5429 499esat1 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 9, 2004 8 9:50 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5430 499esat1 1 (Trial continuing) 2 THE COURT: Good morning, all. 3 I received a reasonable number of letters, including 4 one this morning about various newspaper articles and one last 5 night about -- from Ms. Stewart's counsel about 540. I would 6 like to bring the jury out unless there's anything in any of 7 that correspondence that I have to deal with now. 8 MR. BARKOW: Not from our perspective, your Honor, 9 there is not. 10 MR. TIGAR: Before the lunch hour, your Honor, the 11 government will be offering Government Exhibit 544, as to which 12 there is an objection. That's not in any of the correspondence 13 we received. We've known that the article existed and we had 14 that number. We didn't know until quite recently, I think this 15 morning, that it was going to be offered today. It may not be 16 offered until after the break -- 17 MR. BARKOW: We will make it to the break easily, your 18 Honor, before we get to that. So we could probably discuss 19 that at the break. 20 THE COURT: OK. I don't have a copy of 544. 21 MR. TIGAR: 544 is a New York Times newspaper article 22 from October 20, 2000. There is no question that what the 23 government has is a copy of the New York Times of that day. 24 The question is why. They say it's because Ms. Stewart and 25 Mr. Sattar discussed the article in a conversation. Your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5431 499esat1 1 Honor -- 2 MR. BARKOW: We can pass up a copy and the Court can 3 look at it. We have a copy of the article from a different 4 location so we can -- I'll explain that when we discuss it. 5 MR. TIGAR: Its transcript of that call is 1201, your 6 Honor. 7 THE COURT: Well, the transcript is going to be read 8 first before we ever get to the -- 9 MR. BARKOW: That's correct, your Honor. And we will 10 not get to that transcript for a while, actually. We may not 11 even get there until after lunch. 12 THE COURT: OK. All right. Let's bring in the jury. 13 MR. MORVILLO: Your Honor, I just wanted to point out, 14 I had previously given you a transcript status chart. And I've 15 gone back through the chart and found every point in the 16 transcript where each exhibit was introduced and have now 17 included the page cite in a new chart. 18 And what I wanted to advise the Court about is that 19 there is one error in the chart with respect to Government 20 Exhibit 1039X. It's a call that we did not publish to the jury 21 and that's because it is not in evidence. We never offered it. 22 My chart that I previously provided to the Court does indicate 23 that it was produced, so I just want to make the Court aware of 24 that. I'll provide the Court with a new copy, if that would be 25 helpful. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5432 499esat1 1 THE COURT: All right. Your current chart indicates 2 the dates that they were admitted? 3 MR. MORVILLO: No, the page numbers in the transcript 4 where they were admitted. 5 THE COURT: Oh. Well, I've been marking up the one 6 you have -- you had given me. Why don't you -- you can give me 7 the updated chart tomorrow with the page numbers. 8 MR. MORVILLO: Very well. 9 THE COURT: And defendants also. 10 OK. Let's bring in the jury. 11 (Pause) 12 MR. TIGAR: Will we have live witnesses before lunch? 13 MR. BARKOW: Yes, your Honor. Ms. Banout will most 14 likely testify about the July 2001 prison visit translations 15 before. 16 MR. TIGAR: I would just ask that we take special care 17 to ask witnesses to keep their voice up. There's a whistling. 18 My own hearing problem is such that I'm going to have a really 19 hard time following. 20 THE COURT: I will. I will ask. And just let me know 21 if you have any problem. We can ask for -- you can do it in 22 any one of a number of ways. If you just want to ask for a 23 break or anything or let me know in some way, I'll be certain 24 to try and keep the volume up. 25 (Pause) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5433 499esat1 1 MR. PAUL: Judge, before the jury comes out, we're all 2 in agreement it's very warm in this room. I brought it up with 3 Mr. Fletcher. He raised the issue about the jury thinking it's 4 too cold. I thought we went through this already. As far as 5 I'm concerned, it's a little warm. 6 THE COURT: I'll ask Mr. Fletcher to see if he can't 7 bring the temperature down. 8 MR. PAUL: Thank you. 9 THE COURT: There seems to be a breeze at the moment. 10 MR. PAUL: I'm not sure if the AC has kicked in, but I 11 know when we first arrived this morning, it was really pretty 12 bad. I don't know where we're at. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5434 499esat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. Good 3 to see you all. 4 We have some competition this morning from the wind 5 out there, so if at any time anyone has any difficulty hearing 6 or with the sound system or so, just, please, raise your hand 7 and I'll make sure that we try and get people to talk louder. 8 So I appreciate your attention, and just let us know. 9 All right. Mr. Barkow? 10 MR. BARKOW: Your Honor, at this point the government 11 requests permission to read and publish what is in evidence as 12 Government Exhibit 1732T. 13 And we'd ask that Mr. Feldman be allowed to step 14 forward to the podium and -- actually, to the witness stand, 15 and Ms. Baker and I could go to the podium. 16 THE COURT: All right. 17 MR. BARKOW: Your Honor, this is a call on -- may I 18 have just one moment to confer with counsel actually. 19 Your Honor, this is a recording of a prison call that 20 occurred on October 6th of 2000 at 10:30 a.m. We are going to 21 read the following lines. First, we have a new reader for 22 Mr. Yousry; that will be Mr. Feldman. So he will read the 23 lines for Mr. Yousry. 24 I will read the lines for Omar Abdel Rahman, for 25 Counselor Lewis from FMC and for Mr. Bosswort. Ms. Baker will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5435 499esat1 1 read the lines of Ramsey Clark, the unknown male and the AT&T 2 recorded message. 3 Before I read this, I'd like to read into the record 4 an oral stipulation between the parties regarding this 5 presentation of this evidence, if I may. 6 THE COURT: All right. And it's Government 7 Exhibit 1732T in evidence, right? 8 MR. BARKOW: Yes, it is, your Honor. 9 THE COURT: All right. 10 MR. BARKOW: Your Honor, the parties stipulate and 11 agree that the entirety of this call is being read and part 12 will be played as a result of negotiations between the parties. 13 And the entire call that is read and the part being played 14 includes the portions that the government believes to be 15 relevant to the issues in this case as well as the portions the 16 defendants believe are relevant to the issues in this case. 17 May we proceed? 18 THE COURT: Yes. And remember to keep your voice up. 19 (At this point Government Exhibit 1732T, in evidence, 20 was displayed and read to the jury) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5436 499JSAT2 1 THE COURT: The last was an attribution to 2 unidentified male. 3 MR. BARKOW: I am sorry, your Honor? 4 THE COURT: I say there was an attribution to 5 unidentified male before, "you're welcome." 6 MR. BARKOW: I am sorry. I couldn't hear you. 7 THE COURT: I said there was an attribution before 8 "you're welcome," to unidentified male. 9 MR. BARKOW: I'm sorry. 10 (At this point, Government Exhibit 1732 T in evidence, 11 was displayed and read to the jury) 12 MR. BARKOW: Your Honor, may Mr. Feldman step down? 13 THE COURT: Yes. 14 MR. BARKOW: At this point, the government requests 15 permission to play a portion of Government Exhibit 1732, which 16 is in evidence, and which is contained on Government Exhibit 17 1730, a DVD, and to scroll as we play a transcript which is in 18 evidence, Government Exhibit 1732 T, which we just read in 19 full. 20 THE COURT: All right. 21 MR. BARKOW: Your Honor, we are playing this as the 22 product of negotiations and discussions, Pages 1 through 24 23 line 6. 24 THE COURT: All right. You didn't say it, but it is 25 Government Exhibit 1730 in evidence, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5437 499JSAT2 1 MR. BARKOW: 1730 is in evidence, yes. 2 THE COURT: All right. 