5351 498JSAT1 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 8, 2004 8 9:50 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 and a jury 13 13 APPEARANCES 14 14 DAVID N. KELLEY, 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER, 16 CHRISTOPHER MORVILLO, 17 ANTHONY BARKOW, 17 ANDREW DEMBER, 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL, 19 BARRY M. FALLICK, 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR, 21 JILL R. SHELLOW-LAVINE, 22 Attorneys for Defendant Stewart 22 23 DAVID STERN, 23 DAVID A. RUHNKE, 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5352 498JSAT1 1 (Trial resumes) 2 (In open court; jury not present) 3 THE COURT: Please be seated, all. 4 Good morning. The reason that I came out and wanted 5 to talk to you was to let you know that the jurors are delayed. 6 At least one juror called in to our chambers, and we directed 7 him to Mr. Grate. 8 The vans were delayed and would be delayed so long 9 that Mr. Grate thought -- and I agreed -- it would be quicker 10 if Mr. Grate and a couple of marshals went and picked the 11 jurors up and brought them here by regular subway. 12 As we know, there has been some flooding around the 13 city and some roads are not very passable and some subways are 14 not working, so it is likely that we'll be delayed by about an 15 hour. I wanted to let you know that so that you weren't 16 wondering what is happening. That is the first thing. 17 The second thing that I just wanted to raise with you 18 as long as I had this opportunity, is that I saw the redacted 19 version of Government Exhibit 561 which was passed up 20 yesterday, and I said to redact the headline as well as the 21 third and fourth paragraphs. 22 The copy I got still had the headline. Because that 23 might take some time to do, I wanted to bring that to your 24 attention at the outset. 25 MR. BARKOW: Your Honor, since we're here, I thought I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5353 498JSAT1 1 could take the opportunity to tell the court what we anticipate 2 doing so the court is aware of the appropriate limiting 3 instructions. 4 THE COURT: Because Mr. Fletcher isn't here, I think I 5 don't have realtime, so I'll try to keep my voice up. 6 Do you have realtime? 7 MS. SHELLOW-LAVINE: Your Honor, we have realtime. 8 THE COURT: I don't. 9 MR. BARKOW: We don't, either, your Honor. 10 THE COURT: That means the system is working, but I'm 11 just not attached to it. 12 MR. BARKOW: Your Honor, we would start with 13 continuing to read calls and again in chronological order. 14 I'll tell the court what we're going to do aside from that. 15 After 1177 X, we're going to publish to the jury 16 Government Exhibits 2075 and 2075 S. Those the court 17 previously ruled on. They are a stipulation as a substitution 18 and an audiotape which we are not going to play, but the court 19 had ruled, I believe, that the audiotape as a thing was 20 admissible, and then 2075 S is a substitute for its content, 21 that we would just show that an audiotape was actually found. 22 Then the stipulation 2075 S is a substitute for its contents. 23 THE COURT: So 2075 is -- 24 MR. BARKOW: That should get a limiting instruction 25 that it is offered only against Mr. Sattar because it was found SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5354 498JSAT1 1 in the Sattar search, and it is not offered for the truth of 2 any matters asserted. It is offered only to show his 3 knowledge, intent and state of mind. 4 THE COURT: Did I previously rule with a limiting 5 instruction? 6 MR. BARKOW: I can check that, your Honor, find the 7 specific discussion of that. 8 The next thing we would do is 2021. I can do that 9 right now, your Honor. It would take me a minute, so I thought 10 I would list the other things. 11 The next item is 2021, which was raised yesterday. 12 THE COURT: Right. 13 MR. BARKOW: Then we have some testimony by 14 interpreters, translators regarding two remaining prison calls 15 that we're going to seek to use. Then we go back to 16 intercepted calls for a while. I will look up, your Honor, the 17 discussion of 2075. 18 (Pause) 19 MR. BARKOW: Your Honor, I found it. It is at the 20 transcript for August 13th, at pages 4400 and 4401, and the 21 court stated that the limiting instruction should be: 22 "The evidence is offered only against Mr. Sattar, and 23 as to counts 2 and 3 of the indictment, and not against Ms. 24 Stewart or Mr. Yousry, and only with respect to Mr. Sattar's 25 knowledge, intent and state of mind." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5355 498JSAT1 1 I can print that out, your Honor. 2 THE COURT: That is fine. 3 MR. BARKOW: I should print it? 4 THE COURT: Yes. You can do it right now? 5 MR. BARKOW: I think so. 6 THE COURT: I don't tend to keep all of my transcripts 7 here or I'd look it up. 8 MR. BARKOW: Your Honor, I can pass this to you. 9 THE COURT: Yes. 10 MR. TIGAR: What page is that, your Honor? 11 THE COURT: 4401. 12 MR. TIGAR: Thank you. 13 THE COURT: Do you have it? 14 MS. SHELLOW-LAVINE: We have it, your Honor. Thank 15 you. 16 THE COURT: All right. So I have 2075 and 2021, okay? 17 MS. SHELLOW-LAVINE: Your Honor, while we're doing 18 housekeeping matters, although Mr. Dember isn't here, and I 19 doubt it would be expected, one of the things that remains 20 outstanding is our subpoena to the Bureau of Prisons. The 21 government had filed a motion to quash. It remains still 22 outstanding. 23 THE COURT: I'll have that decision for you today. 24 MS. SHELLOW-LAVINE: Thank you. 25 THE COURT: The other issue that is outstanding is -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5356 498JSAT1 1 and Ms. Baker is here -- there was a whole series of discovery 2 issues, and my recollection is that the government was going to 3 complete its production, and that two days thereafter, the 4 defendants were going to give me something, and that's where it 5 was. 6 MS. BAKER: Your Honor, notwithstanding my best 7 efforts, that is where it remains. I expect to provide another 8 letter with some additional documents today, but that would not 9 be the government's final response. 10 I am still waiting for one additional set of documents 11 from the FBI. 12 MR. TIGAR: Your Honor, we are concerned about this as 13 well because the relief that we would seek does involve things 14 that, in our view, should happen during the government's case 15 in chief. 16 May we know when the production will be completed so 17 that we can decide whether or not to ask your Honor leave to 18 file something now to get the process started rather than 19 waiting for the end? 20 THE COURT: Ms. Baker. 21 MS. BAKER: I am hopeful that the production will be 22 completed by this Friday. However, I believe I have previously 23 expressed hope that production would have been completed before 24 now, so I'm a little reluctant to estimate. 25 As I think I've indicated in some of the prior SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5357 498JSAT1 1 correspondence, some of the documents at issue here are not 2 readily available. They were old documents. They were 3 archived. Only a very few people have sufficient knowledge to 4 locate and determine which documents are appropriate even from 5 my review and pass them on, and those people obviously have 6 many other time-sensitive responsibilities, including some of 7 them last week with respect to the Republican National 8 Convention. 9 Everyone has been approaching this very diligently, 10 but notwithstanding that fact, we find ourselves here with the 11 production still not completed. I do hope by the end of this 12 week. 13 I will say, today's letter will involve the disclosure 14 of some additional documents to the defendant Lynne Stewart as 15 well as copies being provided to the court. I just don't know 16 whether, as I stand here now, whether any further documents 17 will be produced; that is, of the documents that remain for me 18 to review, based on the very general descriptions that have 19 been given to me of those documents, I don't know whether the 20 government will agree to produce any of those additional 21 documents. 22 MR. TIGAR: Your Honor, we would then propose to wait 23 until Friday. I will respectfully request that the court ask 24 the United States Attorney's Office to communicate a sense of 25 urgency about this matter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5358 498JSAT1 1 I understand that things are important, such as the 2 Republican convention, but there are obviously issues of great 3 importance to all of the parties that are before your Honor. 4 THE COURT: I agree with that. 5 Plainly, the government should approach this with a 6 sense of urgency, and if the -- Mr. Fletcher advises me that 7 the jurors are on their way. I agree with the defendants that 8 it makes sense to have the defendants respond after the 9 government was completed, but if the defendants believe that 10 they should respond before that, they can do that. 11 I think it is better to wait. I think it is better 12 for the government to have a sense of urgency with respect to 13 this. 14 MS. BAKER: Your Honor, obviously, I have a sense of 15 urgency with respect to this and I have repeatedly communicated 16 that to the FBI. Of course, at your Honor's direction, I will 17 do so again. 18 THE COURT: All right. 19 MR. TIGAR: Your Honor, we received last night 20 Mr. Barkow's letter. I would like to let the court know we 21 have received it and we're discussing it amongst defense 22 counsel as to what we believe to be the appropriate response. 23 I would note that at Transcript 4245, the court said: 24 "Well, look, unless I hear a well-founded objection 25 based upon the evidence and objections of counsel, 1315 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5359 498JSAT1 1 1315 C are received in evidence for the reasons that I have 2 explained." 