Agence France Presse -- "of 19 committing political assassinations similar to the operation 20 which ended the life of the Egyptian president, Anwar Al-Sadat 21 in 1981. 22 Now, that assertion, which has to do with a threat on 23 the life of an Egyptian, is not adopted by anything in that 24 telephone call even if one assumes that there are things that 25 are related to mean could be considered to be an adoption. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5207 4925SAL1 1 So, we first attack the adoption; and second, we think 2 that the argument goes well beyond itself, given its own term. 3 THE COURT: I couldn't rule on this without looking at 4 the article and considering the transcript and it is not 5 something that you brought to my attention before. 6 I have reviewed the correspondence on 561 and reviewed 7 in detail that article and I have viewed -- I have read the 8 correspondence and I have views on that article, but no one 9 raised an issue with respect to this article. 10 MR. TIGAR: This was on our list this morning, your 11 Honor. 12 MS. BAKER: Your Honor, this article was not just 13 disclosed this morning. I can find the date when it was 14 disclosed but this issue has been on the -- it has been 15 possible for this issue to be raised for some time now. 16 Obviously it is the defense making an objection to a 17 piece of evidence that the government is offering, so we don't 18 control the timing of that, but this article was not just 19 disclosed for the first time today. 20 THE COURT: Right. I am just saying, it was brought 21 to my attention for the first time, and I would at least like 22 the opportunity to consider that article because I really think 23 that articles have to be considered individually and I have to 24 consider the issues of -- among others -- relevance, 403, 25 hearsay if it is raised. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5208 4925SAL1 1 And 561 has been argued to me and I have a view on 2 561. 3 MR. FALLICK: Your Honor, I have, obviously written 4 your Honor a letter about 561. I have not written the Court a 5 letter about 560. We may have received it before and I accept 6 Ms. Baker's representation, I just don't recall seeing it and I 7 would like the opportunity to write something about it tonight. 8 THE COURT: That's fine. 9 MR. FALLICK: Thank you. 10 THE COURT: With respect to 561, when will that be 11 offered? 12 MS. BAKER: Your Honor, the government is in the 13 middle of presenting the transcript of a telephone call. Upon 14 completion of that transcript, we would call, as a witness, the 15 translator who prepared 560T, 561T, and also 538T, which is the 16 translation of the Al-Jazeera videotape about which there has 17 been prior litigation. 18 What I would propose is that, at the end of that 19 translator's testimony, we would offer all three of the 20 exhibits. And if your Honor, at that time, wishes to reserve 21 on 560T, sobeit. But we would hope that the other two exhibits 22 would at least be admitted at that time. 23 THE COURT: I will reserve on 560T. I haven't seen 24 it. 25 MS. BAKER: There should be a copy of it in your SOUTHERN DISTRICT REPORTERS (212) 805-0300 5209 4925SAL1 1 Honor's exhibit binders. If not, I can certainly hand up a 2 copy right now. 3 As far as the chronological presentation, my 4 colleagues advise me that we would expect, if we are allowed, 5 if we are able to present everything chronologically, to reach 6 560T after the morning recess. So, if it is possible for the 7 Court to review the matter during the morning recess, we would 8 request that. 9 Shall I hand up another copy? 10 THE COURT: Yes. I will look at it but I would tend 11 to, if the defendants want to give me something in writing, 12 they could. But I will listen to argument on that. 13 With respect to 561, the objection on behalf of 14 Mr. Sattar is relevance and unfair prejudice. The statements 15 by Taha in the article are plainly relevant, indeed highly 16 relevant to the allegations in the indictment in Counts Two and 17 Three, and that relevance is not outweighed by the danger of 18 unfair prejudice. 19 In the transcript, Taha identifies the statements as 20 his own and directs Mr. Sattar to them. 21 Those statements, though, which could, which Mr. Taha 22 adopts and endorses on his own -- as his own -- are different 23 from the remainder of the article and the headline in the 24 article. 25 The statements that are attributed to Taha are in the SOUTHERN DISTRICT REPORTERS (212) 805-0300 5210 4925SAL1 1 first and second paragraphs of the article. The last two 2 paragraphs of the article are the reporter's comments. And 3 those -- as to those paragraphs I will exclude those paragraphs 4 and the headline given the fact that those are the comments by 5 the reporter that are not plainly adopted by Taha, so that the 6 relevance of comments by the reporter would certainly be 7 minimal and outweighed by unfair prejudice. 8 MS. BAKER: Your Honor? 9 THE COURT: Yes. 10 MS. BAKER: I accept your characterization as to the 11 fourth paragraph of the article, but I would ask your Honor to 12 reconsider the headline and the first paragraph. 13 The first paragraph actually does have the word 14 'avenge' in quotation marks. 15 THE COURT: I said I would allow the first and second 16 paragraphs. I excluded the third and fourth. 17 MS. BAKER: I'm sorry. I thought your Honor was 18 saying the second and third. 19 THE COURT: No, the first refers to his statement, the 20 second refers to his statement; the third and fourth are the 21 reporter's editorializing and describing history. 22 Now, the exhibit is offered only against Mr. Sattar 23 and only with respect to Counts Two and Three. There is an 24 objection on hearsay grounds from Ms. Stewart and Mr. Yousry. 25 Since the statement is alleged to be a statement in SOUTHERN DISTRICT REPORTERS (212) 805-0300 5211 4925SAL1 1 furtherance of the Count Two conspiracy, it could not be 2 considered for the truth of any of the matters asserted against 3 Ms. Stewart or Mr. Yousry. 4 So, the correct instruction for the jury would be: 5 This exhibit is offered only against Mr. Sattar and only with 6 respect to Counts Two and Three of the indictment and cannot be 7 considered for the truth of any of the matters asserted against 8 Ms. Stewart or Mr. Yousry. 9 MR. TIGAR: Your Honor, so I don't keep singing the 10 same song all the time, obviously we appreciate your Honor's 11 instruction. We have previously taken a position about the 12 adequacy of the instruction with respect to spillover prejudice 13 concerning the presence of Count Two in the indictment, and 14 that is built into our objection to this, as well as the other 15 items that are similarly situated. 16 I don't want to take up the Court's time by rearguing 17 the same thing over and over. 18 THE COURT: There is a no danger of unfair prejudicial 19 spillover from this item, particularly after the Court has 20 redacted it and will give a limiting instruction to the jury 21 and, particularly given, as I have said before, the ability of 22 the government in a case solely against Ms. Stewart and 23 Mr. Yousry and without Mr. Sattar, to prove the existence of 24 the Count Two conspiracy. 25 And as I have said, I have also given the appropriate SOUTHERN DISTRICT REPORTERS (212) 805-0300 5212 4925SAL1 1 limiting instruction with respect to this exhibit, and there is 2 no reason to believe that the jury cannot carefully follow that 3 instruction. 4 All right, let's bring in the jury. 5 MS. SHELLOW-LAVINE: Your Honor, may I confer with 6 Mr. Barkow for a minute? 7 THE COURT: Yes, sure. 8 MR. BARKOW: Your Honor, a housekeeping matter. When 9 we get to a point which is going to be the third thing we are 10 going to do this morning, we will play the first 11 pages 11 so-to-speak of the June 23rd prison call. First, we are going 12 to finish the call that we were reading yesterday; then we are 13 going to call the witness that Ms. Baker was talking about; 14 then we are going to play the first 11 pages of that call. 15 Mr. Habib, with counsel for Ms. Stewart, because he 16 speaks Arabic, has been kind enough to offer to help us do a 17 scrolling transcript because we don't have Ms. Hassaein here 18 today. And we were asking if we could -- anyway, that was 19 going to happen, your Honor, I was going to ask if we can move 20 a chair, but. 21 THE COURT: Sure. If you want Mr. Habib assist you 22 you can also have Mr. Habib assist you. 23 MR. BARKOW: Thank you. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5213 4925SAL1 1 (Jury present) 2 THE COURT: Please, be seated, all. 3 Good morning, ladies and gentlemen. 4 THE JURY: Good morning. 5 THE COURT: It is good to see you all. 6 Government? Yes? 7 MR. MORVILLO: Your Honor, we were in the middle of 8 reading Government Exhibit 1161X and we would like permission 9 to continue reading that transcript. 10 THE COURT: 1161X, all right. 11 MR. MORVILLO: May Mr. Dember resume the stand and may 12 we put it up on the screen? 13 THE COURT: Yes. 14 MR. MORVILLO: Your Honor, for the record, 1161X is a 15 call on July 24th, 2000, at 3:49 p.m. between Rifa't Ahmed Taha 16 Musa and Salah Hashim. We were on page 9 when we concluded 17 yesterday. 18 May I resume? 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1161X, in evidence, 21 was displayed and read to the jury) 22 THE COURT: All right. 23 MS. BAKER: Your Honor, the government calls Samira 24 Sabek. 25 SAMIRA SABEK, SOUTHERN DISTRICT REPORTERS (212) 805-0300 5214 4925SAL1 1 called as a witness by the Government, 2 having been duly sworn, testified as follows: 3 THE DEPUTY CLERK: Please state your full name and 4 spell your full name, slowly, for the record. 5 THE WITNESS: Samira Sabek. S-A-M-I-R-A, S-A-B-E-K. 6 THE COURT: All right. Ms. Baker, you may examine. 7 MS. BAKER: Thank you, your Honor. 8 DIRECT EXAMINATION 9 BY MS. BAKER:: 10 Q. Ms. Sabek, please, let me remind you to please speak loudly 11 so everyone will be sure to hear you. 12 A. Sure. 13 Q. Ms. Sabek, where do you work? For whom do you work? 14 A. I work for the FBI. 15 Q. What do you do for the FBI? 16 A. I'm a linguist. 17 Q. How long have you worked for the FBI as a linguist? 18 A. A little over two years. 19 Q. Now, do you have a specific title or a position at the FBI? 20 A. Contract linguist. 21 Q. Have you been a contract linguist all along or did you have 22 a different title when you first started? 23 A. When I first started I was a monitor, then I became a 24 contract linguist. 25 Q. Was there any difference in your duties for the FBI when SOUTHERN DISTRICT REPORTERS (212) 805-0300 5215 4925SAL1 Sabek - direct 1 you first started and then when you became a contract linguist? 2 Or has it been the same all along? 3 A. No, it is exactly the same. The same. 4 Q. And what is the work that you have been doing for the FBI? 5 A. We translate documents and recordings. 6 Q. From what language to what other language do you translate? 7 A. From Arabic to English and vice versa. 8 Q. How much do you do that? Are you working full-time? 9 A. Full-time. On a daily basis, yes. 10 Q. Do you spend all of that time doing translations between 11 Arabic and English? 12 A. Yes. 13 Q. How long have you been doing that work for the FBI? 14 A. Two years and three months. 15 Q. Now, Ms. Sabek, where were you born? 16 A. I was born in Egypt. 17 Q. How long did you live in Egypt? Until what age? 18 A. I lived there had until I was 20. 21. I'm sorry. 19 Q. When you left Egypt, to what country did you come? 20 A. To the United States. 21 Q. Have you been here ever since? 22 A. Yes. 23 Q. What is your native language, the one that you learned 24 first? 25 A. Arabic. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5216 4925SAL1 Sabek - direct 1 Q. And are you fluent in Arabic? 2 A. Yes. 3 Q. Is that the language that you learned at home as a child? 4 A. Yes. 5 Q. And is that the language that you spoke when you were 6 growing up in Egypt? 7 A. Yes. 8 Q. Are you also fluent in English? 9 A. Yes. 10 Q. When did you first learn English? 11 A. I started in junior high. 12 Q. And have you been speaking it using English ever since 13 then? 14 A. Yes. 15 Q. What language or languages do you use now in your daily 16 life? 17 A. Both English and Arabic. 18 Q. Now, let me ask you some questions about your educational 19 background. Let's start first with your education in Egypt. 20 How far did you go in school in Egypt? 21 A. I finished high school. 