3 MR. RUHNKE: Just 1 through 24, is there a different 4 pagination from the one on the screen? 5 MR. BARKOW: No, it is not. 6 MR. RUHNKE: They're all the same? Okay. 7 THE COURT: All right. Hold on. Ladies and 8 gentlemen, you should put your earphones on, with the dot 9 facing forward and turn them on, and raise your hand if they're 10 not working. 11 (At this point, Government Exhibit 1732, in evidence, 12 a portion of which was displayed and read to the jury) 13 THE COURT: Hold on. Stop. We need another set of 14 headphones. 15 (Pause) 16 MR. BARKOW: Your Honor, may we now play -- 17 THE COURT: Yes. 18 MR. BARKOW: We'll start from the beginning. 19 THE COURT: Yes. 20 (At this point, Government Exhibit 1732, in evidence, 21 a portion of which was displayed and played to the jury) 22 THE COURT: Stop, please. I know that this is in the 23 middle, but this is a convenient time for us to take a break. 24 I can tell from some of the jurors, We should take a break now. 25 Ladies and gentlemen, please remember my continuing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5438 499JSAT2 1 instructions not to talk about the case at all, remember to 2 keep an open mind until you have heard all of the evidence and 3 I've instructed you on the law. 4 (Jury excused) 5 THE COURT: Please be seated, all. 6 We'll take a break. One juror physically took off her 7 earphones and was beginning to talk, and it was obviously a 8 convenient time for us to take a break. At least two other 9 jurors earlier had asked apparently where in the transcript 10 something was, so it was time. 11 Next, when I got the transcripts this morning, there 12 was a post-it that says, "Prison calls for Judge Koeltl, we 13 will be playing Government Exhibit 1732 T first." 14 The parties should give me exhibits or anything 15 through my law clerks or Mr. Fletcher, but it is not necessary 16 to give me post-its. We'll take 10 minutes. 17 (Recess) 18 THE COURT: Please be seated, all. 19 We can pick up where I interrupted you in terms of the 20 last response. The parties have told me that there was going 21 to be an issue that should be taken up at the break with 22 respect to a document? 23 MR. RUHNKE: I had mentioned to your Honor Exhibit 24 544, the New York Times article. I don't know if another 25 issue -- Mr. Barkow has now assured me that is not likely to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5439 499JSAT2 1 happen soon. 2 MR. BARKOW: Yes, your Honor, we are not going to make 3 it before lunch. We do not have a copy to pass up to the 4 court. We can deliver one to the court and probably talk about 5 it after the lunch break. 6 THE COURT: That's fine. Whenever the jury is ready 7 to come in, bring them in. 8 Where do we go from here? 9 MR. BARKOW: Your Honor, next, after we finish with 10 this exhibit, we're going to call Nabila Banout with some 11 testimony about a July 2001 prison visit, and we are going back 12 to the reading of intercepted telephone calls. 13 THE COURT: All right. 14 (Jury present) 15 THE COURT: Please be seated, all. All right. 16 Ladies and gentlemen, we were up to Page 21 in the 17 exhibit and, as you heard, we're going to go to Page 24 in this 18 exhibit. So if you would put your headphones on with the dot 19 facing forward and turn them on, and we'll then resume. 20 MR. BARKOW: May we proceed, your Honor? 21 THE COURT: Yes. 22 (At this point, Government Exhibit 1732, in evidence, 23 was displayed and played for the jury) 24 MR. BARKOW: Your Honor, at this point, we were 25 stopping at line 6, according to the discussion between us. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5440 499JSAT2 1 THE COURT: Ladies and gentlemen, you can take your 2 earphones off. 3 MR. BARKOW: At this point, the government calls 4 Nabila Banout. 5 THE COURT: All right. 6 NABILA BANOUT, 7 recalled as a witness by the Government, 8 having been previously duly sworn, testified as follows: 9 THE CLERK: Ms. Banout, having been previously sworn, 10 you are reminded that you are still under oath. 11 THE WITNESS: Yes, sir. 12 THE COURT: Please speak up. Ms. Banout, please speak 13 up so that everyone can hear you. We are also competing 14 against the wind today, so please make sure to keep your voice 15 up. 16 Mr. Fletcher reminded you that you're still under 17 oath. Do you understand? 18 THE WITNESS: Yes. 19 THE COURT: Please talk into the microphone. 20 THE WITNESS: Yes, sir. 21 THE COURT: All right, Mr. Barkow, you may proceed. 22 DIRECT EXAMINATION 23 BY MR. BARKOW: 24 Q. Good morning, Ms. Banout. You have testified here 25 previously, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5441 499JSAT2 Banout - direct 1 A. Yes. 2 MR. BARKOW: Your Honor, we request permission to let 3 Ms. Banout testify as an expert in the area of Arabic to 4 English translation. 5 THE COURT: Yes. 6 MR. BARKOW: May I approach, your Honor? 7 THE COURT: Yes. 8 (Pause) 9 BY MR. BARKOW: 10 Q. Ms. Banout, I am placing before you what is in evidence as 11 Government Exhibits 1716 C, 1717 C, 1720 C, 1721 C, 1722 C, and 12 what has been marked for identification as Government Exhibit 13 1717 A and 1718 A. 14 I am also placing before you what has been marked for 15 identification as Government Exhibits 1716 TA, 1717 TA, 1720 16 TA, 1721 TA, and 1722 TA. 17 Can you please take a look at those exhibits that I've 18 just placed before you. First, take a look at the pile of DVDs 19 that I put in front of you. 20 A. Yes, Mr. Barkow. 21 Q. You have looked at the DVDs? 22 A. Yes. 23 MR. BARKOW: And those are, just for the record, those 24 are marked 1716 C, 1717 C, 1720 C, 1721 C, 17 -- sorry -- 1717 25 A and 1718 A and 1722 C. I am sorry. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5442 499JSAT2 Banout - direct 1 BY MR. BARKOW: 2 Q. Is that correct? 3 A. Yes. 4 Q. Now can you please take a look at the transcripts, the 5 other exhibits that I've placed in front of you and take a look 6 through those and look up when you're done. 7 A. (Pause) 8 Q. Ms. Banout, have you looked through Government Exhibits 9 1716 TA, 1717 TA, 1720 TA, 1721 TA, and 1722 TA? 10 A. I've seen 1716 TA, 1717 TA, 1720 TA. 1721 TA and 1722 TA 11 do not have my initials. 12 MR. BARKOW: May I have just a moment, your Honor? 13 THE COURT: Yes. 14 MR. BARKOW: May I approach? 15 THE COURT: Yes. 16 (Pause) 17 MR. TIGAR: May I confer with Mr. Barkow, your Honor? 18 THE COURT: Yes. 19 MR. BARKOW: Your Honor, Mr. Tigar has graciously 20 agreed that the -- if I may bring these back to Ms. Banout -- 21 that we can proceed as though these are the initial copies. We 22 seem to have brought the wrong copies to court. 23 MR. TIGAR: The government produced to us, your Honor, 24 copies that do have Ms. Banout's initials on them, and for some 25 reason their original doesn't. We agree they're the same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5443 499JSAT2 Banout - direct 1 documents. 2 MR. BARKOW: I have just been handed the correct copy, 3 your Honor. If I may approach and give these to Ms. Banout? 4 THE COURT: Yes. 5 BY MR. BARKOW: 6 Q. Ms. Banout, now I've placed before you new copies of 7 Government Exhibit 1721 TA, 1722 TA. Can you take a look at 8 those and look up when you're done. 9 A. (Pause) Yes. 10 Q. Ms. Banout, just so the record is clear, you have before 11 you Government Exhibits 1716 TA, 1717 TA, 1720 TA, 1721 TA and 12 1722 TA. Have you looked through all of those exhibits? 13 A. Yes. 14 Q. Do you recognize them? 15 A. Yes. 16 Q. How are you able to recognize them? 17 A. With my initials on each single page. 18 Q. Just to be clear, are your initials on each page of all 19 five of those exhibits that I've just listed? 20 A. Yes. 21 Q. And what are those exhibits that are bearing your initials 22 on the five exhibits in front of you? 23 A. They are the translation of the videotapes covering the 24 visit, prison visit of July 13 and 14 of 20O1. 25 Q. You used the word, "videotapes." You have have in front of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5444 499JSAT2 Banout - direct 1 you DVDs? 2 A. The DVDs, yes. 3 Q. Are these the translations of the Arabic content of the 4 DVDs in front of you? 5 A. Yes. 6 Q. You made these translations? 7 A. Yes. . 8 Q. Are they true and accurate translations of the Arabic into 9 the English, to the best of your ability? 