3 So I don't have a record as to whether that was in the 4 presence of the jury. I think not. That is simply an 5 interlineation to Mr. Barkow's presentation. 6 But with the court's permission, I would like a chance 7 to talk about it with counsel for the other defendants so that 8 we can present all input into whatever positions we want to 9 take. 10 THE COURT: Sure. All right. Anything further? 11 Okay. Well, I'll take the break and be ready to come 12 out when the jury is ready to come out. 13 MS. BAKER: Your Honor, I was going to ask if it was 14 possible to get a time estimate? I would like to be able to go 15 back to my office, and it would be helpful to me to know what 16 time we might resume. 17 THE COURT: You can go back to your office, and 18 Mr. Fletcher will advise us when the jurors are here because I 19 intend to go back across the street. 20 MS. BAKER: Thank you. 21 THE COURT: The time is somewhat up in the air, Okay? 22 (Recess) 23 THE COURT: Please be seated. Bring in the jury. 24 (Jury present) 25 THE COURT: You may be seated. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5360 498JSAT1 1 Good morning, ladies and gentlemen. 2 THE JURY: Good morning. 3 THE COURT: It is good to see you all. I know that 4 the city has been inconvenienced this morning by the amount of 5 rain we have had, occurring in problems with the transportation 6 and the trains and the like, and I know that some of you have 7 gotten wet in getting here this morning. 8 I want to underline how appreciative all of us are for 9 your conscientiousness and dedication in being here despite all 10 of the inconveniences around the city. I know it took a 11 special effort to be here, and obviously, as I told you before, 12 we can never begin without all of you. 13 I very much appreciate everything that you've done to 14 see that you're here this morning. And so with that, 15 Ms. Baker. 16 MS. BAKER: Your Honor, at this time, the government 17 requests permission to read and display to the jury the 18 transcript that is in evidence as Government Exhibit 1176 X. 19 THE COURT: All right. 20 MS. BAKER: We would ask Mr. Forkner be permitted to 21 come forward and take the witness stand, to read the lines 22 attributed to Ahmed Abdel Sattar. I will read the lines 23 attributed to Lisa Sattar and also read Rifa'l Ahmad Taha Musa, 24 and Mr. Dember will read the lines attributed to the 25 unidentified child. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5361 498JSAT1 1 THE COURT: All right. 2 MS. BAKER: For the record, this is a call on 3 September 23rd, 2000, at 10:49 pm. 4 (At this point, Government Exhibit 1176 X, in 5 evidence, was displayed and read to the jury) 6 MR. BARKOW: Your Honor, at this point, the government 7 requests permission to read and publish Government Exhibit 1177 8 X, which is in evidence. 9 THE COURT: All right. 10 MR. BARKOW: Your Honor, this is a call on September 11 25th, 2000, at 1:33 am. Mr. Forkner will read the lines of 12 Ahmed Abdel Sattar, and I will read the lines of Mohammad Abdel 13 Abdel Rahman. 14 May we proceed? 15 THE COURT: Yes. 16 (At this point, Government Exhibit 1177 X, in 17 evidence, was displayed and read to the jury) 18 MS. BAKER: Your Honor, may we have a stretch break? 19 THE COURT: Yes. 20 (Pause) 21 THE COURT: All right. 22 MR. BARKOW: Your Honor, at this point, the government 23 requests permission to display to the jury what is in evidence 24 as Government Exhibit 2075 and to read and publish to the jury 25 what is in evidence as Government Exhibit 2075 S, like Sam. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5362 498JSAT1 1 THE COURT: All right. Ladies and gentlemen, 2 Government Exhibit 2075 and 2075 S are received in evidence. 3 (Government's Exhibits 2075 AND 2075 S received in 4 evidence) 5 THE COURT: Ladies and gentlemen, this evidence is 6 offered only against Mr. Sattar, and as to Counts 2 and 3 of 7 the indictment, and not against Ms. Stewart or Mr. Yousry, and 8 only with respect to Mr. Sattar's knowledge, intent and state 9 of mind. 10 MR. BARKOW: May I proceed, your Honor? 11 THE COURT: Yes. 12 MR. BARKOW: I have placed Government Exhibit 2075 on 13 the overhead. This this Government Exhibit 20 57 S, like Sam. 14 (At this point, Government Exhibit 2075 S, in 15 evidence, was displayed and read to the jury) 16 THE COURT: All right. 17 MR. BARKOW: Your Honor, at this point, the government 18 requests permission to publish to the jury and read to the jury 19 government exhibit -- I am sorry, your Honor. This exhibit is 20 from the Sattar search, both the last exhibit, 2075 as well as 21 this next exhibit, 2021, which we request permission to read 22 and publish to the jury. 23 THE COURT: All right. Government Exhibit 2021 is 24 received in evidence. 25 (Government's Exhibit 2021 received in evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5363 498JSAT1 1 THE COURT: Ladies and gentlemen, this exhibit is 2 being received not for the truth of anything that is said in 3 the document. As you'll see, it is a newspaper article. As I 4 previously instructed you, newspaper articles contain 5 out-of-court statements by reporters about what happened that 6 may or may not be accurate and, in turn, may contain even other 7 statements being reported by the reporters. 8 So this is not being received for the truth of 9 anything that is said. 10 MR. BARKOW: May I proceed, your Honor? 11 THE COURT: Yes. 12 MR. BARKOW: This is Government Exhibit 2021. 13 (At this point, Government Exhibit 2021, in evidence, 14 was displayed and read to the jury) 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5364 498JSAT1 1 MR. BARKOW: Your Honor, may Mr. Forkner step down. 2 THE COURT: Yes. 3 MS. BAKER: Your Honor, the government calls Nevine 4 Aziz. 5 NEVINE AZIZ, 5 6 called as a witness by the Government, 7 having been duly sworn, testified as follows: 8 DIRECT EXAMINATION 9 BY MS. BAKER: 10 Q. Ms. Aziz, let me just remind you please to try to speak 11 loudly so that everyone will be able to hear you good. 12 Who do you work for? 13 A. I work for the FBI. 14 Q. What kind of work do you do for the FBI? 15 A. I'm a language specialist. 16 Q. And what does that mean that you do on a day-to-day basis? 17 A. I translate. 18 Q. Between which languages? 19 A. Arabic/English and English/Arabic. 20 Q. How long have you been working as a translator for the FBI? 21 A. A little over two-and-a-half years. 22 Q. And your title or position now is language specialist? 23 A. That's correct. 24 Q. At an earlier point in time did you have a different title? 25 A. I was a contract linguist. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5365 498ESAT2 Aziz - direct 1 Q. Were your duties the same or different when you were a 2 contract linguist as they are now that you're a language 3 specialist? 4 A. They were the same. 5 Q. What kinds of materials do you translate between Arabic and 6 English? 7 A. Written documents, audio, video; whatever needs 8 translation. 9 Q. And do you work full time for the FBI? 10 A. Yes, I do. 11 Q. Do you spend all of your time doing translations between 12 Arabic and English? 13 A. Yes, I do. 14 Q. Ms. Aziz, where were you born? 15 A. I was born in Cairo, Egypt. 16 Q. Until what age did you live in Egypt? 17 A. Until I was thirteen. 18 Q. To what country did you go when you left Egypt? 19 A. To the US. 20 Q. Have you lived in the US continuously since then? 21 A. Yes. 22 Q. What is your native language? 23 A. Arabic. 24 Q. Is that the language that you spoke at home as a child? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5366 498ESAT2 Aziz - direct 1 Q. How far had you gotten in school before you left Egypt? 2 A. Ninth grade. 3 Q. And up to that point when you left Egypt, was your 4 education and school conducted in Arabic? 5 A. Yes, it was. 6 Q. You're obviously also fluent in English? 7 A. Yes. 8 Q. Where did you learn English? 9 A. Here in the US in school. 10 Q. Since or after the ninth grade was your schooling in the US 11 conducted in English? 12 A. Yes, it was. 13 Q. What is your highest level of education? 14 A. I'm a college graduate. I have a BS. 15 Q. And where did you attend college? 16 A. Rutgers University. 17 Q. What did you study? 18 A. Biology. 19 Q. Were your college courses conducted in English? 20 A. Yes, they were. 21 Q. What language or languages do you use in your everyday 22 life? 23 A. I use Arabic and English. 24 Q. Now, to obtain your positions with the FBI, first as a 25 contract linguist and now as a language specialist, did you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5367 498ESAT2 Aziz - direct 1 have to pass any sort of tests? 2 A. Yes. 3 Q. What sort of skills were those tests measuring? 4 A. There were listening, writing and reading. 5 Q. In which languages? 6 A. In both. The translation was from Arabic to English. 7 MS. BAKER: Your Honor, we offer Ms. Aziz as an expert 8 in translation from Arabic to English. 9 THE COURT: All right. I'll allow the witness. I'll 10 allow the witness to testify. 11 MS. BAKER: Your Honor, may I approach the witness? 12 THE COURT: Yes. 13 BY MS. BAKER: 14 Q. Ms. Aziz, I've placed before you two items that are marked 15 for identification as Government Exhibits 1730NA and 1732T. 16 Before I ask you about those specifically, as part of 17 your duties as a translator for FBI, were you asked to do 18 certain translations for this case? 19 A. Yes, I was. 20 Q. Now, if you look please at the item marked as Government 21 Exhibit 1730NA. Do you recognize that? 22 A. Yes. 23 Q. What is it? 24 A. It's a CD of a prison call. 25 Q. Were you asked to translate a prison call that's on that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5368 498ESAT2 Aziz - direct 1 CD? 2 A. Yes. 3 Q. Did you do so? 4 A. Yes, I did. 5 Q. What was the date of the prison call that you translated? 6 A. 10/6/2000. 7 Q. And in what language was most of the conversation in that 8 recorded call? 9 A. In Arabic. 