22 Q. Did you get any particular type of diploma or degree from 23 high school? 24 A. High school -- high school commercial diploma. 25 Q. What is a high school commercial diploma? SOUTHERN DISTRICT REPORTERS (212) 805-0300 5217 4925SAL1 Sabek - direct 1 A. It means that the course of my studies was in accounting, 2 bookkeeping, business, economics. 3 Q. Were any of your classes in high school English classes? 4 A. Yes. 5 Q. Now, since you have come to the United States, have you had 6 further education? 7 A. Yes, I did. 8 Q. What was that? 9 A. I went to Queens College for three and a half years, 10 part-time. 11 Q. And anything else after that? 12 A. Then I transferred to Boricua College. 13 Q. Would you spell the name of that for the court reporter? 14 A. B-O-R-I-C-U-A. 15 Q. What were you studying in college? 16 A. In Queens College I studied -- I was going for a major in 17 accounting. Then when I transferred to Boricua I went for a 18 major in education. 19 Q. And in what language or languages were your classes in 20 Queens College and Boricua college? 21 A. All in English. 22 Q. Did you ultimately receive a degree? 23 A. Yes, I did. 24 Q. What is your degree? 25 A. I received a degree in early childhood education. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5218 4925SAL1 Sabek - direct 1 Elementary education. 2 Q. That's a bachelor of arts degree? 3 A. Yes. 4 Q. Approximately what year did you get that degree? 5 A. December 2001. 6 Q. Did any of the classes that you took at either of the 7 colleges relate to the work that you now do as a translator for 8 the FBI? 9 A. Yes. 10 Q. Would you explain that? 11 A. The majority of the classes were mostly doing translation 12 interpretation, analysis, evaluation and sentences. 13 Q. Prior to your starting work with the FBI, did you actually 14 teach? 15 A. Yes, I did. 16 Q. For what institution or educational body did you teach? 17 A. For New York City Board of Education. 18 Q. And what subject did you teach? 19 A. I taught English literature and math. 20 Q. And were you teaching those classes in English? 21 A. Yes. 22 Q. Before you -- withdrawn. 23 For how long did you teach for the Board of Ed? 24 A. I started in February 2002 until the end of the summer of 25 2002. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5219 4925SAL1 Sabek - direct 1 Q. Now, before that, did you have some other job with the New 2 York City Board of Ed? 3 A. Yes. 4 Q. What job was that? 5 A. Paraprofessional. 6 Q. In what subject area? 7 A. Everything. In all subjects. 8 Q. What sort of student were you working with as a 9 paraprofessional for the Board of Ed? 10 A. They were all newcomers in the ESL program. 11 Q. What is ESL? 12 A. English as second language. 13 Q. So, as part of your duties, were you helping students whose 14 native language was something other than English and learning 15 English? 16 A. Yes. 17 Q. For how long did you do that? 18 A. I started from the end of '95 as substitute, then the 19 beginning in March of '96 as full-time. 20 Q. Did you continue doing that until 2002 when you started 21 teaching? 22 A. Yes. 23 Q. And so, were you working as a paraprofessional while you 24 were attending college? 25 A. Yes, I was. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5220 4925SAL1 Sabek - direct 1 Q. In order to obtain your position with the FBI, did you have 2 to pass any sort of tests? 3 A. Yes, I did. 4 Q. What kind of skills were you tested on? 5 A. Listening, understanding, speaking, writing, interpreting. 6 Q. In what languages? 7 A. In both. 8 Q. Arabic and English? 9 A. Yes. 10 MS. BAKER: Your Honor, the government offers 11 Ms. Sabek as an expert in the field translating Arabic into 12 English. 13 MR. TIGAR: May I have a moment, your Honor? 14 THE COURT: Sure. 15 (Pause) 16 MR. TIGAR: No questions, your Honor. No objection 17 from us. 18 THE COURT: All right, the witness may testify. 19 BY MS. BAKER: 20 Q. Ms. Sabek, I have placed certain items on the witness stand 21 there before you; let me ask you to take a look at those. 22 Now, as part of your duties as a linguist for the FBI, 23 were you asked to translate certain items connected to this 24 case? 25 A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5221 4925SAL1 Sabek - direct 1 Q. Let me ask you to look first at the videotape there in 2 front of you, which is marked as Government Exhibit 538; do you 3 recognize that videotape? 4 A. Yes, I do. 5 Q. Is that an item that you were asked to translate? 6 A. Yes. 7 Q. In what language is the conversation on the videotape? 8 A. In Arabic. 9 Q. And did you translate it into English? 10 A. Yes. 11 Q. How are you able to recognize that videotape as the one 12 that you translated; did you mark it in some way? 13 A. Yes, I wrote my initials on it. 14 Q. Let me ask you to look, please, at the document in front of 15 you which is marked as Government Exhibit 538T; what is 16 Government Exhibit 538T? 17 A. It is my translation of the videotape. 18 Q. And, in your opinion, is Government Exhibit 538T an 19 accurate translation into English of the Arabic that's spoken 20 on Government Exhibit 538? 21 A. Yes. 22 Q. Thank you. If you would put those aside and look, please, 23 at the item which is marked as Government Exhibit 560. Now, 24 without talking specifically about its content, what kind of an 25 item is Government Exhibit 560? SOUTHERN DISTRICT REPORTERS (212) 805-0300 5222 4925SAL1 Sabek - direct 1 A. It's a blow up of an Al-Hayat newspaper page. 2 (Continued on next page) 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 (212) 805-0300 5223 492LSAT2 Sabek - direct 1 BY MS. BAKER: 2 Q. Is that a newspaper in Arabic? 3 A. Yes. 4 Q. Were you asked to translate a particular portion of that 5 exhibit, Government Exhibit 560? 6 A. Yes. 7 Q. Okay. On which -- withdrawn. 8 Government Exhibit 560 is two pages, correct? 9 A. Correct. 10 Q. Let me ask you to look first at the first page. On which 11 side of the first page, the right or left, is the portion that 12 you translated? 13 A. On the right side. 14 Q. And how many articles down from the top of the page is the 15 portion that you translated? 16 A. The second. 17 Q. And if you would turn now to the second page, does that 18 same article continue on the second page of Government 19 Exhibit 560? 20 A. Yes, it does. 21 Q. Where on the second page does it appear? On which side of 22 the page? 23 A. The bottom of the right-hand side. 24 Q. The very lower right-hand corner? 25 A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5224 492LSAT2 Sabek - direct 1 Q. Now, if you would look please at Government Exhibit 560T, 2 do you recognize Government Exhibit 560T? 3 A. Yes, I do. 4 Q. What is Government Exhibit 560T? 5 A. It's my translation of the article. 6 Q. And in your opinion, does Government Exhibit 560T 7 accurately translate into English the Arabic news article that 8 you just identified in Government Exhibit 560? 9 A. Yes. 10 Q. Thank you. If you would put that on the side, and turn 11 please to the document marked as Government Exhibit 561. What 12 is Government Exhibit 561? 13 A. It's Page 6 of the Al-Hayat newspaper. 14 Q. And is that in Arabic? 15 A. Yes, it is. 16 Q. Were you asked to translate a particular portion of 17 Government Exhibit 560? 18 A. Yes. 19 Q. On which side of the page is the portion that you 20 translated? 21 A. The left side. 22 Q. How many articles down from the top of the page is it? 23 A. The second one. 24 Q. And if you would look please at Government Exhibit 561T, do 25 you recognize Government Exhibit 561T? SOUTHERN DISTRICT REPORTERS (212) 805-0300 5225 492LSAT2 Sabek - direct 1 A. Yes, I do. 2 Q. What is it? 3 A. It's my translation of the article. 4 Q. And in your opinion, does Government Exhibit 561T 5 accurately translate into English the Arabic language article 6 that you just identified in Government Exhibit 561? 7 A. Yes. 8 MS. BAKER: Your Honor, may I have a moment? 9 THE COURT: Yes. 10 (Off the record) 11 MS. BAKER: No further questions. And at this time, 12 the government offers Government Exhibits 560, 560T, 561, 561T, 13 and 538T. 14 MR. TIGAR: May I inquire, your Honor? 15 THE COURT: Yes. 16 MR. TIGAR: Thank you. 17 CROSS EXAMINATION 18 BY MR. TIGAR: 19 Q. Miss Sabek, would you please take a look at Exhibit 560. 20 That's the Al-Hayat newspaper. You are familiar with the 21 Al-Hayat newspaper, correct? 22 A. What do you mean? 23 Q. When you were growing up in Egypt, they had an Al-Hayat 24 newspaper, didn't they? 25 A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5226 492LSAT2 Sabek - cross 1 Q. Is it a daily paper? 2 A. That I'm not sure. 3 Q. But it's published in Cairo? Is that your understanding? 4 A. No, I don't think so. 5 Q. Would you take a look at 560T, please, your translation? 6 And turn to Page 2. Do you see on the first line, you have in 7 parenthesis "AFP". Is that -- did it say AFP in the article 8 that you were translating? 9 A. Yes. 10 Q. And is AFP spelled out there or is it just the Arabic 11 equivalent of the initials AFP? 12 A. The Arabic equivalent. 13 Q. I'm sorry? 14 A. The Arabic equivalent. 15 Q. And do you know, based on your experience, what AFP means? 16 A. Yes, it's written here in the article. If I might -- 17 Q. Would you -- 18 A. If I might read it, please. 19 Q. Go ahead please, take your time. 20 A. It's French press. 21 Q. And that's -- the words "French press" occur in the next 22 paragraph of 560T, right? 23 A. Yes. 24 Q. That is in your translation, right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5227 492LSAT2 Sabek - cross 1 Q. So from the context that you were translating, did it seem 2 to you, or were you able to tell, where this report came from, 3 what this French press was? 4 A. I translated -- 5 MS. BAKER: Objection, your Honor. 6 THE COURT: I'll allow it. 7 Q. You can answer. Were you able to tell? 8 A. Yes, I translated from the letters. Then, as I moved on in 9 the article, I found what it stands for. 10 Q. And so AFP, in your understanding, means -- 11 A. The French press. 12 Q. -- French press? 13 A. Yes. 14 Q. Have you ever heard the expression Agence France Presse? 15 A. Yes. 16 Q. And based on the context, is it your conclusion that AFP 17 stands for that entity, Agence France Presse. 18 A. Yes. 19 Q. Which is that French for? 20 A. Agency. 21 Q. French press? 22 A. French press, agency, France, yes. 23 Q. Thank you very much. 24 MR. TIGAR: I have no further questions. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5228 492LSAT2 Sabek - cross 1 MS. BAKER: No further questions. 2 THE COURT: The witness is excused. You may step 3 down. 4 MR. BARKOW: Your Honor, at this point we request 5 permission for Mr. Forkner to come forward and -- if we could, 6 to play the portion -- may I have a moment? 7 THE COURT: Yes. 8 (Off the record) 9 MR. TIGAR: And with regard to the pending offer, it's 10 my understanding we'll discuss it at the break. 11 THE COURT: All right. 12 MR. BARKOW: Your Honor, at this point we request 13 permission to play the portion of Government Exhibit 1730, 14 which is in evidence, that corresponds with the first 11 pages 15 of Government Exhibit 1730T, which has already been read to the 16 jury in its entirety. And we will scroll the transcript in 17 front of the jurors as the Exhibit 1730 is played. 18 THE COURT: All right. 19 MR. BARKOW: We would ask the jurors to put their 20 headphones on. 21 THE COURT: Are you going to play the first part of 22 the call of the recording? 23 MR. BARKOW: We'll start at the beginning of the 24 recording, your Honor, and play as much of it that corresponds 25 with Pages 1 through 11 of the transcript. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5229 492LSAT2 Sabek - cross 1 THE COURT: All right. 2 MR. TIGAR: May I confer with Mr. Barkow? 3 THE COURT: Yes. 4 (Off the record) 5 MR. BARKOW: May we publish the transcript on the 6 screen, your Honor? 7 THE COURT: Ladies and gentlemen, I've already given 8 you the instructions with respect to transcripts, and remember, 9 to the extent that you are listening to an English language 10 recording, the transcript is an aid to your listening to that 11 recording. 