10 A. Yes. 11 Q. Did you do this translation work in your office, in the 12 same setting, in the same cubicle you testified about before? 13 A. Yes. 14 Q. Did you use the same equipment in that cubicle, meaning the 15 headphones that you used and the machine that allowed you to go 16 back and forth, to the extent you needed to? 17 A. Yes. 18 MR. BARKOW: May I have just a moment, your Honor? 19 THE COURT: Yes. 20 (Pause) 21 MR. BARKOW: I have nothing further at this point, 22 your Honor. 23 THE COURT: All right. 24 MR. RUHNKE: Your Honor, just a couple of questions. 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5445 499JSAT2 Banout - direct 1 CROSS EXAMINATION 2 BY MR. RUHNKE: 3 Q. Ms. Banout, good morning. 4 A. Good morning. 5 Q. In Arabic, is there a way of distinguishing between the 6 word "you," meaning you as an individual, and meaning "you" as 7 a group collectively? 8 A. Yes. 9 Q. I am going to show you on the screen -- I won't try to say 10 it -- a document that has been marked MY-20 for identification. 11 MR. RUHNKE: Your Honor, I have shown that to Mr. 12 Barkow, and there is no objection to displaying it. 13 THE COURT: All right. . 14 BY MR. RUHNKE: 15 Q. The document I'm showing you has in both Arabic and in the 16 western script two words, "antum" and "anta"? 17 A. Yes. 18 Q. If I read a transcript, an English transcript that used the 19 word "you," could it be actually either one of these words in 20 Arabic? 21 A. Yes. 22 Q. What does the first word mean? 23 A. Antum is the plural form of anta. 24 Q. If, for example, someone were to say I told you to do this, 25 if it is I told you antum, it means I told you people to do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5446 499JSAT2 Banout - cross 1 this. Is that correct? 2 A. Correct, as a group of people and also as one person if it 3 is in respect. 4 Q. One person, I am sorry? 5 A. In respect, like respectfully you address a single person 6 as plural, the same like the French language. 7 Q. But it means a group of people, antum; and a single person, 8 anta? 9 A. Yes. 10 MR. RUHNKE: Thank you. No further questions. 11 THE COURT: Did you want MY-20 admitted as an aid to 12 the witness' testimony? 13 MR. RUHNKE: Yes, your Honor. 14 THE COURT: All right. 15 MR. RUHNKE: No objection? 16 THE COURT: Hearing no objection, MY-20 admitted as an 17 aid to the witness' testimony. 18 (Defendant's Exhibit MY-20 received in evidence) 19 CROSS EXAMINATION 20 BY MR. TIGAR: 21 Q. Good afternoon. 22 A. Good afternoon. 23 Q. This translation you did was of a prison visit, correct? 24 A. Correct. 25 Q. And on the video, were you watching the video while you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5447 499JSAT2 Banout - cross 1 were doing the translation as well as listening to the audio? 2 A. Yes. 3 Q. This, the video camera, was above some people talking at a 4 round table. Is that right? 5 A. Yes. 6 Q. And the people talking included Ms. Stewart and Mr. Yousry 7 and Omar Abdel Rahman. Is that right? 8 A. Yes. 9 Q. When Omar Abdel Rahman was speaking or Mr. Yousry was 10 speaking in Arabic, they sometimes spoke in the present tense, 11 correct? 12 A. Yes. 13 Q. That is, Omar Abdel Rahman at one point said that he was 14 wearing certain kinds of shoes, correct? Do you remember that? 15 A. I am sorry. Say that again. 16 Q. Could you look at 1716 TA. 17 A. Yes. 18 Q. Would you turn to Page 14, lines 6, 7 and 8. 19 A. Yes. 20 Q. And he, at that point Abdel Rahman, in answer to a 21 question, said "shoes, they are just a bit softer because of my 22 feet," correct? 23 A. Yes. 24 Q. That is the present tense, he is talking about shoes he's 25 wearing right now, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5448 499JSAT2 Banout - cross 1 A. Yes. 2 Q. And in the next line, line 10, he says "my feet have," that 3 is in the present tense, he is saying this is happening right 4 now, correct? 5 A. Yes. 6 Q. Later on in the conversation, people are talking about 7 things that happened to him in the past, correct? 8 A. Yes. 9 Q. You were very careful to know that those were his 10 descriptions of past events and not presently what he was 11 feeling or thinking, right? 12 A. Right. 13 Q. The next thing I wanted to ask was to go back to the 14 discussion we had the last time you were here, nouns in Arabic 15 are gendered, correct? 16 A. I am sorry? 17 Q. Nouns -- 18 A. Nouns are gendered, yes. 19 Q. That means there is a feminine and masculine, as you said a 20 moment ago? In French is it the same, right? 21 A. Ah-huh. 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5449 499esat3 Banout - cross 1 BY MR. TIGAR: 2 Q. Now, what gender -- 3 THE COURT: Hold on one second. You have to respond 4 in words. 5 THE WITNESS: OK. I'm sorry, but yes. 6 THE COURT: And so -- 7 MR. TIGAR: Shall I ask the question again, your 8 Honor. 9 THE COURT: Yes, please. 10 BY MR. TIGAR: 11 Q. Nouns in Arabic are gendered just as they are in French? 12 A. Yes, they are. 13 Q. What gender is the word fatwah? 14 A. Fatwah is gendered as a feminine -- not feminine, because a 15 fatwah is not a person. 16 Q. That's right. 17 A. You can't say it's male or female, but it is treated as a 18 female gender. 19 Q. For instance, what gender does "letter" have, as in, I sent 20 him a letter, in Arabic? 21 A. That's male. 22 Q. That's male? 23 A. Mm-mm. 24 Q. Whereas in French it's female, correct? 25 A. I'm not very good in French, but I assume so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5450 499esat3 Banout - cross 1 Q. But you can't say that a letter you sent through the post 2 is a man or a woman; it's just a thing, right? 3 A. No, you can't. 4 Q. But in Arabic, you're always -- one is always very careful 5 to identify it as having this characteristic male or female, 6 correct? 7 A. Yes, exactly so. 8 MR. TIGAR: Thank you very much, your Honor. I have 9 no further questions. 10 THE COURT: All right. 11 MR. BARKOW: Just a very brief redirect, your Honor. 12 If I may get from Mr. Ruhnke MY... 13 THE COURT: All right. 14 MR. BARKOW: If I may, your Honor, display this to the 15 witness and to the jury on the Elmo. 16 THE COURT: Yes. 17 REDIRECT EXAMINATION 18 BY MR. BARKOW: 19 Q. Ms. Banout, I'm placing before you what has been admitted 20 as an aid, Defense Exhibit MY20. I just wanted to ask you 21 something to make sure I'm clear on your explanation of this. 22 First of all, the top one, antum, is that a singular 23 or the plural? 24 A. Plural. 25 Q. And so anta is the singular? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5451 499esat3 Banout - redirect 1 A. Masculine singular. 2 Q. OK. Now, were you saying that in certain instances one 3 might use antum, the plural, still to refer to a singular you? 4 A. Yes. You can add -- 5 Q. Can you explain that? 6 A. Yes. You can add as a single person um in plural, using 7 antum out of respect. 8 Q. Kind of like the royal we idea? 9 A. Exactly so. 10 Q. OK. 11 MR. BARKOW: May I have just a moment, your Honor. 12 I have nothing further, your Honor. Thank you, 13 Ms. Banout. 14 MR. RUHNKE: Nothing further. 15 THE COURT: All right. Ms. Banout, you're excused. 16 You may step down. 17 (Witness excused) 18 MR. BARKOW: Your Honor, at this point the government 19 offers into evidence and asks permission to read and publish a 20 stipulation signed between the parties, Government 21 Exhibit 1762. 22 THE COURT: All right. Government Exhibit 1762 23 received in evidence. 24 (Government's Exhibit 1762 received in evidence) 25 MR. BARKOW: And may I display it to the jury, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5452 499esat3 1 Honor. 2 THE COURT: Yes. 3 MR. BARKOW: Government Exhibit 1762 reads, the 4 parties hereby stipulate and agree that, if called as a witness 5 at trial, Gerard Francisco, who works as a legal administration 6 specialist for the United States Attorney's Office, would 7 testify as follows: 8 He made the two DVDs marked as Government 9 Exhibits 1717A and 1718A. These DVDs relate to the July 13, 10 2001 prison visit and, as further explained below, contain 11 exact copies (without enhancement) of portions of the 12 corresponding Hi-8 tapes which are in evidence as Government 13 Exhibits 1717 and 1718 respectively. 