10 Q. And you translated it into English? 11 A. That's correct. 12 Q. Could you describe for the jury generally how you went 13 about preparing your translation. 14 A. Well, it involves getting the CD and placing it into a 15 computer. I then have headset, a headset that attaches to the 16 computer. Then I listen to as much as possible as I can and 17 then transcribe it in English. 18 Q. Did you listen to each portion of the call only once or 19 were there portions that you listened to more than once? 20 A. Oh, many more, many times. 21 Q. Would you look, please, at the document in front of you 22 that's marked as Government Exhibit 1732T. Do you recognize 23 that? 24 A. Yes. 25 Q. What is Government Exhibit 1732T? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5369 498ESAT2 Aziz - direct 1 A. It's a transcript of that phone conversation. 2 Q. Is that a transcript that you prepared? 3 A. Yes, I did. 4 Q. And is Government Exhibit 1732T an accurate translation 5 into English of the Arabic that's spoken in that October 6, 6 2000 prison call which is on the disc, Government 7 Exhibit 1730NA? 8 A. Yes, it is. 9 MS. BAKER: Your Honor, I offer Government 10 Exhibit 1732T. 11 THE COURT: All right. 12 MR. RUHNKE: After cross-examination, perhaps? 13 THE COURT: All right. I'll reserve it. 14 MS. BAKER: Your Honor, I wanted to ask the witness a 15 couple of questions about the document, so if Mr. Ruhnke would 16 like voir dire. 17 MR. RUHNKE: That's fine, your Honor. 18 THE COURT: OK. 19 MR. RUHNKE: No, she can go ahead and ask what she was 20 going to ask and I won't object. 21 THE COURT: I'm sorry? 22 MR. RUHNKE: I do not object to her inquiring about 23 the document. 24 THE COURT: Is there any request that I reserve or 25 simply admit the document and -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5370 498ESAT2 Aziz - direct 1 MR. RUHNKE: You can admit the document. 2 THE COURT: OK. Government Exhibit 1732T received in 3 evidence. 4 (Government's Exhibit 1732T received in evidence) 5 BY MS. BAKER: 6 Q. Ms. Aziz, if you would turn, please, to page 21 of 7 Government Exhibit 1732T. Let me direct your attention 8 specifically to lines 1 through 11 at the top of that page. 9 A. Yes. 10 Q. Who was speaking at that point in the conversation? 11 A. Mr. Yousry. 12 Q. What was Mr. Yousry doing at that point in the 13 conversation? 14 A. He was reading. 15 Q. How could you tell that he was reading? Was there 16 something different about the way he was speaking when he was 17 reading? 18 A. Sure. He was reading -- speaking in classical Arabic, 19 which is usually in -- written in the newspapers. And his tone 20 is usually a lot faster when he's reading. 21 Q. Now, within those 11 lines to which I directed your 22 attention, there are several notations that the recording was 23 unintelligible to you. 24 A. That's correct. 25 Q. Let me ask you about that. Do each of those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5371 498ESAT2 Aziz - direct 1 unintelligibles represent only a single word, or do some of 2 them represent more than one word? 3 A. Some of them are a single word, but most of them are 4 sentences and even paragraphs. 5 MS. BAKER: Your Honor, may I approach the witness? 6 THE COURT: Yes. 7 Q. Ms. Aziz, I've shown you another document which is marked 8 for identification as Government Exhibit 540. What is 9 Government Exhibit 540? 10 A. It's a copy of a newspaper or magazine article. 11 Q. And does it state the name of the publication? 12 A. Yes, it does. 13 Q. What is the name of the publication? 14 A. Al-Hayat. 15 Q. And what is the date? 16 A. Friday, 6 October 2000. 17 Q. Let me direct your attention, please, to the back of 18 Government Exhibit 540, which is a two-sided document. Is 19 there an article reflected on the back of that document? 20 A. Yes. 21 Q. Based on -- and now directing your attention back to page 22 21 of Government Exhibit 1732T. Based on the portions there 23 that were intelligible to you, is the article on the back of 24 Government Exhibit 540T the article that Mr. Yousry was reading 25 at that point in the recorded conversation? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5372 498ESAT2 Aziz - direct 1 A. Yes, it is. 2 MS. BAKER: Your Honor, may I have a minute. 3 THE COURT: Yes. 4 MS. BAKER: Your Honor, the government offers 5 Government Exhibit 540T, and I have no further questions for 6 the witness -- sorry, 540. 7 MR. TIGAR: May we have a moment, Judge. 8 THE COURT: Sure. 9 MR. TIGAR: Your Honor, may I retrieve the exhibit to 10 look at it? 11 THE COURT: Sure. 12 MR. TIGAR: Thank you. 13 Your Honor, no objection to 540. We'd like to hear on 14 540T -- 15 MS. BAKER: Your Honor, I misspoke when I said 540T. 16 The government is not offering 540T at this time. We will 17 produce it later. 18 THE COURT: All right. Government Exhibit 540 19 received in evidence without objection. 20 (Government's Exhibit 540 received in evidence) 21 MR. TIGAR: We had a numbering problem over here, your 22 Honor, as well. That's why we -- 23 THE COURT: That's no problem. No problem. OK. 24 Government Exhibit 540 is received in evidence. 25 MR. RUHNKE: I have a question, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5373 498ESAT2 Aziz - direct 1 THE COURT: And, Mr. Ruhnke, you may examine. 2 CROSS EXAMINATION 3 BY MR. RUHNKE: 4 Q. Ms. Aziz, good morning. 5 This conversation on October 6, 2000, originates from 6 a prison, to your recollection, is that correct? 7 A. That's what I was told, yes. 8 Q. And -- well, can you tell from the context of the call that 9 it's a collect call from -- in relation to Omar Abdel Rahman? 10 A. That's correct. 11 Q. And the call reflects the call's being placed by a 12 counselor from the federal medical center? 13 A. That's correct. 14 Q. And that participating in the conversation are Mr. Yousry, 15 Sheikh Rahman, Ramsey Clark and a counselor from the FMC? 16 A. Yes. 17 Q. And to set the context a little bit, there is a discussion 18 in that transcript early on where Mr. Yousry tells Sheikh 19 Rahman that he's been asked by the paralegal to buy a 20 particular newspaper, do you recall that? 21 A. Yes. 22 Q. And the name of that newspaper is Asharq Al-Awsat? 23 A. I'm not sure because there was a number of publications 24 discussed, but that could be it. I'm not sure. 25 Q. And Asharq is a paper widely circulated among Arabic SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5374 498ESAT2 Aziz - cross 1 speakers, is that correct? 2 A. I never bought it myself, but that could be true. 3 Q. It's published in London, is that correct, or do you know? 4 A. I'm not sure either. 5 Q. And Mr. Yousry during the conversation further defines who 6 the paralegal is by referencing Mr. Sattar, is that correct? 7 A. I believe so. 8 Q. And the article is read -- I'm sorry. 9 There's some reading that goes on from the newspaper 10 and in context, Mr. Yousry, while reading the article, 11 discovers that there's a statement in the article attributed to 12 Sheikh Rahman, is that correct? 13 A. I'd have to read it, if that's -- in that same-- 14 Q. Do you have 540 still in front of you? 15 A. Yes. 16 Q. Would you turn over to the back of 540. 17 A. OK. 18 Q. To the article in question. 19 A. Mm-mm. 20 Q. And if I could put this on the Elmo. 21 THE COURT: And, by the way, when you're answering, 22 you have to answer in words, because the reporter can't get 23 down sounds. 24 THE WITNESS: OK. 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5375 498ESAT2 Aziz - cross 1 BY MR. RUHNKE: 2 Q. This is the front of Government Exhibit 540, correct? 3 A. That's correct. 4 Q. And the article you are making reference to is on the rear, 5 is that correct? 6 A. That's correct. 7 Q. Turning the document over, the article I'm circling, that's 8 the article you made reference to? 9 A. Yes. 10 Q. And can you translate the headline of that article? 11 A. (Arabic) -- it's in Arabic, OK. Somebody's encouraging 12 people to do jihad. 13 Q. Somebody's encouraging? 14 A. Jihad. And there's demonstrations in London, Geneva and 15 Frankfurt. 16 Q. As the conversation proceeds, Mr. Yousry inquires at some 17 point of Sheikh Rahman how he was able to get this statement 18 out, is that correct? 19 MS. BAKER: Your Honor, the transcript speaks for 20 itself. We object to these questions. 21 MR. RUHNKE: The transcript's in evidence. 22 THE COURT: No, overruled. 23 A. I'd have to go back to the transcript. 24 Q. Would you turn to page 20 of the transcript. 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5376 498ESAT2 Aziz - cross 1 Q. In your translation at line 7, it says, sir, you are 2 slipping letters out of prison, unintelligible, correct? 3 A. That's correct. 4 Q. And could that be translated, sir, how are you doing this? 5 A. I'd have to listen to the Arabic again. 6 Q. And when you're offering a translation such as this, you're 7 doing the best you can to be accurate, correct? 8 A. Absolutely. 9 Q. But some of these tapes are hard to hear, some of the 10 conversation is hard to hear, correct? 11 A. That's correct. 12 Q. A lot of it has been marked unintelligible, correct? 13 A. Yes. 14 Q. With the abbreviation UI? 15 A. Yes. 16 Q. And what criteria do you use to call a conversation or 17 passage or word unintelligible? How do you make that 18 determination? 19 A. If I can't hear a word or if the word is not clear. 20 Q. And if it's not clear or it could be a couple of things, 21 you call it unintelligible? 22 A. Yes. 23 Q. And later on in this same conversation, and I'll direct you 24 to page 22 of your translation, you have at line 20 Mr. Yousry 25 saying, of course you get these things out, sir, through, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5377 498ESAT2 Aziz - cross 1 then -- 2 A. I'm sorry, page 22? 3 Q. Page 22, line 20. 4 A. I only have one word there on that line. 5 Q. On page 22, line 20? 6 A. Yeah. 7 Q. It says, of course you get these things out, sir, through? 