12 And to the extent that the recording itself reflects 13 Arabic, the transcript is in evidence as reflecting the expert 14 testimony of the translator. And I've given you all of the 15 instructions on transcripts, and you should apply those here. 16 MR. BARKOW: Your Honor, if I may, after conferring 17 with Mr. Tigar, I just wanted to remind the Court and the 18 jurors that this is a recording of a telephone call on 19 June 23rd of 2000 that began at 10:41 a.m. The participants 20 are listed: Omar Abdel Rahman, Lynne Stewart, Mohammed Yousry, 21 Duncan and an AT&T recorded message. 22 THE COURT: All right. Ladies and gentlemen, you can 23 put on your headphones, dot pointing out. 24 MR. BARKOW: May we proceed, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5230 492LSAT2 Sabek - cross 1 (At this point, Government Exhibits 1730, 1730T, in 2 evidence, were displayed and played for the jury) 3 MR. MORVILLO: Excuse me, your Honor, there's a 4 problem with a headphone. 5 THE COURT: Yes, of course. 6 MR. BARKOW: Your Honor, may I exchange these? 7 THE COURT: Yes. 8 (Pause) 9 MR. BARKOW: Your Honor, may we proceed from the point 10 where we stopped? 11 THE COURT: Yes. 12 (At this point, Government Exhibits 1730, 1730T, in 13 evidence, continuing, were displayed and played for the jury) 14 THE COURT: All right. Ladies and gentlemen, you can 15 take your headphones off. Is now a convenient time for a mid 16 morning break? 17 MR. MORVILLO: That will be fine, your Honor. We're 18 going to start reading some phone call transcripts. 19 THE COURT: All right. Ladies and gentlemen, we'll 20 break for the mid morning break. Please remember to turn your 21 headsets off. Have a good break. I'll see you soon. All 22 rise, please. 23 (The jury exits the courtroom) 24 THE COURT: All right. Please be seated, all. 25 /// SOUTHERN DISTRICT REPORTERS (212) 805-0300 5231 492LSAT2 Sabek - cross 1 (In open court; jury not present) 2 I reserved on the exhibits, but I already ruled on 561 3 and 561T. So unless I'm missing something, 561 and 561T are 4 admitted, but redacted; and subject to the limiting 5 instruction, which I already explained. 6 MS. BAKER: Your Honor, as to the logistics of that, I 7 propose that we prepare a 561TR, which would be a redacted 8 translation, and either the parties can stipulate or the Court 9 can just instruct that that is identical to the "T" or to 10 portions of the "T" exhibit that was authenticated by the 11 witness. 12 And I would request that we not be required to redact 13 the Arabic, given that the jurors can't read it in its original 14 Arabic anyway. To them, it's just, visually, a piece of 15 newspaper. 16 THE COURT: No objections to that, I take it? 17 MR. FALLICK: No, your Honor. 18 THE COURT: Okay. As to 538T, no objections? 19 MR. TIGAR: No objections to the translation, your 20 Honor. The relevance, 403, were the subject of pretrial 21 litigation that your Honor resolved against our positions. We 22 of course maintain those objections. 23 THE COURT: All right. 24 MS. BAKER: And, your Honor, just so that the record 25 is clear as to the actual mechanics, at the appropriate point SOUTHERN DISTRICT REPORTERS (212) 805-0300 5232 492LSAT2 Sabek - cross 1 in the chronology, which we expect to be at some point today, 2 the government will offer the videotape itself which is 538, 3 based on the stipulation that was previously signed about which 4 there was previously litigation that your Honor already ruled 5 on. That stipulation is 538S. So perhaps it makes the most 6 sense for the government to renew its offer of 538T and for 7 your Honor to rule on that offer in the presence of the jury at 8 that time when we present the stipulation and offer the 9 videotape itself. 10 THE COURT: All right. My only question is -- I don't 11 have my ruling on 538 in front of me. And my only question is 12 whether there were any limiting instructions with respect to 13 538. 14 MS. BAKER: There were, your Honor. The government 15 had agreed in the earlier litigation on 538 to a limiting 16 instruction in connection with that tape. And we will make 17 sure that we have it here so that your Honor will be able to 18 give the appropriate instruction. 19 THE COURT: Okay. That's fine. I can go back over 20 all of my notes or the transcript for the prior orders, but it 21 would be useful if the parties could give that to me. Okay? 22 And that leads us then to 560. 23 MR. TIGAR: Yes, your Honor. 24 THE COURT: Could I just -- I believe there's a -- I 25 don't think I have a full set of all of the exhibits. The SOUTHERN DISTRICT REPORTERS (212) 805-0300 5233 492LSAT2 Sabek - cross 1 original exhibit notebook I had went up to about 404. And I 2 don't think I've been given an exhibit notebook beyond that. 3 So when you say it's in my book of exhibits, I don't think I 4 have a book of exhibits that includes that. 5 MS. BAKER: Your Honor, we will correct that. 6 THE COURT: So do you want to pass 560 up to me now? 7 MS. BAKER: I handed it to Mr. Fletcher when we were 8 discussing it earlier this morning, 560 and 560T. 9 THE COURT: Thank you. 10 MR. TIGAR: May I make some very brief remarks? 11 THE COURT: Sure. 12 MR. TIGAR: As I understand it, the government relies 13 on 1171X, pages 12 and 13, where Mr. Taha is talking to Abu 14 Bakr, and Taha says, "Have you read Al-Hayat or Asharq Al-Awsat 15 or any of those?" Then they talk again at 13. 16 "We don't get Al-Hayat," Abu Bakr says. And then Abu 17 Bakr says, "But we get Asharq Al-Awsat, we get it three or four 18 days late." And then Taha says, at Line 1011, "If it is around 19 three to four days, you might find it there. There are things 20 that are related to me." 21 That looks to me like a reference to Asharq Al-Awsat, 22 not Al-Hayat. But regardless of whether that's so, the 23 language, "There are things that relate to me," falls far 24 short, in our view, of an adoption. Because when we turn to 25 560T, the first three paragraphs don't relate to Mr. Taha at SOUTHERN DISTRICT REPORTERS (212) 805-0300 5234 492LSAT2 Sabek - cross 1 all. Then, when we turn to Page 2, it says on another 2 matter -- and that's why I asked Miss Sabek, Agence France 3 Presse, which is what APF is, then it refers to Taha. Then the 4 next paragraph, it refers to a report received by, quote, 5 French press, which is Agence France Presse. 6 So we have Al-Hayat, which is not the newspaper to 7 which Taha is referring, picking up an article from Agence 8 France Presse, which, for all we know, was published in French, 9 which is the language they communicate in, and then translated 10 into Arabic, that purports to contain hearsay, not adopted, 11 from Mr. Taha. 12 And then the final paragraph of Page 2 goes on to 13 describe Mr. Taha's position and how he signs some statement 14 and doubts about his role and so on, restrictive valuative. 15 And then on the next page goes into a political analysis of IG 16 politics. 17 Now, I understand it's offered with respect to this 18 Count 2 conspiracy, but, you know, we do have standing to 19 object to it. Miss Stewart doesn't speak any of the many 20 languages through which this hearsay was filtered, so we can 21 understand that attenuation. But your Honor, I don't think it 22 makes the cut as far as adoption is concerned. 23 MS. BAKER: Your Honor, the government has no 24 objection to redacting the two paragraphs, or perhaps it's more 25 properly viewed as three paragraphs, on the first page of SOUTHERN DISTRICT REPORTERS (212) 805-0300 5235 492LSAT2 Sabek - cross 1 Government Exhibit 560T, which, Mr. Tigar is correct, do not 2 relate directly to Taha. 3 But Mr. Tigar's characterization of what Mr. Taha says 4 in Government Exhibit 1171X is simply not a fair one. Taha is 5 offering to his coconspirator, recommending to his 6 coconspirator, that the coconspirator read either/or both 7 Asharq Al-Awsat and/or Al-Hayat. The coconspirator basically 8 says that he doesn't happen to have access to Al-Hayat, only to 9 the other newspaper, but Taha is the one offering them, and 10 thereby endorsing the contents of the articles in both of them. 11 And as to the fact that the content of the Al-Hayat 12 article that relates to Taha may have come by way of Agence 13 France Presse, the government respectfully submits that that's 14 irrelevant in light of the fact that Taha is endorsing it by 15 recommending it to his coconspirator. Wherever it came from, 16 Taha is effectively saying, This is an accurate reflection of 17 what I have said in the statement. 18 THE COURT: I do want to read the article and consider 19 it, and it's unlikely I'm going to be able to do it at the 20 break or perhaps even at the lunchtime. I'll take the 21 arguments, but where -- where do you say that in 1171 Taha 22 adopts the Al-Hayat article as either his statement or 23 something that he is in such agreement with that it could be 24 considered to be adopted? 25 MS. BAKER: Your Honor, there's the portion that SOUTHERN DISTRICT REPORTERS (212) 805-0300 5236 492LSAT2 Sabek - cross 1 begins on Page 12 at Lines 17 and 18. And what happens is, 2 Taha and Abu Bakr have been discussing another subject, and 3 then Taha brings up the articles in the newspaper by saying, 4 Have you read Al-Hayat, or -- and then he offers, you know, 5 other alternatives. But he is the one who raises Al-Hayat in 6 the first place, because of its content relating to him. 7 And then he goes on to say, on Page 13 at Lines 10 to 8 11, that, three or four days earlier, "there are things that 9 are related to me." And then Abu Bakr agrees that he's going 10 to look for it in the one paper that he has access to, which is 11 the other paper. 12 But the very fact that Taha is the one who brings it 13 up, essentially out of the blue, and brings it up by referring 14 first to Al-Hayat, it is the government's view that that 15 essentially is him offering that content to his coconspirator 16 as an accurate publication of a statement that he has made. 17 Otherwise, there's simply not a logical reason why he would be 18 bringing it up and asking his coconspirator if the 19 coconspirator has access to it. 20 THE COURT: Essentially -- well, I have Pages 12 and 21 13. All right. Why don't we take the break? 22 (Morning recess) 23 (In open court; jury not present) 24 THE COURT: For planning purposes, I asked for the 25 lunch to be brought to the jurors at 12:30. We'll break until SOUTHERN DISTRICT REPORTERS (212) 805-0300 5237 492LSAT2 Sabek - cross 1 1:30 and then we'll break for the day at 2:30. So that -- 2 making every effort to assure that I accommodate the schedule 3 of the jurors. 4 I dealt with the issues except with respect to 560. I 5 have the arguments of the parties. I'll consider the arguments 6 of the parties. I'm not going to rule today. The parties can 7 give me any letters they wish on the issue brief, any cases 8 they wish to direct my attention to, by tomorrow. 9 All right. Are we ready to bring in the jury? 10 MR. MORVILLO: Yes, your Honor. 11 MR. TIGAR: The limiting instruction, your Honor, 12 appears on 538. Is in your Honor's order of June 11th, 2004, 13 and at Pages 11 and 12, where your Honor discusses what the 14 limits are. 15 THE COURT: As -- the rationale I set out on Page 12 16 is exactly the same rationale that I've given when Mr. Barkow 17 has objected to the instruction with respect to hearsay as it 18 relates to Count 2. So the instructions have been consistent 19 for a very long period of time. 20 The limiting instruction that I refer to here is that 21 statements cannot be received, cannot be considered, for the 22 truth of any matters asserted, with respect to Ms. Stewart and 23 Mr. Yousry. And, if Mr. Sattar wants, and with respect to 24 Mr. Sattar, are admitted subject to connection, with respect to 25 the truth of any matters asserted. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5238 492LSAT2 Sabek - cross 1 MR. TIGAR: As to Ms. Stewart, your Honor, we do ask 2 the Court to give that instruction. 3 MR. PAUL: Your Honor, we would ask that for 4 Mr. Sattar as well. 5 THE COURT: Okay. All right. All right. Okay. 6 MR. TIGAR: May I have just a moment, your Honor? 7 THE COURT: Sure. 8 (Off the record) 9 MR. MORVILLO: Your Honor, just so we're clear, we 10 probably won't get to that today, in the chronology of our 11 evidence, given the schedule your Honor has just announced. I 12 just wanted to make that clear. 13 THE COURT: Okay. I'm sorry to take so much time at 14 the break. Let's call in the jury. 15 MR. PAUL: Your Honor, I'm sorry, before the jury 16 comes, in addition to the limiting instruction, I would ask 17 your Honor to amend that and include the fact and instruct the 18 jury that Osama bin Laden is not considered to be a 19 coconspirator in this indictment, unindicted or otherwise. 