14 Two, Government Exhibit 1717A is a copy of the first 15 few minutes of Government Exhibit 1717, which is "Tape 2" of 16 the July 13, 2001 prison visit. Government Exhibit 1717A was 17 prepared because a few words that are recorded at the beginning 18 of Government Exhibit 1717 were inadvertently omitted from 19 Government Exhibit 1717C, which is the enhanced copy of 20 Government Exhibit 1717. 21 Three, Government Exhibit 1718A is a copy of the last 22 few minutes of Government Exhibit 1718, which is "Tape 1" of 23 the July 13, 2001 prison visit. Government Exhibit 1718A was 24 prepared because the end of Government Exhibit 1718 contains a 25 very brief portion (which corresponds to approximately two or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5453 499esat3 1 three lines of transcript) that is not contained on Government 2 Exhibit 1716C, which is the enhanced copy of Government 3 Exhibit 1716, which is the other Hi-8 tape that was recorded at 4 the same time as Government Exhibit 1718. Government 5 Exhibit 1718 was never enhanced because it was believed to be 6 completely duplicative of Government Exhibit 1716. 7 Four, Mr. Francisco prepared Government Exhibit 1717A 8 by making an identical copy on DVD of the beginning of the Hi-8 9 tape, Government Exhibit 1717. He prepared Government 10 Exhibit 1718A by making an identical copy on DVD of the end of 11 the Hi-8 tape, Government Exhibit 1718. 12 And it is agreed to and stipulated and signed by the 13 parties and their attorneys and dated September 9, 2004. 14 Your Honor, at this point the government offers into 15 evidence Government Exhibits 1717A and 1718A, which were the 16 subject of this stipulation I just read. 17 THE COURT: All right. No objections, Government 18 Exhibit 1717A and 1718A received in evidence. 19 (Government's Exhibits 1717A and 1718A received in 20 evidence) 21 MS. BAKER: Your Honor, at this time the government 22 seeks permission to display and read to the jury the transcript 23 that is in evidence as Government Exhibit 1185X. 24 THE COURT: Could I just ask one question: The 25 translations are not -- the transcripts are not being offered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5454 499esat3 1 at this time? 2 MS. BAKER: No, not at this time. 3 THE COURT: OK. All right. 4 MS. BAKER: Your Honor, may Mr. Forkner come forward 5 to take the witness stand. 6 THE COURT: Yes. All right. 7 MS. BAKER: For the record, Government Exhibit 1185X 8 is the transcript of a call on October 6, 2000, at 5:02 p.m. 9 Mr. Forkner will read the lines attributed to Ahmed Abdel 10 Sattar and I will read the lines attributed to Yousef Odeh. 11 May we proceed. 12 (At this point Government Exhibit 1185X, in evidence, 13 was displayed and read to the jury) 14 MS. BAKER: Your Honor, at this time the government 15 requests permission to play a portion of the recording that 16 corresponds to that transcript, which recording is in evidence 17 as Government Exhibit 1185, while again displaying the 18 transcript of Exhibit 1185X. 19 THE COURT: All right. And, ladies and gentlemen, if 20 you'd put your headphones on. 21 (At this point Government Exhibit 1185X was played for 22 the jury). 23 THE COURT: All right. 24 MS. BAKER: Your Honor, for the record, that recording 25 was on the DVD in evidence as Government Exhibit 1318. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5455 499esat3 1 THE COURT: All right. Ladies and gentlemen, you can 2 take your earphones off. 3 MR. MORVILLO: Your Honor, at this time the government 4 requests permission to read and display to the jury Government 5 Exhibit 1186X in evidence. 6 THE COURT: All right. 7 MR. MORVILLO: For the record, your Honor, Government 8 Exhibit 1186X is a telephone call on October 6th of 2000 at 9 10:20 p.m. Mr. Forkner will read the attributions to Ahmed 10 Abdel Sattar and I will read the attributions to the 11 unidentified child and Rifa'i Ahmad Taha Musa. 12 May we proceed? 13 THE COURT: Yes. 14 (At this point Government Exhibit 1186X, in evidence, 15 was displayed and read to the jury) 16 MR. MORVILLO: Your Honor, at this time the government 17 requests permission to read and display to the jury Government 18 Exhibit 1252X in evidence. 19 THE COURT: All right. 20 MR. MORVILLO: And for the record, your Honor, this is 21 a telephone call on October 6 of 2000 at 10:34 p.m., The same 22 two participants as the last call. 23 May we proceed? 24 THE COURT: Yes. 25 (At this point Government Exhibit 1252X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5456 499esat3 1 was displayed and read to the jury) 2 MR. MORVILLO: Your Honor, at this point the 3 government requests permission to read and display to the jury 4 Government Exhibit 1187X in evidence. 5 THE COURT: All right. 6 MR. MORVILLO: And for the record, this is a call on 7 October 6, 2000, at 10:39 p.m. It has the same participants as 8 the prior two phone calls. 9 May we proceed? 10 THE COURT: Yes. 11 (At this point Government Exhibit 1187X, in evidence, 12 was displayed and read to the jury) 13 MR. MORVILLO: Your Honor, are we going to break at 14 this point or should we continue with the next call? 15 THE COURT: No, why don't we continue. 16 MR. MORVILLO: The government then would request 17 permission to read and display to the jury Government 18 Exhibit 1188X in evidence. 19 THE COURT: All right. And, ladies and gentlemen, 20 this transcript is offered only as to Counts 2 and 3 of the 21 indictment. And it's received subject to connection against 22 Mr. Sattar. I've explained to you what "subject to connection" 23 means. 24 This transcript cannot be considered against 25 Ms. Stewart or Mr. Yousry for the truth of any of the matters SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5457 499esat3 1 asserted in the transcript. 2 All right. 3 MR. MORVILLO: May I proceed, your Honor. 4 THE COURT: Yes. 5 MR. MORVILLO: For the record, your Honor, this is a 6 telephone call on October 9th of 2000 at 5:27 p.m. And the 7 attributions to Mr. Sattar will be read by Mr. Forkner and I 8 will read the attributions to Rifa'i Ahmad Taha Musa. 9 May I proceed? 10 THE COURT: Yes. 11 (At this point Government Exhibit 1188X, in evidence, 12 was displayed and read to the jury) 13 THE COURT: All right. 14 MR. MORVILLO: Your Honor, the government would 15 request permission to play for the jury Government Exhibit 1188 16 in evidence. 17 THE COURT: All right. 18 MR. MORVILLO: Which is on Government Exhibit 1000, 19 and scroll the transcript as the recording is playing. 20 THE COURT: All right. 21 MR. MORVILLO: May we proceed? 22 THE COURT: Yes. Hold on one moment. 23 Ladies and gentlemen, put your headphones on. 24 (At this point Government Exhibit 1188 was played for 25 the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5458 499esat3 1 THE COURT: All right. Ladies and gentlemen, remember 2 to turn the headsets off. 3 We're going to break for lunch until 2:15. Please 4 remember my continuing instructions not to talk about the case 5 at all. Always remember to keep an open mind until you've 6 heard all of the evidence and I've instructed you on the law. 7 Have a good lunch. I look forward to seeing you a 8 little later this afternoon. 9 All right. See you at 2:00. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5459 499esat3 1 (In open court; jury not present) 2 MR. BARKOW: If I may say one more thing -- scheduling 3 matter. 4 I just wanted to inform the Court and counsel, based 5 on where we're at now, we don't think we'll get to Exhibit 544 6 today. And so we'd ask so that we can maximize jury time, 7 since we're breaking early, if we could talk about that after 8 the jury leaves. 9 THE COURT: That's fine. 10 MS. BAKER: Your Honor, also at that time I wanted to 11 proffer some additional information regarding Government 12 Exhibit 540T, which is one of the translated news articles and 13 is the subject of the government's letter of this morning, but 14 it was also referenced in two of the calls that were presented. 15 And I wanted to address the Court on that. 16 THE COURT: All right. 17 MR. DEMBER: Your Honor, if after we finish for the 18 day we could also talk about these Stewart search exhibits. 19 THE COURT: All right. 20 MR. DEMBER: Talk about that at the end of the day, 21 that would be helpful. 22 THE COURT: All right. 