8 A. Page 22, line 20 says Israel. 9 Q. The problem was the pagination. Mine is slightly 10 different. 11 If you go to page 23, line 8, do you see now where we 12 are? 13 A. Yes. 14 Q. And your translation means, of course you get these things 15 out, sir, through. And then Mr. Rahman begins to speak, Sheikh 16 Rahman speaks in a mixture of English and Arabic, correct? 17 A. Yes. 18 Q. First he says in Arabic, no, no, no, Mr. Yousry? 19 A. That's correct. 20 Q. And Mr. Yousry is English? 21 A. English. 22 Q. So Yousry says, yeah, then Sheikh Rahman says in English, 23 none of your business, none of your business; correct? 24 A. That's correct. 25 Q. And did you hear those words, none of your business, on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5378 498ESAT2 Aziz - cross 1 CD that you listened to? 2 A. Yes. 3 Q. Now, you made reference before to classical Arabic? 4 A. Yes. 5 Q. What is the difference between classical Arabic and 6 conversational Arabic? 7 A. It's like speaking dialect, different dialects, different 8 Arabic. It's like in English there's certain words you might 9 use in conversation that wouldn't be in a written document, for 10 example. 11 Q. When we speak in court -- 12 A. Slang. 13 Q. When we speak in court, as we are now, we tend to think 14 carefully about what we say and speak formally and precisely, 15 but when we're just chatting with friends over beer, we might 16 not be so formal, correct? 17 A. Correct. 18 MR. RUHNKE: Thank you, ma'am. I have no questions. 19 THE COURT: All right. 20 MR. TIGAR: May I inquire briefly, your Honor. 21 THE COURT: Yes, Mr. Tigar. 22 CROSS EXAMINATION 23 BY MR. TIGAR: 24 Q. When you prepared this transcript, 1732T, how did you 25 identify the various people who were speaking? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5379 498ESAT2 Aziz - cross 1 A. Some of them were identified. They identified themselves. 2 Q. Did you have a draft translation that you began with or did 3 you work simply from the CD or DVD that you were given? 4 A. I don't recall if I might have had part of the heading. I 5 may have, I'm not sure. 6 Q. Did you have a draft of the text? 7 A. No. 8 Q. You started at the beginning, correct? 9 A. Yes. 10 Q. And so you -- and did you have a recording of the whole 11 telephone call from beginning to end? 12 A. Yes. 13 Q. And any excerpting that was done, then that would have been 14 done afterward for trial purposes, correct? 15 MS. BAKER: Objection. There has been no excerpting. 16 MR. TIGAR: I'm asking the witness, your Honor. 17 THE COURT: Yes. 18 MS. BAKER: I object as -- 19 THE COURT: Hold on. 20 Overruled. 21 Do you know if there was any excerpting? 22 THE WITNESS: No. The conversation is there from 23 beginning to end. As far as I know there was no excerpting 24 done. 25 - - - - - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5380 498ESAT2 Aziz - cross 1 BY MR. TIGAR: 2 Q. So based on what you had, we have the whole conversation, 3 right? 4 A. Yes. 5 Q. And the only speakers on this conversation are the ones 6 that are listed here, Omar Abdel Rahman, Mohammed Yousry, 7 Ramsey Clark, Mr. Louis, Mr. Basward, an unknown male and the 8 ATD recorded message, right? 9 A. As far as I know, unless there was someone who spoke and 10 was unintelligible, then I wouldn't have been able to 11 distinguish. 12 Q. But so far as you're aware, Lynne Stewart was not on this 13 call, correct? 14 A. Yes, that's correct. 15 MR. TIGAR: Thank you. I have no further questions. 16 THE COURT: All right. 17 MS. BAKER: No further questions from the government. 18 THE COURT: All right. Witness is excused. You may 19 step down. 20 (Witness excused) 21 MR. RUHNKE: Your Honor, may I just return this to 22 Ms. Baker. 23 THE COURT: Oh, yes. All right. 24 And it's just about noon, and in order to preserve a 25 break in the morning, we'll take a break now for about ten SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5381 498ESAT2 Aziz - cross 1 minutes. Please remember my continuing instructions, ladies 2 and gentlemen, not to talk about the case, and keep an open 3 mind. 4 And the parties should clear the witness stand. There 5 are some exhibits. 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5382 498ESAT2 Aziz - cross 1 (In open court; jury not present) 2 MS. BAKER: Your Honor, I just wanted to note for the 3 record, I requested the stretch break this morning for the same 4 reason previous breaks have been requested. 5 MR. TIGAR: Your Honor, if we're going to start noting 6 things for the record -- 7 THE COURT: Please stop. Let me talk to you at the 8 side bar. 9 (Continued on next page) 10 (SIDEBAR SEALED) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5390 498ESAT2 1 (In open court; jury present) 2 MR. DEMBER: Your Honor, at this time the government 3 recalls Amira Soliman. 4 THE DEPUTY CLERK: Ms. Soliman, having been previously 5 sworn -- having been previously sworn, you are reminded you are 6 still under oath. 7 MR. DEMBER: Your Honor, based on Ms. Soliman's prior 8 testimony, we ask she be permitted to testify as an expert in 9 the translation of Arabic into English. 10 THE COURT: All right. 11 MR. DEMBER: May I approach the witness, your Honor? 12 THE COURT: Yes. 13 AMIRA SOLIMAN, 13 14 called as a witness by the Government, 15 having been previously duly sworn, testified as follows: 16 DIRECT EXAMINATION 17 BY MR. DEMBER: 18 Q. Ms. Soliman, I'm going to hand up to you two items which 19 are marked for identification as Government Exhibit 1730AC and 20 1733T. 21 MR. DEMBER: Your Honor, I meant to say 1730AS. I 22 misspoke. 23 THE COURT: All right. 24 Q. Ms. Soliman, do you recognize both of those items? 25 A. Yes, I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5391 498ESAT2 Soliman - direct 1 Q. Let me start with the item that's marked 1730AS. That's a 2 CD, is it not? 3 A. Yes. 4 Q. And how do you recognize that? 5 A. I have my initials on it. 6 Q. And let me ask you this: Do you recognize the document 7 that's marked as Government Exhibit 1733T? 8 A. Correct. 9 Q. And how do you recognize that? 10 A. I have my initials on it, each page. 11 Q. And what is Government Exhibit 1733T? 12 A. What is it? 13 Q. What is that exhibit? 14 A. It's the translation of the CD. 15 Q. That's the transcript? 16 A. Yes. 17 Q. Of the -- and did you listen to a recording on that CD that 18 corresponds to that transcript 1733T? 19 A. I did, yes. 20 Q. And what languages were used during that conversation that 21 you listened to on the CD? 22 A. Arabic and English. 23 Q. And what kind of conversation was it, can you tell us? 24 A. It was one of the prison calls between Mohammed Abdel 25 Rahman and Mohammed Yousry, the interpreter. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5392 498ESAT2 Soliman - direct 1 Q. Was it also -- were there also some other individuals who 2 also spoke during that recording? 3 A. Yes. 4 Q. And when did that conversation take place? 5 A. October, 10/20/2000. 6 Q. October 20, 2000? 7 A. Yes. 8 Q. And did you translate the Arabic portion of that call into 9 English? 10 A. Yes, I did. 11 Q. And did you help create the transcript, or with that 12 translation in it? 13 A. Yes. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5393 498JSAT3 Soliman - direct 1 BY MR. DEMBER: 2 Q. Is your translation of the Arabic that you heard on that CD 3 in the transcript a fair and accurate translation? 4 A. Yes, it is. 5 Q. Now, in the transcript, did you indicate at times that 6 certain words or sentences were unintelligible? 7 A. Correct. 8 Q. You did that with the letters U I? 9 A. Yes. 10 Q. When you did that, did you mean to indicate that a single 11 word was unintelligible or could that mean more than a single 12 word was unintelligible? 13 A. Either or. 14 Q. How did you determine that you would indicate something was 15 unintelligible when you heard it? 16 A. I couldn't hear it, I couldn't really understand what they 17 were saying, and I didn't want to assume. 18 Q. When you say you couldn't understand, you mean you couldn't 19 hear it, it wasn't clear enough? 20 A. Yes, I couldn't hear it well. 21 Q. To determine the Arabic words? 22 A. Correct. 23 MR. DEMBER: At this time, the government offers 24 Exhibit 1733 T into evidence. 25 THE COURT: All right. Let me just ask you one SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5394 498JSAT3 Soliman - direct 1 question. You said it is a translation of the CD. 2 Is that the CD you were referring to is 1730, 3 Government Exhibit 1730 A S? 4 THE WITNESS: Yes. 5 THE COURT: All right. Government Exhibit 1733 T, no 6 objection, 1733 T received in evidence. 7 (Government's Exhibit 1733 T received in evidence) 8 MR. DEMBER: May I have a moment, your Honor? 9 THE COURT: Yes. 10 (Pause) 11 BY MR. DEMBER: 12 Q. Ms. Soliman, just to clarify, is there more than one 13 recording on the CD which is in front of you, 1730 A S? 14 A. Yes. 15 Q. Does the transcript 1730 AT in evidence correspond to one 16 of those recordings? 17 A. Yes, it is. 18 MR. DEMBER: Nothing further. 19 CROSS EXAMINATION 20 BY MR. RUHNKE: 21 Q. Good afternoon. 22 A. Hi. 23 Q. I have just a couple of quick questions. 24 This is, as you say, another one of the prison calls, 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5395 498JSAT3 Soliman - cross 1 A. Yes. 2 Q. These are calls placed from the medical center to the 3 attorneys' offices in New York City, correct? 4 A. Correct. 5 Q. In this particular conversation, Sheikh Rahman speaks 6 Arabic. Is that correct? 7 A. Yes. 8 Q. Mr. Yousry speaks Arabic. Is that correct? 9 A. Correct. 10 Q. Also Abdel Jabara speaks Arabic. 11 A. Yes. 12 Q. Mr. Jabara, as you understand it, was one of the attorneys 13 for Sheikh Rahman who speaks some Arabic. Is that correct? 14 A. Yes. 15 Q. How would you describe his Arabic? 16 A. Mr. Jabara? 17 Q. Yes. 18 A. He is good in areas and very weak in others. 