20 MS. BAKER: Your Honor, perhaps we could address this 21 some other time, given that we're not going to get to this 22 today. I don't think the government is prepared to concede 23 that fact. 24 THE COURT: All right. Let's take that up later. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS (212) 805-0300 5239 4925SAT3 1 (Jury present) 2 THE COURT: Please, be seated all. 3 Ladies and gentlemen, we are going to sit today until 4 12:30 when your lunch is brought in, and then I hope to resume 5 at 1:30, and then to sit until 2:30 today, and then to break 6 early today so that we can accommodate any plans that you may 7 have. 8 Okay. 9 MR. MORVILLO: At this point, your Honor, the 10 government would request permission to read to the jury and 11 display to the jury, Government Exhibit 1162X, in evidence. 12 THE COURT: All right. 13 MR. MORVILLO: May Mr. Dember take the witness stand? 14 THE COURT: Yes. 15 MR. MORVILLO: Sorry, and Mr. Forkner, if he may come 16 forward? 17 THE COURT: Yes. 18 MR. MORVILLO: Your Honor, for the record, Government 19 Exhibit 1162X is a telephone call recorded on August 5th of 20 2000, at 3:27 p.m. 21 Mr. Forkner will read the attributions to Ahmed Abdel 22 Sattar, I will read the attributions to Rifa't Ahmad Taha Musa 23 and Mr. Dember will read the attributions to Salah Hashim. 24 THE COURT: All right. 25 (At this point, Government Exhibit 1162X, in evidence, SOUTHERN DISTRICT REPORTERS (212) 805-0300 5240 4925SAT3 1 was displayed and read to the jury) 2 MR. MORVILLO: At this time, your Honor, the 3 government would request permission to read to the jury and 4 display to the jury, Government Exhibit 1163X, in evidence. 5 THE COURT: All right. 6 MR. MORVILLO: And for the record, your Honor, this is 7 a call on August 5th of 2000 at 3:36 p.m. The excerpted 8 transcript does not have any attributions to Ahmed Abdel 9 Sattar. I will read the attributions to Rifa't Ahmad Taha Musa 10 and Mr. Dember will read the attributions to Salah Hashim. 11 THE COURT: All right. 12 (At this point, Government Exhibit 1163X, in evidence, 13 was displayed and read to the jury) 14 THE COURT: All right. 15 MR. BARKOW: Your Honor, at this point the government 16 requests permission to publish to the jury and read to the 17 jury, Government Exhibit 1164X, which is in evidence. 18 THE COURT: All right. 19 MR. BARKOW: Your Honor, this is a call on August 14th 20 of 2000 at 3:52 p.m. Mr. Forkner will read the lines of Ahmed 21 Abdel Sattar, and I will read the lines of the unidentified 22 male and Ahmed Al-Sherif. 23 May we proceed? 24 THE COURT: Yes. 25 (At this point, Government Exhibit 1164X, in evidence, SOUTHERN DISTRICT REPORTERS (212) 805-0300 5241 4925SAT3 1 was displayed and read to the jury) 2 MR. BARKOW: Your Honor, it is 12:30. 3 THE COURT: I am waiting for Mr. Fletcher to tell me 4 that the lunch is here. 5 MR. BARKOW: Should we just continue? 6 THE COURT: Yes. 7 (At this point, Government Exhibit 1164, in evidence, 8 was further displayed and read to the jury). 9 THE COURT: All right. Why don't we continue to 10 proceed until Mr. Fletcher tells me. 11 MS. BAKER: Your Honor, at this time the government 12 offers the stipulation marked as Government Exhibit 2083S, asks 13 that it be received into evidence, and that we be permitted to 14 display and read it to the jury. 15 THE COURT: All right. Government Exhibit 2083S, 16 received in evidence. 17 MS. BAKER: Actually, your Honor, before we continue, 18 we will not need Mr. Forkner again before the lunch break; may 19 he be excused? 20 THE COURT: Yes. You may step down. 21 (Witness steps down) 22 MS. BAKER: Government Exhibit 2083S, states, as 23 follows: The parties hereby stipulate and agree that 24 Government Exhibit 2083 and 2083A were originally found during 25 the Sattar search as one, continuous thermal facsimile SOUTHERN DISTRICT REPORTERS (212) 805-0300 5242 4925SAT3 1 document. The parties further stipulate and agree that 2 Government Exhibit 2083A was created by cutting one page off of 3 the original Government Exhibit 2083 and excerpting that page 4 according to an agreement among all of the parties. Government 5 Exhibit 2083A is excerpted from but otherwise identical to the 6 original page cut off of Government Exhibit 2083. 7 And that is agreed to and stipulated and signed by all 8 parties and their counsel. 9 THE COURT: All right. 10 MS. BAKER: Your Honor, based on that stipulation and 11 testimony previously given, we offer Government Exhibit 2083 12 and 2083A. 13 THE COURT: All right, no objection. Government's 14 Exhibits 2083 and 2083A received in evidence. 15 (Government's Exhibits 2083 and 2083A received in 16 evidence) 17 MS. BAKER: Your Honor, I would ask permission to 18 briefly display them for the jury using the ELMO but we would 19 like to present 2083 and 2083A by reading them, but the 20 original is so faint I would take it back off the Elmo to read 21 to them because we just couldn't make good enough copies. 22 THE COURT: Okay. 23 MS. BAKER: (Displaying) That is Government Exhibit 24 2083. 25 (Displaying) That is the front of 2083A. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5243 4925SAT3 1 And, as described in the stipulation, I will hold it 2 up, your Honor, it is one long continuous piece of thermal fax 3 paper. 4 THE COURT: Okay. 5 MS. BAKER: Reading from it now beginning with 6 Government Exhibit 2083 -- 7 THE COURT: Before you start reading it, this would be 8 a convenient time for us to take the luncheon break and you may 9 pick up there right after lunch. 10 Ladies and gentlemen, we will break for lunch until 11 about 1:35. Please remember my continuing instructions not to 12 talk about the case at all and to keep an open mind until you 13 have heard all of the evidence and I have instructed you on the 14 law and you have gone to the jury room to begin your 15 deliberations. 16 Have a good lunch. 17 All rise, please. 18 (Continued on next page) 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5244 4925SAT3 1 (Jury not present) 2 MR. TIGAR: Does the government propose to read this 3 entire exhibit to the jury? 4 MS. BAKER: Yes, your Honor. 5 MR. TIGAR: It's simply a copy of what's already in 6 evidence as Government Exhibit 9, which when Mr. Fitzgerald was 7 here, I believe was published to the jury. It is hearsay and I 8 see no point in publishing it to the jury twice. It is simply 9 what Mr. Fitzgerald said to Ms. Stewart. It contains a number 10 of assertions that are Mr. Fitzgerald's hearsay opinion about 11 the impact of the press conference and I object to it being 12 published a second time. 13 I will happily agree that it is identical to the 14 exhibit that Mr. Fitzgerald sponsored. 15 THE COURT: Ms. Baker? 16 MS. BAKER: Your Honor, the exhibit has been received 17 in evidence and that entitles the government -- sorry -- and 18 the government respectfully requests to publish it to the jury 19 in the manner that the government chooses. Because the 20 original is so difficult to read we would ask to be able to 21 read it to the jury. 22 When this exhibit was, or the equivalent exhibit was 23 previously presented it was quite some time ago, there was an 24 adjournment in the middle of the trial since then. This is 25 content that is not fresh in the minds of the jury and when it SOUTHERN DISTRICT REPORTERS (212) 805-0300 5245 4925SAT3 1 was previously presented it was in the context of 2 Mr. Fitzgerald having sent it to Ms. Stewart. It is now being 3 presented in the context of Ms. Stewart having faxed it to 4 Mr. Sattar, thus it was found in the search of Mr. Sattar's 5 residence. 6 So, in light of its new context, because of the 7 passage of time and in light of the fact that it is in 8 evidence, we do request permission to read it. 9 MR. TIGAR: Then, your Honor, we ask for limiting 10 instruction. It is not being asserted for the truth of 11 anything in it but simply for the fact that it was sent to 12 Mr. Sattar because in fact it contains things, the truth of 13 which, we have disputed. 14 MS. BAKER: Your Honor, given that it was faxed by 15 Ms. Stewart to Mr. Sattar, we don't object to an instruction 16 that it is not for the truth but it is for its effect on both 17 the sending and the receiving party. 18 THE COURT: Well then, it is sufficient -- the 19 instruction is sufficient that it is not being received for the 20 truth of anything that is said and it is up to the parties to 21 argue what both parties see as the significance for the 22 receiver and for the recipient -- unless the parties want me to 23 give a further instruction about the various reasons that it 24 can be used. 25 The limiting instruction is it is not received for the SOUTHERN DISTRICT REPORTERS (212) 805-0300 5246 4925SAT3 1 truth and if the parties want me to give a further instruction 2 about the possible uses for which it can be used, I will give a 3 further instruction. 4 I don't think that's necessary, unless the parties ask 5 for it. 6 MR. TIGAR: The -- sorry. 7 MS. BAKER: Your Honor, the government doesn't think 8 the additional instruction is necessary. I did just want to 9 make one additional clarification. 10 2083, which is the redacted first page, is an 11 admission by Ms. Stewart, it is a statement by Ms. Stewart 12 herself, it is her covering memorandum. 13 So, 2083 should be admissible for its truth because it 14 is Ms. Stewart's statement. The attachment, which is marked 15 2083A, which is the remainder of the document, would be subject 16 to the limiting instruction. 17 MR. TIGAR: Well, your Honor, I have only asked for an 18 instruction with respect to 2083A. I haven't asked for any 19 instruction with respect to 2083 and I don't think any is 20 appropriate. 21 The one your Honor proposes, not for the truth, is all 22 that we are asking for. 23 THE COURT: Okay. 24 MR. BARKOW: Your Honor, just so the Court is aware, 25 after Ms. Baker presents this exhibit, we are going to seek to SOUTHERN DISTRICT REPORTERS (212) 805-0300 5247 4925SAT3 1 present Government's Exhibits 2022 and 2025, both of which are 2 in evidence. They are also faxes from Ms. Stewart that were 3 found in the Sattar search, they are newspaper articles, and 4 they would appropriately get the newspaper articles instruction 5 that they are not offered for the truth. 6 THE COURT: Okay. Please be back in half an hour. 7 See you then. 8 (Luncheon recess) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5248 492LSAT4 1 A F T E R N O O N S E S S I O N 2 1:30 p.m. 3 (In open court; jury not present) 4 MR. TIGAR: I looked at the government exhibits over 5 the lunch recess, 2022 and 2025 in evidence. Those are thermal 6 faxes sent from Ms. Stewart's offices to Mr. Sattar, apparently 7 on the 28th of August, 2000. They are newspaper articles and 8 they are the newspaper articles that came attached to 9 Mr. Fitzgerald's August 3rd letter to Miss Stewart that is in 10 evidence as Government 9. I don't know if the government 11 intends fully to publish 2022 and 2025, which were faxed 12 contemporaneously with the letters to which they came attached, 13 but we simply wish to avoid some inference that Miss Stewart 14 thought those articles were something in which she was 15 interested as opposed to simply passing on things that 16 Mr. Fitzgerald had said were things that concerned him. 17 MS. BAKER: Your Honor, the government submits that 18 that's a matter for argument by Mr. Tigar in his summation. 19 The fax lines which are on each of the documents do show that 20 they were all faxed on the same date at around the same time. 21 And if Mr. Tigar wishes to make that argument that he just 22 articulated from that data, he is free to do so. 23 MR. TIGAR: Your Honor, it's not an argument, your 24 Honor. They are identical to government exhibit anybody. 25 That's not a question of argument (nine) that's a question of SOUTHERN DISTRICT REPORTERS (212) 805-0300 5249 492LSAT4 1 what the facts are. And I am simply seeking to head off what I 2 believe to be any unfair inference based on the policy of 3 Rule 106. 4 MS. BAKER: Your Honor, in fact, there was text on 5 Ms. Stewart's covering memorandum which is now marked as 6 government Exhibit 2083 that arguably bore on this issue. But 7 because of issues raised by the defense, that text was 8 redacted. But again, this is a matter for argument and 9 Mr. Tigar can certainly point out that when you put together 10 2083, 2083A, 2022 and 2025 they are identical to government 11 Exhibit 9 and that Ms. Stewart was merely passing them along to 12 Mr. Sattar. 