23 MR. BARKOW: And, your Honor, I'm sorry. I should 24 have said, with respect to Exhibit 544 we're going to deliver a 25 copy to the Court that was produced -- we don't have copies of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5460 499esat3 1 the actual exhibit right now, but we'll produce something that 2 was produced in discovery that has the same content. It's just 3 not going to say Exhibit 544 on it. It's a newspaper article, 4 and the one we will be able to deliver to the Court right now 5 will just look slightly different but will have the same 6 content. 7 THE COURT: All right. If you want to give it to me 8 now or after lunch. 9 MR. BARKOW: We can bring it to you during lunch or 10 after lunch. We don't have it here. 11 THE COURT: Just pass it up after lunch. 12 MS. BAKER: Your Honor, may I raise one small 13 housekeeping issue which I'm afraid I'll forget if I wait until 14 the end of the day. 15 As your Honor is aware, over the course of the trial 16 to date there have been a number of sealed proceedings either 17 at side bar or in the robing room. We don't believe that we, 18 the government, have received transcripts of all of those 19 sealed proceedings in any form. And we know that we have not 20 received them on disc, which is the way that we receive the 21 transcripts of the other parts of the trial. So we would ask 22 your Honor to order, if the court reporters believe it's 23 necessary, that the sealed portions of the transcript may be 24 provided or should be provided to the parties. And in 25 addition, that they should be provided to the government on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5461 499esat3 1 disc as the government receives all the rest of its 2 transcripts. 3 THE COURT: Certainly anything that's sealed should be 4 provided, any sealed transcript should be provided to both 5 sides, to all parties. I think I have been getting -- I don't 6 get transcripts on disc, and I think I get the sealed portion 7 separately in hard copy. 8 And if it's convenient for -- and I -- if it's -- if 9 the court reporters are able to give to the parties the sealed 10 portions on disc, that's fine. But I don't know if they do 11 that or can do that. And the parties are welcome to take it up 12 with the court reporters. 13 MR. TIGAR: Your Honor, as I understand the practice, 14 it is that we receive paper copies of the sealed portions. 15 Electronically means by e-mail, as I understand it. 16 MS. BAKER: Your Honor, the government has been 17 receiving the transcript electronically, other than the sealed 18 portions, in two forms: By e-mail and also on disc. It would 19 make perfect sense to me if the court reporters did not wish to 20 e-mail sealed portions, because e-mail is not 100 percent 21 tamper-proof, and so that was my reason for not requesting 22 e-mail. 23 But when we get our hard copies of the transcript, of 24 the unsealed portions, they come with a floppy disc in the 25 back. And so that's why we requested the sealed portions on a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5462 499esat3 1 floppy disc. And we request that just because of the volume of 2 transcript makes us want them all electronically so that they 3 can be searched in full text. 4 THE COURT: That's fine. I mean, if the court 5 reporters can do that. I just want to make sure that the court 6 reporters make sure that they don't confuse the sealed portions 7 with the other portions, which is why I'm sure that they treat 8 them separately. But if it's convenient for the parties to get 9 it on disc, I'm sure it will be helpful to all of you to be 10 helpful to me to have it on disc, so long as you all keep the 11 sealed portions separate. 12 MR. TIGAR: Your Honor, we have a copy of what will 13 become offered as Government Exhibit 544 that we can hand up to 14 the Court, because we can print off another one upstairs. Let 15 me show it to Mr. Barkow and then hand it to the Court to 16 eliminate some to-ing and fro-ing. To whom -- I'll hand it to 17 the marshal. 18 OK. Five after 2:00. We have nothing else to take up 19 at the lunch hour so far as I know, so see you at five after 20 2:00. Have a good lunch. 21 (Luncheon adjournment) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5463 499esat3 1 1 AFTERNOON SESSION 2 2:15 pm 3 (Trial resumes) 4 (In open court; jury not present) 5 THE COURT: Please be seated. 6 The one juror who had a commitment this afternoon 7 asked Mr. Fletcher whether we would be leaving on time. 8 Mr. Fletcher assured the juror we would be breaking at 3:00 9 o'clock. Okay, bring in the jury. 10 (Jury present). 11 THE COURT: Where we going now? 12 MR. MORVILLO: I am sorry, your Honor? 13 THE COURT: The next item? 14 MR. MORVILLO: We are going to request permission to 15 read Government Exhibit 1189 X. 16 THE COURT: Okay. 17 MR. MORVILLO: Followed by 1190 X, followed by 1191 X, 18 and 1192 X, all four of which should receive limiting 19 instructions. 20 Your Honor, just for the court's awareness, we are 21 going to read telephone calls for the remainder of the day. 22 There will be no other exhibits published or witnesses called. 23 THE COURT: Make sure to keep your voice up when 24 reading. 25 (Jury present) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5464 499JSAT4 1 THE COURT: Please be seated, all. 2 Good afternoon, ladies and gentlemen. It is good to 3 see you all. 4 Ladies and gentlemen, I understand that the next four 5 transcripts that will be read to you are 1189 X, 1190 X, 1191 X 6 and 1192 X, if we reach all of those. But, in any event, each 7 of these transcripts is subject to a limiting instruction, and 8 it is the same limiting instruction which I have given you with 9 respect to some other transcripts, And so you're to apply this 10 instruction in each of these four transcripts. 11 This transcript is offered only as to Counts 2 and 3 12 of the indictment and it is received subject to connection 13 against Mr. Sattar. I have explained to you what "subject to 14 connection" means. This transcript cannot be considered 15 against Ms. Stewart or Mr. Yousry for the truth of any of the 16 matters asserted in the transcripts. 17 All right, Mr. Morvillo. 18 MR. MORVILLO: Thank you, your Honor. At this time, 19 the government requests permission to read to the jury and 20 display to the jury Government Exhibit 1189 X. 21 May Mr. Forkner come forward and take the witness 22 stand? 23 THE COURT: Yes. 24 (Pause) 25 MR. MORVILLO: For the record, your Honor, this is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5465 499JSAT4 1 telephone call, Government Exhibit 1189 X, a transcript of a 2 call that occurred on October 9th, 2000, at 11:50 pm. 3 Mr. Forkner will read the attributions to Mr. Sattar, and I 4 will read the attributions to Rifa'l Ahmad Taha. 5 May we proceed? 6 THE COURT: Yes. 7 (At this point, Government Exhibit 1189 X, in 8 evidence, was displayed and read to the jury) 9 MR. MORVILLO: At this point, the government requests 10 permission to read and display to the jury Government Exhibit 11 1190 X in evidence. 12 THE COURT: All right. 13 MR. MORVILLO: For the record, this a transcript of a 14 telephone call on October 10th, 2000, 5:39 am, and it is the 15 same two participants as the prior call. 16 THE COURT: All right. Ladies and gentlemen, as I 17 told you, this is subject to the same limiting instruction that 18 I gave you at the beginning of the afternoon. 19 MR. MORVILLO: May I proceed, your Honor? 20 THE COURT: Yes. 21 (At this point, Government Exhibit 1190 X, in 22 evidence, was displayed and read to the jury) 23 MR. BARKOW: Your Honor, at this point, the government 24 requests permission to read what is in evidence as Government 25 Exhibit 1191 X. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5466 499JSAT4 1 THE COURT: All right. Ladies and gentlemen, this is 2 subject to the same limiting instruction I gave you at the 3 beginning of the afternoon. 4 MR. BARKOW: We also request permission to publish 5 this to the jury. 6 THE COURT: All right. 7 MR. BARKOW: This is a call on October 10th of 2000, 8 9:56 am. Mr. Forkner will read the lines of Ahmed Abdel 9 Sattar, and I will read the lines of both Lisa Sattar and the 10 unidentified male. May we proceed? 11 THE COURT: Yes. 12 (At this point, Government Exhibit 1191 X, in 13 evidence, was displayed and read to the jury) 14 MR. BARKOW: Your Honor, at this point, the government 15 requests permission to read and publish Government Exhibit 1192 16 X, which is in evidence. 