19 Q. Can you tell from his accent what region of the Arabic 20 world he -- 21 A. No, because he tends to speak in the classical Arabic. 22 Q. As if he had been taught in school to learn Arabic? 23 A. Yeah. 24 MR. RUHNKE: Thank you. No other questions. 25 THE COURT: All right. Anything further? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5396 498JSAT3 Soliman - cross 1 MR. DEMBER: Nothing further, your Honor. 2 THE COURT: All right. The witness is excused. You 3 may step down. 4 (Witness excused) 5 MR. MORVILLO: At this time, the government would 6 request permission to read and display to the jury Government 7 Exhibit 1178 X in evidence. If Mr. Forkner can come forward to 8 the witness stand, your Honor? 9 THE COURT: Yes. 10 MR. BARKOW: May I retrieve the exhibits from the 11 witness stand? 12 THE COURT: Yes. 13 MR. MORVILLO: For the record, this is a phone call on 14 September 26, 2000, 8:01 am. Mr. Forkner will read the 15 attributions to Ahmed Abdel Sattar, and I will read the 16 attributions of Rifa'l Ahmad Taha Musa, and Mr. Forkner will 17 read the attributions to the unidentified child, and I will 18 read the attributions to Lisa Sattar. 19 May I proceed? 20 THE COURT: Yes. 21 (At this point, Government Exhibit 1178 X, in 22 evidence, was displayed and read to the jury) 23 THE COURT: All right. 24 MR. BARKOW: Your Honor, are we taking a lunch break 25 now? We have another transcript that we can begin. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5397 498JSAT3 1 THE COURT: Why don't we begin until I hear from 2 Mr. Fletcher that lunch is set. Thank you. 3 MR. MORVILLO: At this time, the government requests 4 permission to read and display to the jury Government Exhibit 5 1179 X in evidence. 6 For the record, this is a telephone call from October 7 3rd of 2000, 12:47 pm. Mr. Forkner will read the attributions 8 to Ahmed Abdel Sattar, and I will read the attributions to 9 Mr. Taha. May I proceed? 10 THE COURT: Yes. 11 (At this point, Government Exhibit 1179 X, in 12 evidence, was displayed and read to the jury) 13 MR. MORVILLO: Shall we continue, your Honor? 14 THE COURT: Yes, please. Thank you. 15 MR. MORVILLO: At this time, your Honor, the 16 government requests permission to read and display to the jury 17 Government Exhibit 1180 X in evidence. 18 For the record, this is a telephone call on October 19 3rd, 2000, at 3:17 pm. Mr. Forkner will read the attributions 20 to Ahmed Abdel Sattar, and I will read the attributions to 21 Mr. Taha. May I proceed? 22 THE COURT: Yes. 23 (At this point, Government Exhibit 1180 X, in 24 evidence, was displayed and read) 25 THE COURT: All right. Ladies and gentlemen, we'll SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5398 498JSAT3 1 break now for lunch, until 2:15. Please remember my continuing 2 instruction. Please don't talk about this case at all and 3 remember always to keep an open mind until you have heard all 4 of the evidence and I've instructed you on the law and you've 5 gone to the jury room to begin your deliberation. 6 Have a good lunch. 7 (Jury excused) 8 THE COURT: Have a good lunch. See you at 2:00 9 o'clock. 10 (Luncheon recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5399 498ESAT4 1 AFTERNOON SESSION 2 2:13 p.m. 3 (In open court; jury not present) 4 THE COURT: Does the government want to wait for 5 Ms. Baker? 6 MR. BARKOW: She's not coming back, your Honor. We 7 handed up a new copy for the Court, further redacted, of 561. 8 MR. TIGAR: Your Honor, the government has given us a 9 copy of something that we have had a draft of a long time, 10 1207T. Is that being offered today? Do they intend to publish 11 that today? 12 MR. MORVILLO: We do not intend to publish it today, 13 your Honor, but we do intend to offer it today. X. 14 MR. TIGAR: And -- 15 MR. MORVILLO: Sorry. 1207X is the transcript of 16 1207. 17 MR. TIGAR: And at the time that is offered we will 18 seek a limiting instruction. I don't believe this is one of 19 the ones they've asked for a limiting instruction. 20 MR. MORVILLO: Actually, this call is an overt act in 21 furtherance of the Count 1 conspiracy alleged by cc in Count 1. 22 So it is, in the government's view, a call for which no 23 limiting instruction is appropriate. 24 MR. TIGAR: And the question, then, is whether or not 25 they seek to introduce it subject to connection, or that is to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5400 498ESAT4 1 say, whether they're introducing it because they want 2 declarations in for the truth of the matters asserted or 3 whether they say that this is a -- an act in furtherance, 4 because I think that influences the timing of our raising of 5 the issue. 6 THE COURT: Look, if there's a question with respect 7 to this, why don't you think about it before you give me an 8 answer and maybe talk about it. I'm not sure what it means 9 that it's going to be introduced today but not published to the 10 jury. 11 MR. BARKOW: Your Honor, all that meant is that there 12 is going to be a translator to testify about the T exhibit, and 13 then the X Exhibit, as we've been doing, will be offered into 14 evidence at the conclusion of the testimony. 15 But we will not be seeking to publish 1207X and read 16 it to the jury today. We will not get there today. So I think 17 in our view we might be able to wait until later to discuss the 18 limiting instruction issue because we're not going to be 19 seeking to publish any part of it today. 20 MR. TIGAR: I agree with that, your Honor. I mean, 21 this is clearly relevant to something in the indictment, and 22 thus we couldn't make a global objection with respect to it. 23 THE COURT: OK. So I'll admit 1207T and 1207X and 24 await whatever the parties want to tell me with respect to any 25 limiting instruction before they're read to the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5401 498ESAT4 1 MR. BARKOW: Yes, your Honor, except only that we're 2 only going to be offering 1207X. The witness will authenticate 3 1207T and identify it, but we're only going to offer 1207X. 4 THE COURT: Is 1207T in English? 5 MR. BARKOW: No. No. It's a translation. And the 6 witness is going to be Victoria Benjamin. She's going to 7 testify that she translated that call and other calls. And 8 then, as has been our practice, we're going to be offering into 9 evidence the X exhibit. 10 THE COURT: The X is the transcript? 11 MR. BARKOW: Correct. 12 MR. MORVILLO: The X is the excerpt of the T. Both 13 are transcripts. 14 THE COURT: OK. 15 MR. TIGAR: Your Honor, I don't even know whether I 16 will ask Ms. Benjamin any questions about the matters for which 17 she's being called today. As we discussed, the government sent 18 us that letter at 8:00 last night about the Banout/Benjamin 19 calls, and I would not like my not examining Ms. Benjamin today 20 and trying to expand the scope of her cross to be taken as a 21 waiver of any rights that I might have based on the Court's 22 earlier rulings and on that letter. 23 THE COURT: OK. 24 MR. TIGAR: And the reason is I don't want to 25 interrupt the flow of the proceedings now. This letter seems SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5402 498ESAT4 1 to me to be something of a separate issue. 2 THE COURT: All right. I was going to ask you whether 3 there was any discussion about 540, if I remember the number 4 right. 5 MR. TIGAR: We have reviewed 540, your Honor, and at 6 the time it is offered we will seek a limiting instruction with 7 respect to it. 8 THE COURT: OK. What would the limiting instruction 9 be that you are seeking? 10 MR. TIGAR: That it is offered only -- that it is 11 received only with respect to Counts 2 and 3. 12 Now, to anticipate what the government is going to 13 say, the fatwah, the alleged fatwah is alleged as an overt act 14 in furtherance of Count 1 in the indictment. However, the 15 fatwah is not in our view a truthful or untruthful statement. 16 It is an exhortation. Thus the question is whether under 17 Federal Rule of Evidence 104 the government has admitted 18 sufficient evidence to sustain a finding that this is an overt 19 act in furtherance and during the Count 1 conspiracy. 20 The gravamen of the Count 1 allegations, as I 21 understand it, is some violation of the SAMs or the 22 affirmations in furtherance of the SAMs with respect to 23 communications from Omar Abdel Rahman that are transmitted to 24 the outside world, and then in the government's view, which we 25 contest, communications by his lawyers to him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5403 498ESAT4 1 This fatwah is concededly not Omar Abdel Rahman's 2 fatwah. He hears about it in private conversation and says, 3 none of your business. I'm not going to disown it, but that 4 doesn't establish the necessary foundation. 5 After all, if someone does an act in the world that is 6 a bad one or that people will think is bad and they attribute 7 it to my client, it can hardly be in furtherance of a 8 conspiracy that I discussed with my client that act that took 9 place in the outside world. Indeed, I might have a duty to do 10 so. 11 Now, it's true that Mr. Barkow said yesterday in 12 another context that Government Exhibit 1193 and the T and the 13 X to go with it, a phone call on the 11th of October, contained 14 a discussion between Ms. Stewart and Mr. Yousry about this 15 alleged fatwah. And there the transcript has Ms. Stewart 16 saying something like, well, if the Sheikh's for it, I'm for 17 it. Now, that is a remark to be construed a different number 18 of ways, and I want to make sure I bring them to the Court's 19 attention. 