13 THE COURT: I agree with that. It's not -- it's for 14 the parties to argue whatever significance they find in the 15 documents. The redactions to 2083 were agreed to, whatever 16 they are, I don't know what they are -- by the parties. And 17 the faxes are what they are. 18 MR. TIGAR: Then I move, your Honor, under Rule 106 19 that if the 2083, 2083A should be open to the jury, the 2022 20 and 2025 be published simultaneously. 21 MS. BAKER: That is, in fact, the government's 22 intention: To publish them all in the same manner and one 23 after the other. 24 THE COURT: All right. 25 MR. TIGAR: And it's agreed then that the fax lines SOUTHERN DISTRICT REPORTERS (212) 805-0300 5250 492LSAT4 1 date and time will be read? 2 MS. BAKER: Yes, the government intended to do that as 3 well. 4 THE COURT: Sure, okay. Let's bring in the jury. 5 (Jury enters the courtroom) 6 (In open court) 7 THE COURT: Please be seated, all. Good afternoon 8 ladies and gentlemen. 9 JURORS: Good afternoon. 10 THE COURT: It's good to see you all. All right, 11 Ms. Baker? 12 MS. BAKER: At this time, your Honor, the government 13 asks to display and read to the jury government exhibits 2083 14 and 2083A in evidence. 15 THE COURT: All right. Ladies and gentlemen, with 16 respect to government exhibits 20 exhibits a, the document is 17 (2083A) not being offered or received for the truth of any of 18 the matters asserted in the document. All right? You may 19 proceed. 20 MS. BAKER: Thank you, your Honor. Beginning with 21 Government Exhibit 2083, in the lower right-hand corner of the 22 page, upside down, are the words, as though printed by a fax 23 machine: "from Lynne," and the rest of the bottom edge of the 24 page is torn. 25 Returning to the top of the page with it right-side SOUTHERN DISTRICT REPORTERS (212) 805-0300 5251 492LSAT4 1 up, the letterhead says, Lynne F. Stewart, Attorney at Law, 2 351 Broadway, Third Floor, New York, New York 10015. 3 Tel. (212) 625-9696. Fax: (212) 625-3939. 4 (At this point, Government Exhibit 2083, in evidence, 5 was read and displayed to the jury) 6 MS. BAKER: Turning now to Government Exhibit 2083, 7 upside down at the bottom of the first page is a fax printout 8 that reads: From Lynne Stewart, Esq., Fax (212) 625-3939. 9 Aug. -- that's A-u-g, period -- 28, 2000. 05:26 p.m. 10 Turning back to the top of the page on the letterhead 11 of the U.S. Department of Justice, United States Attorney, 12 Southern District New York, August 3rd, 2000. Addressed to 13 Lynne Stewart, Esq. I believe it says 351 Broadway, Third 14 Floor, New York, New York 10014. 15 (At this point, Government Exhibit 2083A, in evidence, 16 was displayed and read to the jury). 17 MS. BAKER: Upside down at the bottom of this page is 18 again the fax machine printout. Fax Number (212) 625-3939, 19 August 28, 2000, 05:27 p.m. 20 Your Honor, if I might simply note that the remaining 21 pages of Government Exhibit 2083 each bear upside down at the 22 bottom of the page the same fax machine printout with times of 23 05:27 p.m. and 05:28 p.m. 24 (At this point, Government Exhibit 2083A, in evidence, 25 continuing, was displayed and read to the jury) SOUTHERN DISTRICT REPORTERS (212) 805-0300 5252 492LSAT4 1 MS. BAKER: Then there is a blank signature line for 2 Lynne Stewart, Esq., dated August 28, 2000, New York, New York. 3 Your Honor, at this time the government asks 4 permission to display to the jury and read government 5 Exhibit 2022, which is in evidence. 6 THE COURT: All right. With respect, ladies and 7 gentlemen, to government exhibits 2022 and 2025, I understand 8 that these are newspaper articles and I've previously given you 9 instructions with respect to newspaper articles. The newspaper 10 articles are received not for the truth of anything that's said 11 in the newspaper articles, but rather for the -- for the effect 12 on those who read the newspaper articles. Because the 13 newspaper articles contain hearsay, as I've explained. The 14 newspaper articles reflect what the reporters say about what -- 15 about various things. And reporters may or may not get it 16 right about what was said, or done. So these newspaper 17 articles are not received for the truth of anything that was 18 said in those newspaper articles. 19 All right. 20 MS. BAKER: May I proceed? 21 THE COURT: Yes. 22 MS. BAKER: On the first page of government 23 Exhibit 2022, upside down and across the bottom of the page is 24 the fax machine printout which reads: From: Lynne Stewart 25 Esq., fax. no. (212) 625-3939, Aug. 28, 2000, 05:33 p.m. And SOUTHERN DISTRICT REPORTERS (212) 805-0300 5253 492LSAT4 1 on each of the subsequent pages of Government Exhibit 2022, 2 there is essentially the same fax machine printout with the 3 time on the last page, the fifth page, being -- the date and 4 time being Aug. 28, 2000 and 05:36 p.m. 5 Turning to the top of the page of Government 6 Exhibit 2022, your Honor, if I might skip the header at the top 7 and begin with the name of the publication. 8 (At this point, Government Exhibit 2022, in evidence, 9 was displayed and read to the jury) 10 MS. BAKER: Your Honor, the pages, the fax headers 11 indicated on Page 4, appear to be -- well, Page 3 does not 12 contain any substantive content. I would ask permission to 13 skip Page 3 and move on to Page 4. 14 MR. TIGAR: We have no objection, your Honor. 15 THE COURT: All right. 16 (At this point, Government Exhibit 2022, in evidence, 17 continuing, was displayed and read to the jury) 18 MS. BAKER: That completes Government Exhibit 2022. 19 Turning now to Government Exhibit 2025, I would ask 20 permission to read the pages in order based on the fax machine 21 printout, which I will read first, and that is with the page 22 bearing the Government exhibit sticker 2025 as the last page. 23 It's the reverse order of the way the pages were photocopied. 24 THE COURT: All right. 25 Again, ladies and gentlemen, I've given you an SOUTHERN DISTRICT REPORTERS (212) 805-0300 5254 492LSAT4 1 instruction with respect to newspaper articles, and you should 2 apply that instruction here. 3 MS. BAKER: And, your Honor, this document begins with 4 a page that is the middle of the article, not the beginning of 5 a news article. So the -- upside down on the bottom of the 6 first page is, once again, a fax machine printout. It reads, 7 from Lynne Stewart, Esquire Fax No. (212) 625-3939, 8 August 28th, 2000, 05:39 p.m. This is the page that says 9 Page 1. 10 Each of the subsequent pages bears the same fax 11 machine printout where -- the only difference being the times. 12 The time on the last page is 05:42, and that is on a page where 13 the fax machine printed out Page 5, which is a page the 14 government has the sticker on. 15 THE COURT: All right. 16 MS. BAKER: Turning to the content of the page with 17 the fax machine printout, Page 1 is, as I said, a continued 18 portion of the article. And the only paragraph of that with 19 text says: 20 (At this point, Government Exhibit 2025, in evidence, 21 was displayed and read to the jury). 22 MS. BAKER: Turning to the next page, skipping the 23 header at the top. 24 (At this point, Government Exhibit 2025, in evidence, 25 continuing, was displayed and read to the jury) SOUTHERN DISTRICT REPORTERS (212) 805-0300 5255 492LSAT4 1 MS. BAKER: That completes Government Exhibit 2025. 2 THE COURT: All right. We have about 10 minutes. 3 MR. MORVILLO: Your Honor, at this time the government 4 would like permission to read Government Exhibit 1165X in 5 evidence. 6 THE COURT: All right. 7 MR. MORVILLO: And Government Exhibit 1166X in 8 evidence. The reason I -- I think there's an appropriate 9 limiting instruction that applies to these calls as opposed to 10 some of the other calls. We would respectfully ask the court 11 to give those. 12 THE COURT: We'll break for the day so I can consult 13 with the parties. 14 Ladies and gentlemen, we'll break now for the day. 15 Please, please, remember my continuing instructions. We're 16 breaking for a long weekend. We're not sitting on Monday, 17 Labor Day. So there's more of a break than usual. I'd ask you 18 to follow all of my instructions. I repeat them with all of 19 the force that my words can convey: 20 Please, don't talk about this case at all. Don't talk 21 about it among your selves; don't talk bit when you go to the 22 jury room; don't talk about it when you're in transportation; 23 don't talk about it when you arrive in the morning. Don't talk 24 about the case among your selves. 25 Don't talk about the case with anyone when you go home SOUTHERN DISTRICT REPORTERS (212) 805-0300 5256 492LSAT4 1 over this long weekend, and obviously continuing through the 2 trial. Please, don't look at, listening to anything to do with 3 the case. If you should see or hear something inadvertently, 4 simply turn away. 5 Always remember to keep an open mind until you've 6 heard all have the evidence, I've instructed you on the law, 7 you've gone to the jury room to begin your deliberations. 8 Fairness and justice requires you to do that. 9 With that, I wish you a very good weekend, a good 10 holiday. And I look forward to seeing you next Tuesday morning 11 at 9:30. 12 Good afternoon. 13 (Jury exits the courtroom) 14 (In open court; jury not present) 15 THE COURT: I didn't want to broach 1165 and 1166 16 because I wasn't clear what the limiting instruction was, and I 17 didn't want to talk about it without talking to the parties. 18 So. 19 MR. MORVILLO: I didn't mean to ambush you, your 20 Honor. It would be the same limiting instruction that your 21 Honor has given before with respect to calls that relate to the 22 Count 2 conspiracy, and. 23 THE COURT: I'd have to go back and check the only 24 instruction then these transcripts were offered solely with 25 respect to Counts 2 and 3? SOUTHERN DISTRICT REPORTERS (212) 805-0300 5257 492LSAT4 1 MR. MORVILLO: Your Honor, I don't remember the 2 precise wording of the instruction, but that's the idea. We 3 are offering these for Count 2 and 3, as far as the truth of 4 what's in the statements. In other words, these are offered as 5 coconspirator statements with respect to the Count 2 6 conspiracy. Obviously -- go to stated of mind as one, two and 7 three. But I don't have any instructions here to cite. I'll 8 try to get them. 9 MR. MORVILLO: Your Honor there are actually going to 10 be a number of calls that fall within this category coming up 11 over the remainder of the case. I could submit a letter to the 12 Court later this afternoon saying which calls this instruction 13 will be appropriate with respect to, and I could include in 14 that letter the limiting instruction your Honor has previously 15 given. 16 THE COURT: All right. 17 MR. TIGAR: Does the government have a position on the 18 Exhibit 535 matter that we discussed before -- I'm sorry 538, 19 your Honor. 20 MS. BAKER: I assume that Mr. Tigar means the request 21 that Mr. Sattar's lawyers made earlier for a limiting 22 instruction regarding bin Laden. And if that is the issue, 23 then the government's position is that such an instruction 24 would not be appropriate. It is the government's position that 25 by virtue of their statements contained in the videotape, which SOUTHERN DISTRICT REPORTERS (212) 805-0300 5258 492LSAT4 1 is government Exhibit 538, as translated in government 2 Exhibit 538T, that the various speakers at the conference to 3 free Sheikh Omar Abdel Rahman, which includes bin Laden, joined 4 in the Count 2 conspiracy, which is a conspiracy to kill or 5 kidnap, one of the motives of which was to obtain the release 6 of Abdel Rahman from jail in the United States. And the things 7 that bin Laden and the others say at the conference made clear 8 that they are joining in the conspiracy for that purpose. 9 Now, I do want to be clear: The government is not at 10 anytime in the course of this trial, certainly not in its 11 summations, going to argue anything to the jury about other 12 conduct by bin Laden or seek to have the jury think anything 13 about any of these defendants having any connection to any 14 other conduct by bin Laden. But on the other hand, because 15 these statements themselves evidence the participation of 16 bin Laden and the others in this charged Count 2 conspiracy, we 17 don't believe that the type of limiting instruction sought by 18 Mr. Sattar's counsel would be appropriate. 