17 THE COURT: All right. Ladies and gentlemen, this is 18 subject to the same limiting instruction I gave you at the 19 beginning of the afternoon. 20 MR. BARKOW: Your Honor, this is a call on October 21 11th, 2000, at 4:33 am. Mr. Forkner will read the lines of 22 Ahmed Abdel Sattar, and I will read the lines of Hisham and 23 Alaa Abdul Raziq Atia. May we proceed? 24 THE COURT: Yes. 25 (At this point, Government Exhibit 1192 X, in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5467 499JSAT4 1 evidence, was displayed and read to the jury) 2 THE COURT: All right. 3 MS. BAKER: Your Honor, at this time the government 4 offers into evidence the stipulation that is marked as 5 Government Exhibit 1319, and if Mr. Forkner might be excused? 6 THE COURT: Yes. 7 MS. BAKER: 1319. 8 (Government's Exhibit 1319 was received in evidence) 9 (At this point, Government Exhibit 1319 was read and 10 displayed to the jury) 11 MS. BAKER: Your Honor, based on that stipulation, the 12 government offers into evidence the two CDs that are marked as 13 Government Exhibits 1193 A and 1201 A. 14 THE COURT: All right, Government Exhibits 1193 A and 15 1201 A received in evidence. 16 (Government's Exhibits 1193 A and 1201 A were received 17 in evidence) 18 MS. BAKER: The next item the government would seek to 19 present to the jury is the recorded call which is on the DVD 20 just now received as 1193 A. It is an English-language call. 21 The corresponding transcript which the government offers as an 22 aid to the jury is Government Exhibit 1193 X, and we would seek 23 to present this call by playing the CD, which is 1193 A, while 24 displaying the transcript, which is 1193 X. 25 We estimate that this excerpted call is between 15 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5468 499JSAT4 1 20 minutes' long, so we ask the court whether we should begin 2 that this afternoon, although clearly we will not be able to 3 finish. 4 THE COURT: No. I think we'll break now because I 5 want to make sure that I let the jury go. Thank you for 6 letting me know how long it will take. 7 Ladies and gentlemen, as you know, it is Thursday, and 8 we're breaking a little early. We don't sit on Friday, so 9 we're going to resume on Monday. As always, please remember my 10 instructions. I always try to emphasize that before a break, 11 but you're to continue to apply them always, please don't talk 12 about this case at all among yourselves or with anyone when you 13 go home over the weekend. Please don't look at, listen to 14 anything to do with the case. 15 If you should see or hear something inadvertently, 16 simply turn away. Always remember to keep an open mind until 17 you have heard all of the evidence, I've instructed you on the 18 law, you've gone to the jury room to begin your deliberations. 19 Have a very good weekend, and I look forward to seeing you on 20 Monday morning. 21 (Jury excused) 22 THE COURT: May I talk to the lawyers briefly. 23 (By Order of the Court, Page 5469 is sealed) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5470 499JSAT4 1 (In open court) 2 THE COURT: The juror indicated to Mr. Fletcher that 3 she was okay. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5471 499esat5 1 THE COURT: I'm certainly prepared to listen to the 2 parties on anything they want to talk to me about. 3 MS. BAKER: If your Honor has no preference as to the 4 order of issues, I would ask to raise 540T first because then I 5 would ask to be excused to try to return a phone call of 6 someone from FBI about document related issues. 7 THE COURT: OK. There is -- actually, there were a 8 couple of things before I get to 540T that I just wanted to 9 raise with you and that you actually had been off. 10 The first was 561 has not yet been offered. I realize 11 it's been redacted and I also indicated the limiting 12 instruction. I just raise it because I keep on having it in 13 front of me. 14 MS. BAKER: Your Honor, it's the government's 15 intention to read a stipulation which explains the -- or states 16 that 561X is excerpted from 561T, which was what had been 17 authenticated by the translator's testimony, and then to offer 18 the excerpted exhibit at the appropriate point in the 19 chronology of telephone calls, which will be after we get to 20 the transcript of the call, which is marked as Government 21 Exhibit 1208X. So we have a number of additional calls to go 22 before we reach that point. 23 THE COURT: OK. The second thing I wanted to raise 24 is -- and you weren't here for some of the argument yesterday 25 with respect to 1315 -- and I invited the parties to give me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5472 499esat5 1 any letters with respect to that and I -- that was the 13 audio 2 file, and the parties are welcome to argue it to me or give me 3 letters. I certainly don't want to do anything without having 4 heard the parties out on those issues. And I don't want to 5 rule on them until I've heard the parties out. 6 It appears to me that there are a few issues. One is 7 there are exhibits in evidence; whether they've been heard or 8 shown to the jury or not, the representation is that there are 9 exhibits in evidence. And when the parties give me any letters 10 on this, if they do, they should indicate where this has been 11 discussed previously in the record, where the exhibits are 12 admitted in evidence. 13 So, the first issue would be the government offered, 14 and the representation is I admitted, something that's in 15 evidence. So Mr. Paul says, well, they're in evidence so under 16 what principle would you simply strike them from evidence? You 17 wouldn't. It's not usual to say they're in evidence, we no 18 longer want them in evidence, therefore we will strike them. 19 If they are in evidence, then the next question would 20 be, all right, should the government be required to do anything 21 further with them, here they are? Should the government be 22 required as part of its case to introduce anything further, in 23 further testimony, read anything to the jury? And that really 24 raises a couple of other questions. 25 The defendants, having argued against the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5473 499esat5 1 admissibility of the evidence, now say, as I understand it, on 2 reflection we think this is very helpful, which was not the 3 arguments that were being raised against the admissibility of 4 this evidence initially. But if that's -- if that really is 5 true, the evidence is out there. And why would the defendants 6 not present that evidence as part of their own case if, in 7 fact, they believe that the evidence is really helpful or 8 useful to the defendants? 9 The defendants have access to plainly all of this 10 evidence as well as all of the other recordings irrespective of 11 whether they're being played in the government's case. And if, 12 in fact, it is the substance of the calls because of references 13 to Montasser Al-Zayyat that the defendants think are useful or 14 helpful, why should the defendants not play that as part of 15 their own case? I simply raise that as a question if it's not 16 for the content of these calls or this call but rather to show, 17 look, there is this problem with this call, it's broken up. 18 And so the defendants may argue that that's relevant in some 19 way to considering the recording system. 20 Of course, there's been lots of -- there's been 21 testimony about that and the difference between this particular 22 call and other calls and what was done to this call so that the 23 relevance of that to other calls is at least a matter of 24 vis-a-vis a reasonable question; that is, at least another 25 issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5474 499esat5 1 The defendants also say, well, under 106 this call 2 really should be played at the same time as the other calls. 3 When the 106 argument was being raised last time, I think it 4 was in the context of a -- the prison visit, as to which there 5 certainly was a reasonable argument that that visit should be 6 heard at the same time. 7 With respect to this call, which is not a part of the 8 other calls but is a separate call that the government came to, 9 indeed it appears quite late, but in any event, the 106 10 argument would be a much more difficult argument. But that 11 only goes to when the call should be heard by the jury. 12 I just raise those as observations because the parties 13 didn't give me any letters. I invited letters yesterday on 14 that, and the parties made arguments to me. And if you give me 15 letters, you really should direct me to where, you know, 16 there's been testimony, argument over 1351 and individual files 17 on 1351. 