20 In our view the logical meaning of it is if the Sheikh 21 says that he supports this, I'm his lawyer, I'm going to have 22 to deal with it. But regardless of how one sees it, of course, 23 the Rule 104 determination remains to be made. And I'm subject 24 to being corrected on this, your Honor, but it seems to me that 25 the way that acts is distinct from declarations is that there's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5404 498ESAT4 1 got to be a finding at the threshold of -- you know, at the 2 admissibility threshold rather than receipt of acts as distinct 3 from declarations subject to connection. If that is not the 4 Court's view of what the cases teach, Geaney and Tracy, then I 5 stand down and we'll be saying the same thing at another 6 juncture. 7 THE COURT: Well, I'll listen to the government if 8 it's necessary to -- depending on the parties' positions to 9 research it further, I will. And if the parties want to submit 10 letters, it can. 11 My initial observations would be that it's hard to see 12 that in this case you would treat the rules of conditional 13 admissibility under Rule 104 and Tracy and Geaney differently 14 for acts than you would for declarations received for the 15 truth, the determination of whether declarations should be 16 admissible for the truth as coconspirators' statements. 17 Particularly when it's undisputed that the jury could consider 18 this with respect to Counts 2 and 3 and counts -- Count 2, the 19 conspiracy alleged in Count 2 is part of the proof of 20 Count 1 -- not Count 1, Count 4. 21 So there would be no question that the jury could 22 consider the existence of the act and they would look at it for 23 purposes of, as the defense concedes, Counts 2 and 3. 24 And because the existence of the Count 2 conspiracy is 25 part of the proof of the conspiracy to provide material support SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5405 498ESAT4 1 in Count 4, the jury would be considering it also eventually if 2 they -- with respect to the elements of Count 4. So, this is 3 not something which they would have to say, well, I can't 4 consider this for the truth, which is the issue with a 5 coconspirator statement. They're given a fact and they're -- 6 they would be -- if they were to consider it for those counts 7 as to which is relevant as a fact, they're not being asked, as 8 I hear it, to consider it for truth. 9 In any event, it's difficult for me to see why the 10 rules with respect to coconspirator statements would be even 11 more severe in the sense of an exclusion at the outset when 12 you're dealing with acts rather than the question of statements 13 received for their truth. 14 MR. TIGAR: Your Honor, very briefly. 15 First, we do perceive -- and I'll look at the cases 16 because your Honor's suggesting that I've got a problem. But I 17 have always thought that this "subject to connection" business 18 was a really unfair cognitive preloading in the sense that 19 things would get received and heard by the jury before the 20 Court had made what's now called the 104 conditional relevance 21 determination. It just carries forward the common law rule. 22 So broadening the "subject to connection" doctrine and 23 permitting this kind of cognitive preloading, subject to 24 connection, seems to us should not be any broader than the 25 Court of Appeals permitted. That's point one. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5406 498ESAT4 1 Point two, it's true that there is a relationship 2 between Count 4 and Count 2, but a person charged under Count 4 3 can't possibly be responsible for any conspiratorial conduct of 4 which they were unaware. And thus in a separate trial of 5 Ms. Stewart under Count 4 this particular article, unless it 6 could be shown that a translated version of it was shown to 7 her, would not be admissible. 540 wouldn't be in evidence. 8 Mr. Yousry's telephone call saying, hey, there's 9 something in the newspaper would be, but not this. And that of 10 course is a -- that's a position that we take all along about 11 the limits on not just the kind of evidence that supports 12 Count 4, but with respect to other issues that we have raised. 13 I don't mean to take the Court's time with this but -- 14 THE COURT: No, that's all right. 15 MR. TIGAR: But I've thought it through to that 16 extent, and those are my observations about it. And I know the 17 government will brief it and look at the cases. 18 THE COURT: I just raised it now because I -- there 19 doesn't seem to be an objection to the translation of 540T. 20 And the government might not need the translator to put it in, 21 but there is a question as to what any limiting instruction is 22 with respect to 540T. So the parties can think about that, 23 view it and give me a letter on it. 24 Did the government -- I spoke without listening to the 25 government and I responded to what Mr. Tigar said. I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5407 498ESAT4 1 know if the government wants to say anything now or give me a 2 letter on it. 3 MR. MORVILLO: Your Honor, we will give you a letter 4 upon reflection, after reading the exchange between the Court 5 and Mr. Tigar. But just so everyone's clear, we're not 6 offering Government Exhibit 540 and 540T for the truth, just to 7 show the fact that it was published. 8 It was read -- this article was read during one of the 9 prison calls to Sheikh Abdel Rahman by Mr. Yousry, and so we do 10 believe that in a separate trial of Ms. Stewart and Yousry it 11 would come into evidence. 12 THE COURT: All right. Well, you know, both parties 13 can -- all parties can think about it and give me a letter. 14 I'm told that Mr. Stern has another appointment with 15 Judge Kaplan at 4:30, so I'll make sure that we break in time. 16 The other question was whether -- I mean, the 17 government letter, Mr. Dember -- Mr. Barkow's letter of 18 September 7th indicated that Ms. Banout would be a witness 19 tomorrow, September 9th. And the defendants were going to talk 20 and give me any thoughts on the September 7th letter. 21 MR. TIGAR: We have spoken, your Honor, and I know 22 Mr. Paul will want to say something. 23 First, if all the Lockheed Martin recordings were to 24 be excluded from evidence, we would consent to the withdrawal 25 of these. Otherwise, not. Reason not: Although this call, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5408 498ESAT4 1 which is one call, broken into 13 segments, is, in fact, very 2 difficult at times to hear, it is exculpatory. And we're 3 entitled to have it played under Rule 106 for whatever it's 4 worth. And the government spent a lot of jury time putting it 5 in evidence, all the segments, and, in fact, obtained a ruling 6 from your Honor about -- in front of the jury about the 7 underlying DVD. So we object to withdrawing it from evidence, 8 putting aside with what you do with all that direct and 9 cross-examination that would be hanging around out there that 10 had been expended on getting it here. 11 That said, one of the things that bothers us about the 12 weight properly to be given to the Lockheed Martin things 13 particularly is the way in which they were handled. There are 14 a lot of problems about that. 15 But with specific reference to Ms. Banout, this 16 business of finding a problem with a call, recommending it not 17 be used, conferring with two assistant United States attorneys, 18 sending it to ERF, getting it back, is a sequence of events 19 that might well leave the jurors to believe that they should 20 listen to these Lockheed Martin recordings with particular care 21 and ask themselves, gee, what might be missing? What kinds of 22 misinterpretations could there be? 23 Particularly because with respect to a call like this, 24 our only link to the content is the translator. It's not an 25 English language call where the jurors can listen and try to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5409 498ESAT4 1 figure out, you know, based on their own language they speak 2 and cultural acclimatization to how people talk in their town 3 of what might be meant here. 4 And so these problems are particularly acute. And 5 thus we're in a position of saying, you know, absent, you know, 6 the skies opening, all the tapes going out, which isn't going 7 to happen yet, we still have more litigation to do on this 8 subject but it's certainly not going to happen now, we have our 9 106 rights and the right to explore this question of weight 10 that has been promised to us -- "promise" is probably too 11 strong a word -- which I believe is called for by the Court's 12 orders that we have sought and obtained. 13 MR. PAUL: Judge, the only thing I would add is was it 14 was unclear from the letter as to the basis the government was 15 withdrawing what has already been admitted into evidence, and 16 we are objecting to that withdrawal. 17 MR. BARKOW: Your Honor, I guess as an initial matter 18 Mr. Paul is asking what the basis is. We had offered these 19 calls before your Honor and not before the jury. I don't know 20 if that is a distinction with a difference, but they have not 21 been formally admitted in evidence in front of the jury, so we 22 view that as a step short of formal admission. 23 And, therefore, we were going to not proceed any 24 further with these calls because we've passed the point in our 25 chronology, and we view going back to them as not worth it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5410 498ESAT4 1 And we view the -- any further inquiry on this subject to be in 2 our case at least and in our view a waste of time and a 3 distraction to the jury that we don't think is worth the time. 4 We're slightly confused because this -- with respect 5 to these calls, we had proceeded, and Mr. Tigar had been 6 contesting the admissibility of these calls. And now the 7 government has said that we will either not proceed with these 8 calls or would move to strike from evidence these calls at an 9 appropriate time, but now Mr. Tigar seems to be the person 10 asking for the calls to be received. And so I'm slightly I 11 guess surprised by that, so I'll try to respond to that. 12 But basically the e-mails and the memoranda that 13 Ms. Banout wrote and that we disclosed, even though it had not 14 been a litigated issue, we decided to disclose them to 15 Mr. Tigar in the interest of full disclosure. We did that 16 after the Court had indicated I believe its views that these 17 might be appropriately turned over. And on the other hand, 18 similar messages and similar memos for calls that we're not 19 using might not be turned over. And at this point we have 20 decided that it's not significant enough to our case to use 21 these calls and to double-back in time. And so, therefore, 22 these will be calls that we don't intend to use or rely on. 23 And it seems that might move this type of 24 cross-examination and these memos into the category of evidence 25 that relates to calls we're not using. And, therefore, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5411 498ESAT4 1 would not be -- even initially would not have been turned over 2 and, therefore, wouldn't be appropriate for cross-examination. 