19 THE COURT: Isn't it academic because the only -- the 20 government's not going to argue about any other conduct of 21 bin Laden, any other activities of bin Laden, and with respect 22 to the statements in the course of the videotape, are the -- do 23 the statements of bin Laden have -- are they assertions for 24 which any truthful content is sought? Or are they statements 25 which are significant for the fact that they're being said? In SOUTHERN DISTRICT REPORTERS (212) 805-0300 5259 492LSAT4 1 other words, does it make any difference whether there is an 2 assertion that bin Laden is or is not a coconspirator? That 3 usually has only if the statements are being offered for the 4 truth of something that's said, right? 5 MS. BAKER: Your Honor, the statements I believe could 6 be characterized as a mixture of factual assertions and 7 exhortations to act. What bin Laden says -- and I'm quoting 8 now from Page 3 of Government Exhibit 538T -- is, "And our 9 brothers who are in prisons everywhere in all the United 10 States, Sheikh Omar Abdel Rahman --" and then he names some 11 other names, and he talks a little bit about those other people 12 and what they were attempting to do. 13 And then he turns to the exhortation. So the 14 beginning part is factual assertions. And then his exhortation 15 essentially is continuing on Page 3: "We pledge to God 16 almighty on this blessed night to do all we can to support his 17 religion, to establish the Islamic laws in all Islamic land, to 18 expel the Jews and the Christians from the sacred places, and 19 to strive to free our religious leaders from America, Egypt and 20 Riyad and from all the lands of Islam." 21 And then he invokes God and the portion of him 22 speaking hymns. So it's a brief portion which, as I say, is 23 factual at the beginning, and then exhorting his followers. 24 THE COURT: The limiting instruction which I had said 25 that I would give and the parties asked me to give at this SOUTHERN DISTRICT REPORTERS (212) 805-0300 5260 492LSAT4 1 point with respect to 538 is the statements in the document 2 cannot be considered for the truth of any matters asserted with 3 respect to Ms. Stewart and Mr. Yousry. And with respect to 4 Mr. Sattar, are admitted subject to connection with respect to 5 the truth of any matters asserted. 6 That instruction is plainly correct, and, after 7 listening to the dialogue, it's not clear to me that I should 8 do anything else. 9 MR. PAUL: Your Honor, here's the difficulty that I 10 have: We selected this jury, and in the process of selecting 11 this jury, we made it clear over and over and over again that 12 Osama bin Laden is not a person who's a conspirator in this 13 case. He's not a person -- maybe not in that language, but we 14 certainly put the minds of these jurors to rest in telling them 15 that Osama bin Laden is not someone that they should have to 16 consider in this case. He's not a participant. He's not 17 mentioned in this case. And clearly, for the government to say 18 that this political statement, which is exactly what this is, 19 and they're directing the part of Osama bin Laden to saying 20 that, we pledge to God almighty on this blessed night to do 21 what we can to support his religion -- it goes on to say that, 22 we want them freed from lands of America and elsewhere -- is 23 not adopting this conspiracy that these individuals are charged 24 with. There is no way that the government could argue that 25 there is evidence to infer by this language that he is a SOUTHERN DISTRICT REPORTERS (212) 805-0300 5261 492LSAT4 1 participant in the agreement of the conspiracy of this 2 indictment. 3 And therefore, I think it's appropriate, given what 4 this jury's going to look at, given how they were selected, 5 given the fact that we're talking about someone that we all 6 know very well, instills a great deal of emotion -- and it will 7 with this jury -- I think it's appropriate to tell this jury 8 that this individual is not a coconspirator in this case. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5262 4925SAT5 1 MS. BAKER: Your Honor, Mr. Paul's argument divorces 2 bin Laden's words from the context in which they are spoken. 3 And, his characterization of what was said to the jury during 4 jury selection is, in the recollection of government counsel, 5 not an accurate one. 6 Bin Laden says what he says. He refers specifically 7 to Abdel Rahman by name and then he talks about freeing our 8 religious leaders from America. He says all of that while 9 sitting together with Taha and Al-Zawahiri are under a banner 10 in Arabic which translates to something like Conference to Free 11 Omar Abdel Rahman. So, the words in the context in which he 12 says them are indicators of his joining in agreement to use 13 violence to obtain Abdel Rahman's release. 14 And because the government knew all along that it 15 would offer this evidence -- and we raised this evidence in our 16 pretrial motion in limine -- we were careful that during jury 17 selection the jury was not told anything as broad as bin Laden 18 has nothing to do with anything here. Rather, the jury was 19 told that this case has nothing to do with the events of 9/11. 20 And that is true and that comes back to what I said a few 21 minutes ago, which is that of course the government is not 22 going to argue that the charges here or any defendant here has 23 anything to do with any other conduct by bin Laden. 24 But, in light of bin Laden's specific words and the 25 context in which they were spoken, we believe that the relief SOUTHERN DISTRICT REPORTERS (212) 805-0300 5263 4925SAT5 1 that Mr. Paul is arguing for is overly broad and that the 2 instruction that your Honor proposed to give and has now 3 reiterated is sufficient and appropriate. 4 MR. TIGAR: Your Honor, may I address this issue on 5 behalf of Ms. Stewart? 6 At page 11 of your Honor's order of the 11th of June, 7 2004, your Honor said that, summarized the government's 8 contentions in their motion in limine. I don't have that 9 motion. 10 You said, Taha's conduct is alleged to be an overt act 11 in furtherance of the Count Two conspiracy. Taha's conduct. 12 And your Honor evaluated the evidence in terms of 13 Taha's statements and conduct being alleged to be in 14 furtherance of the conspiracy charged in Count Two. 15 So, the first issue here, your Honor, is what one 16 might call a bait and switch. That is, I know that your Honor 17 said no bill of particulars. We accept that. But, if indeed 18 the government is, upon review of the record, seen to have 19 obtained an admissibility decision based on a representation of 20 who was -- and by inference therefore who was not -- a member 21 of the conspiracy, then they're bound by that if it is in the 22 nature of a bill of particulars, unless they move on such 23 circumstances as are just under Rule 7F or whatever it is to 24 change it. 25 More important than that, your Honor, I certainly SOUTHERN DISTRICT REPORTERS (212) 805-0300 5264 4925SAT5 1 interpret, on behalf of Ms. Stewart, the voir dire that we did 2 in just the way Mr. Paul did. I don't think for a minute that 3 the proposition that Mr. Sattar conspired with Osama bin Laden 4 can be supported as a rational matter. 5 But, for Ms. Stewart to be tried together with a 6 conspiracy of which Mr. bin Laden is said to be a member is a 7 very, very different matter than, in my respectful submission, 8 we conducted the selection of this jury upon. 9 So, that is our concern. And perhaps we should think 10 about it over the weekend. But, among the remedies here, if 11 the government is going to take this position, would be to say, 12 you know, you had the 1998 statement. That came in on various 13 reasons and is outlined in this. Maybe the whole 2000 14 statement. If that's the inferences the government is going to 15 seek to draw really are beyond the realm that a limiting 16 instruction can cure and that 403 should come in and we just 17 keep the whole thing out. I am not by now suggesting that that 18 is exclusively the remedy that we would seek, nor am I 19 attempting to try to remember everything that was in the motion 20 in limine. 21 I flag the issues for your Honor. We will write the 22 Court about them. But, those are our concerns. 23 MS. BAKER: Your Honor, these issues have all been 24 thoroughly aired and all this is is the defense seeking to get 25 your Honor to readjust a well-considered ruling that your Honor SOUTHERN DISTRICT REPORTERS (212) 805-0300 5265 4925SAT5 1 issued quite some time ago. 2 Your Honor already considered the effect of bin 3 Laden's participation in this piece of evidence when your Honor 4 issued the previous ruling. And the government is simply 5 asking your Honor to adhere to that ruling. 6 Again, we are not going to make any additional 7 arguments relating to bin Laden. We are certainly not going to 8 argue anything about bin Laden conspiring with Ms. Stewart. 9 And your Honor's proposed instruction makes quite clear that 10 this evidence is not being admitted against Ms. Stewart. We 11 merely ask that without any further written briefing, that your 12 Honor adhere to the prior ruling and give the instruction that 13 you have now repeated. 14 THE COURT: Well, I'm not asking if the parties want 15 to give me anything. 16 My recollection of the voir dire is that if -- and you 17 can check this -- if any juror expressed concern over bin Laden 18 I gave a more extensive explanation and said that there might 19 be evidence with respect to bin Laden. 20 MS. BAKER: Indeed, if your Honor is interested, we 21 found one such example of that very line of questioning. Well, 22 we found four examples, but I could quote one of them to your 23 Honor if you would like but it is in fact very much the way 24 your Honor characterized; that your Honor did not say at all 25 that there was nothing do with bin Laden. In fact, in this one SOUTHERN DISTRICT REPORTERS (212) 805-0300 5266 4925SAT5 1 example, after the juror had raised bin Laden or some feelings 2 about bin Laden you said, There may be evidence in the case 3 about bin Laden in this case, and the question is would that -- 4 would your thoughts, feelings about that make it difficult for 5 you to be fair and impartial. 6 And this particular juror or potential juror answered, 7 No, that he or she would need to know what these defendants 8 were on trial for and would listen to the evidence. 9 And then your Honor followed up by asking, If there 10 were a connection with bin Laden, would that make it -- would 11 that interfere with your ability to assess the evidence or lack 12 of evidence. 13 And that particular juror or potential juror said, No. 14 So, that is typical of your Honor's question. 15 THE COURT: No, but there was also a more extensive 16 instruction initially if a juror said that there was -- 17 MS. BAKER: Yes, we have found that as well. 18 Your Honor said, for example, on this one occasion, 19 and this is at page 768 to 769 of the voir dire transcript, I 20 have told that you this case is not about 9/11, nor are none of 21 the defendants charged with anything to do with 911. There may 22 be evidence in the case which arises that does concern bin 23 Laden. If any such evidence arose, what you would have to do 24 is ask yourself in the same way as with any other evidence, you 25 would have to ask yourself, what is the evidence or lack of SOUTHERN DISTRICT REPORTERS (212) 805-0300 5267 4925SAT5 1 evidence? And, based upon the evidence or lack of evidence, 2 are the charges in the indictment proven beyond a reasonable 3 doubt? And, could you do that? 4 MR. PAUL: Judge, if I may? 5 I am a little confused at this point, okay, and the 6 reason I am is my understanding of the way this video statement 7 is coming in is because the government argued, initially, that 8 Taha and additionally the Sheikh's son, I believe, who is in 9 this video, are unindicted co-conspirators to this case. 10 Clearly they are not, I don't believe, arguing that 11 Osama bin Laden is an unindicted co-conspirator, because I 12 don't think that there is enough that that inference could be 13 made simply from this video. And if he is not an unindicted 14 co-conspirator, given who he is and in fact there is no 15 adoption by him placing himself at this video to have conspired 16 in the conspiracy charged in Count Two and Three, then the jury 17 should be told, in fact, that he is not a co-conspirator in 18 this case. 19 And that is my argument to the Court, that -- coupled 20 with the fact that the only time this jury has heard the name 21 Osama bin Laden is when we were in the process of selecting 22 them. And however way your Honor framed putting their minds at 23 ease and divorcing any emotional attachment they had to 9/11, 24 that, coupled with the fact that, clearly, Osama bin Laden is 25 not an unindicted co-conspirator by the government's own SOUTHERN DISTRICT REPORTERS (212) 805-0300 5268 4925SAT5 1 argument -- that's now how this video is coming in -- I think 2 it is appropriate that the jury be told that. And that is why 3 I think that the instruction should be amended to include that. 4 MS. BAKER: Your Honor, all I would add, I don't want 5 to keep repeating myself. I think the instruction that your 6 Honor proposes to give makes it essentially unnecessary for 7 your Honor to find, one way or the other, whether bin Laden is 8 an unindicted co-conspirator. I did in fact argue a few 9 minutes ago that we respectfully submit that he is, but your 10 Honor doesn't need to resolve that question because your 11 Honor's instruction doesn't make the admissibility or the use 12 to which the jury can put the evidence turn on that. 13 And the government, as we have now made clear, isn't 14 going to be making any other inappropriate use of bin Laden's 15 appearance here. And so, the evidence speaks for itself and 16 your Honor's instruction about it makes its utility quite 17 clear. And, again, the government submits that that is 18 sufficient and appropriate. 