18 MS. BAKER: Your Honor, the government will do as the 19 Court requests and submit a letter providing the specific 20 information that the Court has requested. 21 I think if the Court is willing to listen to me 22 briefly to start to answer some of the Court's questions it 23 would be helpful to us to get a little bit of further guidance 24 on how the Court views the procedural history here because I 25 think that will allow us to formulate an argument that will be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5475 499esat5 1 more helpful to the Court. 2 The procedural history relating to the CD 1315, which 3 is the CD that Agent Kerns made with the voc files on it, and 4 then its companion CD -- 5 THE COURT: I'm sorry. I've been referring to it as 6 1351. I should say 1315. OK. 7 MS. BAKER: Agent Kerns made 1315, which is the CD 8 with 12 voc files on it, and then Mr. Losinski enhanced those 9 recordings and made the other CD, which is 1315C. Both of 10 those witnesses testified to those facts on July 21st. 11 And then during colloquy out of the presence of the 12 jury, on that same date, July 21, the parties argued about the 13 admissibility of those two CDs. And ultimately the Court said 14 essentially, drawing on its prior rulings about admissibility 15 of other telephone calls, the Court said, and this is at page 16 4245 of the transcript, well, look, unless I hear a well 17 founded objection based upon the evidence and the arguments of 18 counsel, 1315 and 1315C are received in evidence for the 19 reasons that I have explained. And the defense wants all of 20 the call to be placed in and not part of it. So unless the 21 parties agree otherwise, all of the segments should go in; 22 similarly, so much of the actual recording as to show the jury 23 what the witness is talking about in terms of the segments and 24 the tone. 25 So that was what the Court stated out of the presence SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5476 499esat5 1 of the jury on July 21, 2004, at page 4254. 2 The government had not yet -- now I'm moving forward 3 to another date. The government had not yet reached the point 4 in its case where the government would have renewed its offer 5 in the presence of the jury of 1315 and 1315C, when 6 Ms. Stewart, through her counsel, Mr. Tigar, requested the 7 e-mail that he became aware that had been sent by Ms. Banout in 8 connection with one segment of this 13-segment call. 9 Thereafter, Mr. Tigar made -- and I don't know the 10 date of this, I'll have to find it in the transcript if the 11 Court needs it -- but Mr. Tigar made what the government 12 understood to be essentially a motion for reconsideration 13 asking your Honor to revisit the ruling admitting 1315 and 14 1315C unless Ms. Banout were recalled and gave certain 15 additional testimony and so on. 16 And at that time your Honor directed, and I don't 17 recall precisely how your Honor framed it, but said that 18 Ms. Banout should be recalled. And, again, the government 19 understood that to mean in pursuit of 1315 and 1315C and the 20 related transcripts remaining in evidence or being formally 21 admitted into evidence in front of the jury, that the 22 government would have to recall Ms. Banout to give certain 23 testimony that your Honor outlined on that occasion. 24 Since then, the government has moved past in its case 25 the point in the chronology that those calls related to. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5477 499esat5 1 government has decided that pursuit of the admission of those 2 calls is not of sufficient importance to the government's case, 3 and that resulted in the argument that occurred when I was not 4 here the other day and Mr. Barkow had written a letter relating 5 to the fact that Ms. Banout was going to testify today. So 6 those are the most recent occurrences relating to these 7 exhibits. 8 But I rose to say all of that because your Honor 9 started out by asking us questions essentially whether the 10 exhibits are in evidence, and if they are, if they can be 11 stricken and so on. And so it would be helpful to the 12 government, if your Honor is prepared to do so, to give us your 13 view of whether they are in evidence in light of the procedural 14 history that I've just outlined. 15 THE COURT: Mr. Tigar? 16 MR. TIGAR: First, the chronology question, that is to 17 say, has the government moved past June of 2000 so that it is 18 somehow unfair to apply a rule here that would say the 19 government must play these now if everything else is decided 20 the way it says they're in evidence. 21 Mr. Dember's letter of September 9th proffers a number 22 of newspaper articles to the Court, varying dates of June 15, 23 2000; June 15, 2000; June 19, 2000; June 23rd, 2000. So the 24 chronology question seems somewhat beside the point in terms of 25 inconvenience to the government. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5478 499esat5 1 Here's our view, however, of the procedural history to 2 which Ms. Baker refers. I knew, and I have known ever since 3 your Honor held that the authenticity determination had been 4 made, that the likelihood on the present record, including the 5 record made in support of these calls, of obtaining the Court's 6 decision that, no, the authenticity decision is reversed and 7 it's all going to go out, was slim. However, I am required to 8 ask these questions because I can make a record about it, but 9 really, as I have repeatedly said to the Court, I do this in 10 service of an argument about weight; so that I can go to the 11 jury at the end and say, be careful when you listen to these 12 calls. Be careful, because there are certain ways in which too 13 much reliance on what you can't hear could mislead you. Too 14 much reliance on these transcriptions and translations could 15 mislead you because you couldn't hear the words. 16 I asked after Ms. Banout had finished, and again, 17 about Ms. Benjamin, I made a Jencks Act request. That's what 18 really being talked about here; not so that I could overturn 19 your Honor's global authentication decision -- I had some hope 20 of that, I suppose, but very slim -- but so that I could 21 effectively cross-examine these translators about the problems 22 they faced in hearing what they heard. It was a 23 cross-examination that went to weight. 24 And if your Honor will recall, using Exhibit 3507E, 25 which was the chart prepared by Ms. Banout about how Arabic is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5479 499esat5 1 a gendered language, and in addition to being gendered puts a 2 marker at the beginning of sentences that indicates the tents, 3 how a drop out of one syllable could change the entire meaning 4 of other words. I thought that the Jencks material I was 5 getting would help with that inquiry. 6 It might help for some other motion that we're -- with 7 the other matters that Ms. Baker and the Court and I and others 8 have been working on, but that was what we wanted. I interpret 9 the record as being that these matters are in evidence. The 10 Court's ruled. And of course it was said in the letter, but 11 I'd like to make an analogy here. 12 It used to be, your Honor, that if we got a judgment 13 from your Honor, a ruling, and then the parties said, you know, 14 we don't need this anymore, let's get vacatur. We invested 15 considerable resources, your Honor, in obtaining a ruling on 16 admissibility. Those resources didn't belong to the government 17 nor to the defense. They were resources of the people, and we 18 asked that a judicial decision and judgment be made about 19 admissibility. And I'll find the case, I think it's 20 Justice Scalia's opinion a couple of terms ago. 21 I don't think we can take lightly a request that a 22 judicial judgment made after such deliberation should be set 23 aside. That, of course, assumes, which is our position, that 24 this was a ruling that these things are admissible. And it 25 also assumes, which is the case, that I didn't say, oh, I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5480 499esat5 1 moving for reconsideration of it, but rather that I was doing 2 what I announced I was doing all along. 