3 But if in the end Mr. Tigar wants these admitted into 4 evidence now, then we could leave the calls in evidence. We 5 don't currently intend to go back and read these calls because 6 we're past it. And so we don't -- we don't need these calls in 7 evidence anymore. 8 It seems, since we are the proponents of the evidence 9 in the first place and we no longer wish to put them into 10 evidence, it seems odd that we would be forced to offer them 11 again in front of the jury since we've never done that and 12 we've now decided that we don't want to. 13 I guess -- 14 MR. TIGAR: I would study with care the analysis of 15 why they're not wanting to offer the calls. It has something 16 to do with not wanting to disclose certain things or to put a 17 disclosure dispute beyond the reach of something or other. We 18 will be taking the position about the government's disclosure 19 obligations that go beyond what the Jencks Act says. That's 20 not what this is about. 21 We're not being inconsistent. We've taken the global 22 position on admissibility of Lockheed Martin materials and 23 we've been hammering away with that. We continue to do it, but 24 if they're coming in, then we claim our 106 rights. 25 Now, previously we had had a discussion on this record SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5412 498ESAT4 1 about whether the policy of 106 had to do simply with 2 admissibility or also with publication. My -- that is the 3 advisory committee notes to 106, which I remember reading out 4 to the Court at that time, spoke of the misleading impression 5 created by taking matters out of context and the inadequacy of 6 repair work when delayed to a point later in the trial. 7 And our contention would be that these calls ought to 8 be published to the jury during the government's case in chief. 9 Now is not too late. We're only a couple of months after. 10 They do belong in the context because what you have on 11 this call or these calls, your Honor, is a discussion of how 12 Montasser Al-Zayyat is struggling to make sure that the 13 nonviolence initiative stays in place. And that, of course, is 14 a crucial element of Ms. Stewart's case. Because with respect 15 to these events, the heart of it is that she never had any 16 intention to have anybody commit an act of violence, didn't 17 think that's what was involved here and so on, things I said in 18 my opening statement. 19 So this could not be more important in that sense. 20 And we believe the government the first time. They went to 21 enormous effort to get these things in evidence. We think 22 they're part of the context and they ought to be required to be 23 published. 24 MR. BARKOW: Your Honor, if I could speak briefly on 25 this because we would like to move on with the other evidence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5413 498ESAT4 1 this afternoon. 2 THE COURT: Yes, go ahead. 3 MR. BARKOW: I believe the Court -- I can -- we prefer 4 just to move on with the evidence but... 5 THE COURT: You can give me letters on this and -- 6 MR. BARKOW: Your Honor -- I'm sorry. 7 THE COURT: I think it would be good to bring in the 8 jury. I really -- I have to let them go at 4:30 today so -- 9 MR. BARKOW: Your Honor, Ms. Banout has to testify 10 tomorrow because she's leaving town. And what we do have, 11 though, pending is the application to preclude cross on this. 12 And in terms of preparing her, we'd like to know whether she 13 needs to be prepared for cross-examination on the subject. 14 So I don't know when would be the appropriate time for 15 me. I could respond briefly to what Mr. Tigar just said, or I 16 can wait. 17 THE COURT: What are the defendants' positions with 18 respect to Ms. Banout tomorrow? 19 MR. BARKOW: I'm sorry, your Honor? 20 THE COURT: I was asking what the defendants' 21 positions were with respect to Ms. Banout tomorrow. 22 MR. TIGAR: The next time she shows up, I was going to 23 cross-examine her on the matters that I thought I was permitted 24 to. The government had then responded they might put her on on 25 direct, and then we had a colloquy about it, but -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5414 498ESAT4 1 MR. BARKOW: If I may, your Honor, we could propose 2 this: Ms. Banout has to testify tomorrow because she has to be 3 out the following week. Our case is not going to be over at 4 the end of the following week. And if in the end the Court 5 rules that she's appropriately cross-examined about this, then 6 we obviously could bring her back. She's not leaving forever, 7 she's just out of town next week. And that's why we need to 8 have her testify tomorrow about evidence that we're going to 9 perhaps get to next week. 10 So maybe we can -- perhaps we could not have 11 cross-examination of her about this tomorrow. We can discuss 12 this further the following week and a determination can be made 13 before the close of the government's case. 14 MR. TIGAR: If your Honor please, I thought the ruling 15 was that I would cross-examine her about these things the next 16 time she appeared, but if the government represents that before 17 the close of their case we'll get to it, OK. 18 I don't wish, however, by consenting to such a delay 19 to have the government come in and say, well, now it's two 20 weeks after, we can't possibly publish these things right now. 21 If that's going to be the position, your Honor, then -- 22 THE COURT: No, the government can't take that 23 position. 24 MR. TIGAR: So if they're telling me that she'll be 25 back, I'll limit my cross tomorrow. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5415 498ESAT4 1 THE COURT: Well, if I rule that she has to come back 2 and that these calls -- that this issue should be played 3 further in the government case as opposed to into the 4 defendant's case, you won't be prejudiced by the fact that you 5 won't do it tomorrow rather than in another week. 6 MR. TIGAR: That's right. I'm sorry, your Honor. I 7 had thought the law of the case was that sometime before the 8 government rested I would have a chance to interrogate 9 Ms. Banout about her memos. I thought that was the law in the 10 case. 11 THE COURT: That was when -- that was when those -- I 12 have to go back and read it, but that was when the government 13 was planning to introduce those calls as part of its case. And 14 now the issue is, should the government be required to 15 introduce those calls as part of its case, or they wish to 16 strike the calls. 17 MR. TIGAR: I'm sorry. I had thought that was a 18 separate issue from the -- whether I get to ask Ms. Banout some 19 questions, but I didn't mean to presume to have -- to think 20 that your Honor had ruled on something you hadn't. But our 21 position is as I said. 22 THE COURT: OK. You won't be -- the government will 23 bring Ms. Banout back if she should be cross-examined on those 24 calls. And that -- and you won't be prejudiced by the fact 25 that she's -- that you don't cross-examine her tomorrow or that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5416 498ESAT4 1 it's another week before the government introduces those calls. 2 Is that -- 3 MR. TIGAR: Thank you, your Honor. 4 And to be clear, our discussion today is limited to 5 the Jencks Act scope of the production and cross. We have our 6 other issues that are pending that we're not taking up now. 7 THE COURT: OK. All right. Let's bring in the jury. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5417 498ESAT4 1 (In open court; jury present) 2 MR. MORVILLO: Your Honor, Ms. Benjamin is waiting 3 outside. May I be excused for a moment to see if she's here 4 THE COURT: Yes. 5 Good afternoon, ladies and gentlemen. Good to see you 6 all. 7 All right. Government? 8 MR. MORVILLO: Your Honor, the government calls 9 Victoria Benjamin. 10 THE COURT: All right. 11 THE DEPUTY CLERK: Ms. Benjamin, having been 12 previously sworn, you are reminded you're still under oath. 13 VICTORIA BENJAMIN, 13 14 called as a witness by the Government, 15 having been duly sworn, testified as follows: 16 MR. MORVILLO: Your Honor, government requests 17 permission from Ms. Benjamin to testify as an expert witness in 18 the area of Arabic to English translation. 19 THE COURT: Yes. 20 DIRECT EXAMINATION 21 BY MR. MORVILLO: 22 Q. Good afternoon, Ms. Benjamin. 23 A. Good afternoon. 24 MR. MORVILLO: May I approach, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5418 498ESAT4 Benjamin - direct 1 Q. Ms. Benjamin, I've just placed before you what's been 2 marked for identification as Government Exhibits 1185T, 1187T, 3 1202T, 1203T, 1206T and 1207T. 4 A. Yes. 5 Q. Do you recognize those documents? 6 A. Yes, I do. 7 Q. What are they? 8 A. Transcript of calls between Sattar and -- the first one -- 9 THE COURT: Ms. Benjamin, please keep your voice up. 10 Speak into the microphone. 11 Go ahead. 12 A. Between Sattar and Yusuf Odeh. 13 Q. Last name spelled O-D-E-H? 14 A. Yes. And between Sattar and Rifa'i -- 15 Q. Rifa'i, R-I-F-A apostrophe I, Ahmed -- 16 A. A-H-M-A-D -- 17 MR. TIGAR: Excuse me, your Honor. Could the witness 18 give us the exhibit number as she's doing it, and may I confer 19 briefly with Mr. Morvillo. 