19 Mr. Barkow reminded me that bin Laden was in fact 20 referred to in Sattar's opening statement. I don't remember 21 precisely the quotation, we can find it but, again, it just 22 indicates that the jury selection was not the only time that 23 the name bin Laden has been mentioned. It was with respect to 24 the 1998 fatwa. 25 MR. PAUL: That's sort of the dulling the impact as SOUTHERN DISTRICT REPORTERS (212) 805-0300 5269 4925SAT5 1 your Honor ruled that coming in, I think that's why comments 2 were made in my opening. 3 MR. TIGAR: Your Honor, I would only add that it is 4 the presence of the 1998 fatwa evidence that makes this 5 particularly problematic for Ms. Stewart because there the jury 6 did get instruction that that was not admitted against 7 Ms. Stewart. And, as I say, the 2000 evidence was proffered as 8 Taha evidence and that was the theory on which we opened to the 9 jury. But now it is said that bin Laden's statements about 10 some desire to free Omar Abdel Rahman, which of course is an 11 idea that runs through all the counts of this indictment in one 12 form or another, is to be instructed upon subject to 13 connection, which will then lead to an instruction at the end 14 of the government's case about the truth of the matter asserted 15 and so forth and so on, or at the end of the whole case. 16 At some point the jurors will be told what 'subject to 17 connection' means. 18 THE COURT: I already told them that. 19 MR. TIGAR: Yes, you can consider it until I tell you 20 to disregard it. 21 THE COURT: Right. 22 MR. TIGAR: And they will be told the same thing 23 again. 24 THE COURT: No, they're just -- under Tracy, the law 25 in this circuit is that that's not told to the jury. The jury SOUTHERN DISTRICT REPORTERS (212) 805-0300 5270 4925SAT5 1 is told we take this -- this means that you can consider it, 2 unless at some point I tell you not to. In order, precisely, 3 to avoid the situation with the jury that was at issue in Tracy 4 where the judge said, Okay, now the time has come, you can 5 consider it. 6 So, the jury, those are legal questions that the jury 7 is not -- 8 MR. TIGAR: I apologize to your Honor. I don't wish 9 to be misunderstood here. This evidence is coming in. It is 10 coming in without limitations except the limitation as to 11 Mr. Sattar, all right? And under those circumstances it seems 12 to me that the idea that we are here and that Osama bin Laden 13 is a member of a conspiracy to free Sheikh Omar Abdel Rahman, 14 is lethally prejudicial. 15 MS. BAKER: Your Honor, Mr. Tigar's arguments simply 16 do not fairly characterize the way the government presented 17 this evidence in its motion in limine. 18 The government made very clear that these 19 co-conspirators -- I don't know how else to describe them -- 20 were together on that occasion saying what they were saying for 21 the very purpose of trying to achieve the release of Abdel 22 Rahman by any means. It is simply not fair to recast the 23 government's arguments now by saying we offered it all only as 24 hinging on Taha. 25 Each of the participants, by his very presence at that SOUTHERN DISTRICT REPORTERS (212) 805-0300 5271 4925SAT5 1 conference and what he says there, was fully a participant in 2 seeking to use any means, including violence, to obtain Abdel 3 Rahman's release, which is Count Two and your Honor factored 4 all of that into consideration, rejected the 403 objection and 5 found that the evidence should be admitted and that 6 Ms. Stewart's protection -- and the reason why severance was 7 not appropriate -- was because of the limiting instruction that 8 would be given. 9 THE COURT: I can go back and look at this and will. 10 MS. BAKER: If your Honor is going to go back and 11 look, we would ask also that you look at the relevant paragraph 12 of the government's document, paragraph 21, of the indictment. 13 THE COURT: But -- 14 MS. BAKER: We don't believe it is necessary. We 15 don't believe it is necessary that your Honor go back and look 16 at it. Mr. Barkow reminds me that paragraph 21 of the 17 indictment is incorporated by reference into Count Two as an 18 overt act. 19 THE COURT: The issue is actually, as I said before, a 20 somewhat narrow issue, and the parties have, I think, somewhat 21 narrowed the issue. 22 The government now says that, you know, nothing turns 23 on this. And the government asks that I just not give any 24 further instruction other than the one that I had already 25 proposed. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5272 4925SAT5 1 And the defendants say, Judge, you admitted this 2 evidence without any representations that it was being admitted 3 because it was somehow a co-conspirator statement or act of 4 Osama bin Laden, it was being admitted because it was a 5 co-conspirator act in particular of Mr. Taha, and statements by 6 Mr. Taha who is plainly alleged to be a participant in the 7 Count Two conspiracy. 8 And I looked at the relevance of the 403 analysis for 9 all the reasons that I explained in the opinion and there is 10 nothing that said today that causes a reconsideration of any of 11 that. And it is also difficult having heard what's on the 12 videotape to look at much factual content as opposed to 13 exhortation in what was said by Osama bin Laden. And nothing 14 turns on whether Osama bin Laden is considered to be a 15 co-conspirator since it is not going to be argued to the jury 16 and it is not being used, as far as I can tell, to get in an 17 alleged co-conspirator statement. 18 And when this issue first came up today when Mr. Paul 19 raised it -- and maybe I'm wrong -- but it was not clear to me 20 that the parties had formulated their positions on this. 21 The question, in my mind, is whether it is not the 22 admissibility of this exhibit or the propriety of the limiting 23 instruction, which I already said that I would give, but 24 whether, under all of the circumstances, given the motion in 25 limine state of the record, whether any further limitation or SOUTHERN DISTRICT REPORTERS (212) 805-0300 5273 4925SAT5 1 instruction for the jury should be given with respect to Osama 2 bin Laden. 3 That's the rather narrow issue. And the answer to 4 that, it seems to me, does not affect the admissibility of the 5 exhibit and any of my prior rulings on the exhibit. It really 6 goes to whether some further instruction is appropriate and, if 7 so, what it is. 8 As I said, nothing that the parties have told me that 9 affects what I already said on the motion in limine. 10 Defendants are correct that the ruling on the motion 11 in limine, what I concentrated on was the significance of this 12 with respect to Mr. Taha who was an alleged co-conspirator in 13 Count Two and also the relevance of this evidence to, if memory 14 serves me right, to Ms. Stewart's state of mind as to whom it 15 is said there is some knowledge of this particular incident, if 16 memory serves me right in the motion in limine. 17 MS. BAKER: That's correct, your Honor. 18 There is a call in which Ms. Stewart discusses with 19 Mr. Sattar a New York Times news article that describes this 20 conference and what was said by the participants. 21 THE COURT: But all of that is not determinative of 22 whether the request for some additional instruction with 23 respect to Osama bin Laden is appropriate. 24 And in answering that I will look at what the parties 25 argued to me in the motion in limine with respect to the SOUTHERN DISTRICT REPORTERS (212) 805-0300 5274 4925SAT5 1 significance of this particular evidence. 2 So, Mr. Morvillo, you were going to give me a letter 3 anyway on some other things, could you just give me copies of 4 briefs on that? I probably can retrieve them from my own file. 5 MR. MORVILLO: I would be happy to supply motions on 6 this issue. 7 MR. TIGAR: The reference to the representations made 8 about this at transcript 484 when Mr. Barkow was seeking 9 admission of the 2000 free Abdel Rahman. 10 THE COURT: What does it say? 11 MR. TIGAR: It says -- he focuses on Taha, your Honor, 12 and exclusively on Taha as a conspirator. 13 And the reason for that and why -- I am sorry to keep 14 pressing this -- paragraph 21 does indeed reference the 15 September 21, 2000 meeting but paragraph 21 is incorporated in 16 Counts One, Four, five, Six and Seven as well, all of which 17 Ms. Stewart is named. 18 So, now we understand that Mr. Taha is an alleged 19 conspirator because the evidence has made that clear that it is 20 alleged. With respect to what we might call the SAMs counts, 21 because communications that somehow originated with him wind up 22 being discussed in the prison business. So I mean, we 23 understand that and we will deal with it. 24 But, if it is said now that Osama bin Laden is, by 25 virtue of paragraph 21 a conspirator, then it is a little hard SOUTHERN DISTRICT REPORTERS (212) 805-0300 5275 4925SAT5 1 to see how Counts One, Four and Four don't run us into some 2 severance, multiple conspiracy or whatever kinds of, you know, 3 whatever issues there are, and why we don't have some 4 difficulty on Counts, Five, six and Seven. 5 It may therefore be that there has to be some further 6 inquiry. Perhaps the inquiry is that the mere presence of 7 Osama bin Laden at a meeting where someone says free the Sheikh 8 and he says free the Sheikh, doesn't make him a conspirator. 9 And under Bourjaly, the Court could look right now and 10 say we could do this at the end but right now the government 11 doesn't seem to have sustained any basis on which to make a 12 claim that it has, is just as well then as Judge Cardozo said, 13 Words sounding in bare permission do not an accessory make, 14 People v. Swersky, quoting Hales' Pleas of the Crown, and the 15 president doesn't seem to make a conspiracy. 16 We can write a letter about this, your Honor, but I 17 think the issue is more complicated than the government is 18 making it. 19 THE COURT: I think it is actually a lot less 20 complicated. 21 MS. BAKER: I just wanted to point out that the 22 allegations in the indictment are different. 23 Paragraph 21 is incorporated by reference into the 24 counts other than Count Two as background. It is incorporated 25 into Count Two as an overt act in furtherance of the SOUTHERN DISTRICT REPORTERS (212) 805-0300 5276 4925SAT5 1 conspiracy. 2 THE COURT: You know, I do come back to my 3 observations before as a strictly practical matter. 4 When the answer to the question of whether -- when 5 nothing turns on the answer to the question of whether Osama 6 bin Laden is a co-conspirator, because the government doesn't 7 seek to argue it and because where there is an interaction 8 between Osama bin Laden and this case, it is in the context of 9 either statements not admitted for the truth or statements in 10 the presence of other explicitly alleged co-conspirators, 11 the -- and when I have given a careful instruction with respect 12 to the previous 1998 fatwa, whether an additional instruction 13 is warranted. 14 And that issue, in my mind, really is one of whether, 15 is to assure that all the evidence is taken in exactly the 16 correct evidentiary significance. And that's a narrow question 17 and I appreciate it that the government says it wouldn't 18 attempt to make any arguments that go beyond the evidence and I 19 appreciate the government's argument that there is some 20 significance here from the fair inferences from the evidence, 21 but that is something I will consider. 22 You wanted to say something? 23 MS. BAKER: May I have one minute, your Honor? 24 THE COURT: Sure. 25 MS. BAKER: Your Honor, the government generally SOUTHERN DISTRICT REPORTERS (212) 805-0300 5277 4925SAT5 1 agrees with what you said but disagrees a little bit. 2 We agree that this question now before the Court 3 should not affect the Court's prior determinations on 4 admissibility and so on. 5 It is -- we are facing this issue now in the context 6 of a request by Sattar's lawyers for an additional limiting 7 instruction. However, the limiting instruction that they are 8 specifically requesting is an instruction that bin Laden is not 9 a co-conspirator and the government takes issue with that 10 proposition. So, it appears that the Courts will have to look 11 at that narrow question to resolve this narrow issue that is 12 now before the Court. 13 I would remind the Court that when the government was 14 briefing this issue in its motion in limine, what the 15 government was there seeking was the pretrial determination of 16 the admissibility of the piece of evidence and therefore we 17 were arguing its probativeness and that there was not unfair 18 prejudice outweighing the probativeness. And in making that 19 argument we made certain concessions anticipating what the 20 defense was going to be arguing back. We were obviously not 21 arguing against a request for a limiting instruction 22 specifically addressing the question of whether or not bin 23 Laden is a co-conspirator. 24 So, I'm a little concerned about trying to read too 25 much into the government's briefing as it bears on a question SOUTHERN DISTRICT REPORTERS (212) 805-0300 5278 4925SAT5 1 that the government wasn't even imagining directly at the time, 2 particularly in light of, as I have reminded the Court, the 3 fact that the conference, as a whole, was incorporated as an 4 overt act in Count Two. 5 The only other thing I would suggest is if your Honor, 6 in reflecting on the narrow question of whether or not bin 7 Laden is or isn't a co-conspirator such that the limiting 8 instruction requested by Sattar's lawyers should or should not 9 be given, if your Honor thinks that some additional limiting 10 instruction is appropriate, the government would suggest, as an 11 alternative, instead of telling the jury that bin Laden is not 12 a co-conspirator because the government believes that the 13 content of 538 itself shows that he is, that instead a more 14 appropriate instruction, if the Court determines that any of it 15 is necessary -- which we submit is not -- should be something 16 more akin to what was said in jury selection, which is that the 17 events of 9/11 have nothing to do with this case, or other 18 conduct by bin Laden outside of the specific evidence presented 19 here, has nothing to do with this case. 20 THE COURT: Oh -- no. The appropriate instruction is 21 not to advise the jury that having heard references to bin 22 Laden, that in the middle of a trial I should begin to instruct 23 them about 9/11 and the fact that it doesn't have anything to 24 do with 9/11. That is not an appropriate instruction. 25 I come back to the very practical issue of if nothing SOUTHERN DISTRICT REPORTERS (212) 805-0300 5279 4925SAT5 1 is being sought with respect to anything else with respect to 2 bin Laden other than his interaction on a couple of occasions 3 on matters that are otherwise in evidence and, rightfully so, 4 why whether an additional instruction to assure that all the 5 evidence is treated in exactly the right way, why such an 6 instruction -- whether such an instruction is appropriate. 7 Now, it is true that, as I started by saying that this 8 issue usually only has significance with respect to 9 co-conspirator statements and it is not and there are no other 10 statements out there that are sought to be admitted and it is 11 unusual to instruct the jury that someone is not a 12 co-conspirator, so. 13 But, nevertheless, I will consider that. 14 Let me ask another question. What is the significance 15 to the government in terms of the evidence from an 16 instruction -- from the requested instruction? 17 The videotape comes in, the jury has heard lots of 18 evidence with respect to Taha and some evidence with respect to 19 the sons of Sheikh Rahman. 20 They now have a meeting which is admissible for all of 21 the reasons that I said and what is the significance in terms 22 of the evidence of the additional instruction that I was asked 23 to give by Mr. Sattar's counsel? 24 MS. BAKER: Your Honor, the government believes that 25 the instruction would be inaccurate depiction of the facts in SOUTHERN DISTRICT REPORTERS (212) 805-0300 5280 4925SAT5 1 reality in light of bin Laden's conduct and what it evidences. 2 And, we believe it detracts from the probative force of the 3 evidence. 4 The fact is that Taha -- the government conceives of 5 this as a conspiracy where Taha, who is one of the most 6 important co-conspirators for purposes of this case, has 7 Mr. Sattar on one side of him and bin Laden and Al-Zawahiri, 8 known to be terrorist leaders, on the other side of him. 9 We are not, obviously, saying that Mr. Sattar is 10 directly connected to bin Laden, but the probative force of 11 this evidence, with respect to Mr. Sattar, and he, after 12 watching this, he has a series of telephone calls about it with 13 various people including with Taha himself, and it is 14 significant to Mr. Sattar's ongoing participation in the Count 15 Two conspiracy and the Count Three solicitation of violence 16 that he continues to engage in that conduct including by 17 participating in the dissemination of the ghost written fatwa, 18 after seeing his primary co-conspirator, Mr. Taha, there with 19 these other co-conspirators sitting next to him under this 20 banner, Conference to free Sheikh Omar Abdel Rahman. 21 And, it is clear from the other evidence, Sattar has 22 knowledge in his head as to who these other people are and 23 Government Exhibit 538, itself, describes who these other 24 people are. 25 And so, all of that bears on the color of the SOUTHERN DISTRICT REPORTERS (212) 805-0300 5281 4925SAT5 1 evidence, the vitality of the evidence, its probative force, in 2 showing what Mr. Sattar knew, had learned and internalized and, 3 while continuing to engage in the conduct that is an important 4 part of the conduct at issue in Counts Two and Three. 5 MR. TIGAR: Your Honor, one of the reasons for 6 instructions is to help jurors not to overvalue evidence, to 7 use it correctly. And I seem to hear that the government says 8 they don't want an instruction that would lead jurors to 9 undervalue evidence. 10 This tape is going to be played during the week of 11 September 11th on the heels of a speech of the President of the 12 United States at Ground Zero and so on. So, the emotive value 13 of bin Laden and the rest of it is very great. 14 I know that probably doesn't even bear saying but it 15 hasn't yet been said on this record about this and I did want 16 to make that observation. 17 MR. FALLICK: Your Honor, the significance of this 18 piece of evidence is the statements and actions of Mr. Taha and 19 how it impacts on Mr. Sattar's dealings with Mr. Taha. 20 Without such an instruction, as requested by Mr. Paul, 21 the jury will then be free to speculate that Mr. bin Laden was 22 a co-conspirator in the conspiracy charged in this case. And 23 that is what we are trying to avoid. 24 We are not asking the Court -- Mr. Paul certainly did 25 not ask the Court to -- not to admit this piece of evidence. SOUTHERN DISTRICT REPORTERS (212) 805-0300 5282 4925SAT5 1 The court has already ruled on that. 2 All we are asking for is a simple instruction to 3 prevent the jurors from speculating whether Mr. bin Laden is a 4 co-conspirator in charges in this case; the significance of the 5 evidence in relation between Mr. Taha and Mr. Sattar, and that 6 will come out when the tape is played. 7 MS. BAKER: In the government's view, your Honor, the 8 significance of this evidence is the relationship between Taha 9 and Sattar as further affected by the relationship between Taha 10 and the other terrorist leaders with whom he appears in 11 Government Exhibit 538. 12 And the jury should be entitled to infer from the 13 evidence those permissible inferences that it contains factual 14 support for, and the government's argument is that this 15 evidence contains factual support for the inference that bin 16 Laden is the conspirator on the other side of Taha in this 17 narrow instance of conduct. 18 As to Mr. Tigar's argument, for the record, because 19 this is something obviously that your Honor knows, these jurors 20 were carefully selected to weed out any concerns based on their 21 views about 9/11, or any prior or outside conduct, and they 22 have sworn oaths to adjudge the defendants in this case based 23 solely on the evidence presented here at this trial. And all 24 of the instructions that your Honor has given them following on 25 that oath and that voir dire is sufficient to meet the concerns SOUTHERN DISTRICT REPORTERS (212) 805-0300 5283 4925SAT5 1 articulated by Mr. Tigar. 2 THE COURT: All right. 3 You should also, Mr. Morvillo, give me a copy of 4 538 -- not the videotape itself but. 5 MR. MORVILLO: The translation, your Honor? 6 THE COURT: Yes, the translation. 7 MS. BAKER: We did hand it up to your Honor earlier. 8 Your Honor was out of the room, we handed it up to 9 Mr. Fletcher. 10 THE COURT: Thank you. I have it. 11 So, there is the issue of any further instruction on 12 538. 13 By the way, other than 538, is there going to be any 14 other evidence of bin Laden being a co-conspirator in the Count 15 Two conspiracy? 16 MS. BAKER: As your Honor is aware from the argument 17 earlier, there was of course the 1998 fatwa, but there is no 18 other evidence besides those two pieces. 19 MR. MORVILLO: Your Honor, if I may just -- 20 THE COURT: And that was prior to the Count Two 21 conspiracy? 22 MS. BAKER: It is prior to the charged time period of 23 the Count Two conspiracy. 24 THE COURT: Right. 25 MR. MORVILLO: Your Honor, all I was going to add to SOUTHERN DISTRICT REPORTERS (212) 805-0300 5284 4925SAT5 1 that was that in connection with the airing of the videotape 2 that's Government Exhibit 538, there are a number of telephone 3 calls in which bin Laden is discussed and referred to. But it 4 all relates back to Government Exhibit 538. 5 If your Honor likes, in my letter, to list which 6 Government's Exhibits refer to bin Laden. 7 THE COURT: All right. And you are going to give me 8 the proposed instruction with respect to Government's Exhibits 9 1165 and 1166? 10 MR. MORVILLO: What I believe, your Honor, is that 11 the, a proposed instruction for a variety of calls including 12 those two. 13 THE COURT: Okay. 14 MR. TIGAR: And there remains the 560 issue, I think 15 also, your Honor. 16 THE COURT: Right. If the parties want to give me any 17 very brief letters with the cases. 18 MR. TIGAR: We have made all the contentions that we 19 would intend to make on that, your Honor. 20 THE COURT: Okay. 21 MR. TIGAR: We cited the rule and the relevant 22 exhibits. That's it for us. 23 THE COURT: All right. 24 MS. BAKER: Does your Honor already have or do you 25 require a copy of the transcript, the call transcript that I SOUTHERN DISTRICT REPORTERS (212) 805-0300 5285 4925SAT5 1 cited earlier, which was 1171X? 2 THE COURT: I have that. 3 Okay, anything else? See you all on Tuesday morning 4 at 9:00. 5 MR. BARKOW: Sorry, your Honor. 9:00? 6 THE COURT: 9:00. 7 (Adjourned to 9:00 a.m., Tuesday, September 7, 2004.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300 5286 1 INDEX OF EXAMINATION 2 Examination of: Page 3 SAMIRA SABEK 4 Direct By Ms. Baker: . . . . . . . . . . . . 5214 5 Cross By Mr. Tigar . . . . . . . . . . . . . 5225 6 GOVERNMENT EXHIBITS 7 Exhibit No. Received 8 2083 and 2083A . . . . . . . . . . . . . 5242 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS (212) 805-0300