20 THE COURT: Yes. 21 Q. Ms. Benjamin, with respect to those transcripts, 1185T, 22 1187T, 1202T, 1203T, 1206T and 1207T, are those transcripts of 23 conversations that you prepared? 24 A. Yes, I did. 25 Q. And how do you know that you prepared those transcripts? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5419 498ESAT4 Benjamin - direct 1 A. I prepared them and I have my initial and the date on it. 2 Q. You initialed each transcript and put the date on it? 3 A. Yes, I did. Yes. 4 Q. And are those transcripts of conversations that were 5 contained on DVDs that were provided to you by Special Agent 6 Scott Kerns? 7 A. Yes, they are. 8 Q. And are they true and accurate translations of the audio 9 files that corresponded to these transcripts? 10 A. Yes, they are. 11 MR. MORVILLO: Your Honor, the government would offer 12 at this time Government Exhibits 1185X, 1187X, 1202X, 1203X, 13 1206X and 1207X, subject to the prior stipulation. 14 THE COURT: All right. 15 MR. MORVILLO: And I have no further questions for 16 Ms. Benjamin. 17 THE COURT: Hearing no objections, Government 18 Exhibits 1185X, 1187X, 1202X, 1203X, 1206X and 1207X received 19 in evidence. 20 (Government's Exhibits 1185X, 1187X, 1202X, 1203X, 21 1206X and 1207X received in evidence) 22 MR. MORVILLO: Your Honor, just for the record, the 23 stipulation that I referred to is the stipulation that relates 24 to the excerpting of the T transcripts and the X transcripts. 25 THE COURT: All right. All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5420 498ESAT4 Benjamin - direct 1 No further questions? 2 Ms. Benjamin, you're excused. You may step down. 3 (Witness excused) 4 MR. MORVILLO: May I approach, your Honor, to retrieve 5 the exhibits? 6 THE COURT: Yes. 7 MR. BARKOW: Your Honor, at this point the government 8 requests permission to read and publish what is in evidence 9 Government Exhibit 1181X and ask if Mr. Forkner could step 10 forward. 11 THE COURT: Yes. 12 MR. BARKOW: Your Honor, this is a call on October 3rd 13 of 2004 at 4:06 p.m. Mr. Forkner will read the lines of Ahmed 14 Abdel Sattar, Mr. Morvillo will read the lines of Rifa'i Ahmad 15 Taha Musa, I will read the lines of Abu Bakr, and the 16 attributions to the two unidentified females have been -- I 17 believe they've been redacted out of this call. 18 THE COURT: All right. 19 MR. MORVILLO: For the record, this is a telephone 20 call -- withdrawn. 21 (At this point Government Exhibit 1181X, in evidence, 22 was displayed and read to the jury) 23 MR. BARKOW: Your Honor, at this point the government 24 requests permission to read and publish what has been admitted 25 in evidence Government Exhibit 1182X. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5421 498ESAT4 Benjamin - direct 1 THE COURT: All right. 2 MR. BARKOW: Your Honor, this is a call on October 4th 3 of 2000 at 4:19 p.m. Mr. Forkner will read the lines of Ahmed 4 Abdel Sattar and I will read the lines of Yassir Al-Sirri. 5 May we proceed? 6 THE COURT: Yes. 7 (At this point Government Exhibit 1182X, in evidence, 8 was displayed and read to the jury) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5422 498JSAT5 1 MR. MORVILLO: Your Honor, at this point, the 2 government would request permission to play and to read and 3 display to the jury Government Exhibit 1183 X in evidence. 4 THE COURT: All right. 5 MR. MORVILLO: Your Honor, this is an 18-page 6 transcript. 7 THE COURT: All right. Why don't we take our 8 mid-afternoon break then. Ladies and gentlemen, please 9 remember my continuing instructions not to talk about the case, 10 to keep an open mind. All rise, please. 11 (Jury excused) 12 THE COURT: Some of these transcripts that are in the 13 book, they're not the same as on the screen. 14 MR. BARKOW: The pagination, your Honor? 15 THE COURT: The pagination. 16 MR. BARKOW: It is the same issue with the conversion 17 PDF. 18 THE COURT: Okay. 19 (Recess) 20 THE COURT: All right. Let's bring in the jury. 21 MR. MORVILLO: Just for planning purposes, your Honor, 22 Mr. Stern has to be before Judge Kaplan at 4:30. Are we 23 breaking around 4:20? 24 THE COURT: 4:25. 25 MR. MORVILLO: 4:25. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5423 498JSAT5 1 THE COURT: Obviously, I want to make sure that 2 Mr. Stern can leave and still make it, so whatever is a 3 convenient time to break. 4 MR. MORVILLO: Well, your Honor, we have about 30 5 pages of one transcript, which is very dense. 6 THE COURT: We can break in the middle of it. 7 MR. MORVILLO: Actually, I think we'll get through 8 both of these, but it is a question whether we start the prison 9 call, for which we need a reader for Mr. Yousry. That will 10 probably happen around 4:20. 11 THE COURT: Okay, we can break at 4:20. 12 MR. MORVILLO: Thank your Honor. 13 THE COURT: Sure. Let's bring in the jury. 14 (Jury present). 15 THE COURT: Please be seated, all. 16 All right, Mr. Morvillo. 17 MR. MORVILLO: Your Honor, the government requests 18 permission to read and display to the jury Government Exhibit 19 1183 X. 20 THE COURT: All right. 21 MR. MORVILLO: For the record, this is a telephone 22 call on October 5th of 2000, at 4:30 am, between Ahmed Abdel 23 Sattar and Rifa'l Ahmad Taha Musa. There is also Hani and an 24 unidentified male. If Ms. Griffith could read the attributions 25 to Hani, I will read the attributions to Taha and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5424 498JSAT5 1 unidentified male. 2 THE COURT: All right. 3 (At this point, Government Exhibit 1183 X, in 4 evidence, was displayed and read to the jury) 5 THE COURT: It is 4:00 o'clock. Why don't we take a 6 stretch break. 7 (Pause) 8 THE COURT: All right. If anyone needs any more 9 tissues, Mr. Fletcher can give them to you. All right. You 10 may proceed. 11 MR. MORVILLO: Thank you, your Honor. 12 (At this point, Government Exhibit 1183 X, in 13 evidence, 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 read and publish what is in evidence as 17 Government Exhibit 1184 X. 18 THE COURT: All right. You may proceed. 19 MR. BARKOW: Your Honor, this is a call on October 5th 20 of 2000, at 3:36 pm. Mr. Forkner will reads the lines of Ahmed 21 Abdel Sattar, and I will read the lines of Yasser Al-Sirri. 22 (At this point, Government Exhibit 1184 X, in 23 evidence, was displayed and read) 24 THE COURT: All right. Ladies and gentlemen, we'll 25 break for the day. Please remember to follow my continuing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5425 498JSAT5 1 instructions. Please, don't talk about this case at all among 2 yourselves, with anyone when you go home this evening, 3 tomorrow. 4 Please remember not to look out or listen to anything 5 having anything to do with the case. If you should see or hear 6 something inadvertently, simply turn away. 7 Always remember to keep an open mind until you hear 8 all of the evidence, I've instructed you on the law and you've 9 gone to the jury room to begin your deliberations. Fairness 10 and justice to the parties require us to do that. I certainly 11 hope the weather is better tomorrow. 12 Have a very good evening. I look forward to seeing 13 you tomorrow. 14 (Jury excused) 15 THE COURT: Please be seated, all. I will see you at 16 9:15 tomorrow. 17 MR. DEMBER: Just to tee something up for your Honor 18 and defense counsel, About a week and a half ago or two weeks 19 ago, I provided to defense counsel and to your Honor copies of 20 the exhibits that we're going to seek to introduce from the 21 search of Ms. Stewart's office. I asked counsel to notify me 22 as to which ones they had any objections to, and there is about 23 15 or 16 items they're objecting to. 24 I can either read those exhibit numbers to you now or 25 provide you with a quick letter this evening. What I am SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5426 498JSAT5 1 requesting is that perhaps we discuss these issues maybe at the 2 end of tomorrow. We are hoping to present this evidence next 3 week some time, and most of the objections are to newspaper 4 articles or copies of newspaper articles that were seized from 5 her offices. 6 There is about five or six other items that they also 7 object to, that they have informed me. I can read the exhibit 8 numbers to you now or I can send you a quick letter this 9 evening, earlier this evening. 10 THE COURT: Why don't you send me a quick letter this 11 evening. 12 MR. DEMBER: I will do that, your Honor. 13 MR. RUHNKE: Your Honor, are we breaking early 14 tomorrow afternoon? Is that at the jurors' request? 15 THE COURT: Yes. 16 MR. RUHNKE: What time is that? 17 THE COURT: I think it is 3:00 o'clock. So we're 18 breaking with the jury at 3:00, but we can certainly talk about 19 any issues with respect to exhibits then. 20 Okay, See you at 9:15 tomorrow. 21 (Court adjourned until Thursday, September 9, 2004, at 22 9:15 o'clock am) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5427 498JSAT5 1 GOVERNMENT EXHIBITS 2 Exhibit No. Received 3 2075 AND 2075 S . . . . . . . . . . . . . 5362 4 2021 . . . . . . . . . . . . . . . . . . 5362 5 1732T . . . . . . . . . . . . . . . . . . 5370 6 540 . . . . . . . . . . . . . . . . . . . 5372 7 1733 T . . . . . . . . . . . . . . . . . 5394 8 1185X, 1187X, 1202X, 1203X, 1206X and 1207X 419 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5428 1 INDEX OF EXAMINATION 2 Examination of: Page 3 NEVINE AZIZ 4 Direct By Ms. Baker . . . . . . . . . . . . 5364 5 Cross By Mr. Ruhnke . . . . . . . . . . . . 5373 6 Cross By Mr. Tigar . . . . . . . . . . . . . 5378 7 AMIRA SOLIMAN 8 Direct By Mr. Dember . . . . . . . . . . . . 5390 9 Cross By Mr. Ruhnke . . . . . . . . . . . . 5394 10 VICTORIA BENJAMIN 11 Direct By Mr. Morvillo . . . . . . . . . . . 5417 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300