3 That's our view of the situation. 4 THE COURT: As you know, I don't rule on anything 5 until I finally rule. The parties ask for certain views and I 6 give you views until I've finally ruled. I really -- based on 7 the argument, I don't place a lot of weight on the government 8 argument with respect to chronology. We've moved beyond 9 chronology, therefore, we don't seek to admit the individual 10 calls from 1315. 11 At the same time, I don't place a lot of weight on the 12 defendants' argument that the substance of the calls are really 13 very helpful to the defense. What would appear to be really 14 going on is that the government from its standpoint says the 15 value of these calls to us compared to the possible problems 16 with that call are just not worth it in terms of the probative 17 value of the call to the case. 18 And on the other hand, the defendant is saying, 19 defendants are saying, well, this would be useful to us not so 20 much really for the substance of the call, which the defendants 21 argued against initially admitting; but rather to show that 22 there are particularized problems with this call. 23 Now, that argument is not in the context of all of the 24 evidence itself a very weighty argument, in view of the 25 testimony about the unique technical problems with this call. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5481 499esat5 1 So, the defendants are really seeking to argue the 2 unreliability of this call as it goes to weight. And the 3 government is saying, we're not going to fight over this call. 4 And the effect on the other calls, as to which there is not 5 this history from the late aspect of the retrieval to the 6 separately being sent to be enhanced by Mr. Losinski and 7 separate testimony with respect to this, is not very strong, 8 but those are the considerations. 9 Do I think that the calls are -- do I think that 1315 10 and 1315C are in evidence? I have to check the transcript. I 11 would -- Mr. Barkow's letter says that the transcripts of those 12 calls were admitted into evidence, Government Exhibits 1147X, 13 et al. So whether 1315 and 1315C themselves are in evidence, 14 the transcripts of the audio files are in evidence and that 15 would be a pretty good indication that 1315 and 1315C are in 16 evidence. 17 And, you know, that leads then to Mr. Paul's question. 18 OK, they're in evidence. What's the basis to strike them from 19 evidence? Just because you admitted something in evidence and 20 then have second thoughts about whether it really should be in 21 evidence is not -- doesn't appear to be a basis to strike the 22 materials from evidence. 23 At the same time, that doesn't mean that in the course 24 of the government's case the government should be required, 25 simply because it sought the admission of and obtained SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5482 499esat5 1 admission of those documents, to admit them -- not admit them 2 but read them, have the jury listen to them. 3 And, again, without finally determining this issue, if 4 defendants believe that the impeachment with respect to these 5 exhibits -- if the defendants believe that the exhibits 6 themselves are really favorable to the defendants, then, even 7 though they argued against them, they could play them in the 8 course of the case in their own case and read them, if, as 9 Mr. Barkow says, the transcripts are in evidence. 10 And if they seek then to impeach -- having played the 11 call, they then want to impeach the reliability of the call 12 because they think that that would have an impact on the 13 reliability of other calls, that's something to be considered 14 also. The response to that, of course, would be that's why we 15 didn't play them. But those are the issues that I just -- in 16 my mind. 17 MR. TIGAR: I appreciate that, your Honor. Yes, 18 indeed these transcripts were offered in the presence of the 19 jury, that's our understanding. I think that what may be left 20 out, because I didn't hear it, is what do we do about the 21 cross-examination of Ms. Banout, which by definition was never 22 finished? And was the Court suggesting that perhaps the answer 23 to that would be that we would call her in our case? 24 THE COURT: That's one possibility. 25 MR. TIGAR: We would object to that because the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5483 499esat5 1 cross-examination was never finished. And although these 2 sponsorship rules about which -- when a witness appears in 3 whose case don't really govern, they certainly have a -- there 4 is a semiotic effect to the calling of a witness in -- by one 5 party who's identified with that party and that party's case. 6 The jurors understand that part of the adversary 7 process, and although there's no textual -- in the Jencks 8 Act -- guidance on this subject, short of striking the direct 9 entirety, that it seems to me that we would be entitled -- I 10 would say we'd be entitled to call Ms. Banout back and 11 cross-examine her some more in the government's case. 12 But precisely the reason the Court identified -- 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5484 499JSAT6 1 THE COURT: But did she testify as to the accuracy of 2 these transcripts? 3 MS. BAKER: No, your Honor. That is why we're in this 4 weird situation here. She was not the government's witness on 5 the call. Just for me to be absolutely clear, this one call is 6 a 13-segment call. 12 of the segments are on 1315 and 1315 C. 7 The 13th segment is on a different disc, I forget which one, 8 and Ms. Banout did do the transcription and translation of that 9 other segment on the other disc, and it was admitted based on 10 her testimony. 11 But the 12 segments on 1315 and 1315 C were 12 transcribed and translated by Victoria Benjamin and were 13 offered in evidence by the government based on her testimony, 14 which is why it was the government's view all along that there 15 was not a Jencks Act issue regarding Ms. Banout for those 16 segments of this call in the first place. 17 And so now we're in this awkward situation where the 18 government doesn't seek to pursue the calls. Mr. Tigar wishes 19 us to recall our witness who we never called in the first place 20 about these calls so he can cross-examine her about the calls 21 that we're not seeking to pursue. 22 MR. TIGAR: Actually, your Honor, there are two calls 23 that Ms. Banout sponsored. One was 1148 X, as I recall it, it 24 is on Government Exhibit 1000, and 1146 X, if I could read the 25 fax that I have here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5485 499JSAT6 1 Regardless of whether it is one or two, Jencks 2 material related to this witness was not produced. It took 3 days to get an accounting of why it wasn't and what it was. 4 Now we have the extraordinary spectacle of the government going 5 through all manner of gyrations to preclude us from 6 cross-examining based on the Jencks material that ought to have 7 been produced but was not. 8 Indeed, your Honor, one of the subjects of 9 cross-examination might well be why all the hoops were jumped 10 through with respect to these calls. Pretty interesting that a 11 translator would be summoned into the presence of some 12 Assistant United States Attorneys after recommending a call not 13 be used and so forth and so on. 14 Your Honor may not be impressed by that state of 15 events, but jurors might legitimately be impressed under that 16 chain of events under the very liberal standards under 4O1 and 17 402. 18 MS. BAKER: For the record, we object to Mr. Tigar's 19 characterization of what happened. There was no summoning of 20 any sort. Ms. Banout was prepped by the government for the 21 testimony she did give at this trial which didn't include the 22 other twelve parts of that call. 23 THE COURT: Did she testify with respect to the 24 translations of 1148 X and 1146 X? 25 MS. BAKER: Your Honor, Mr. Barkow is trying to find SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5486 499JSAT6 1 the relevant transcript portions so we can determine that right 2 now. 3 MR. TIGAR: On the 13th of July. 4 (Pause) 5 MR. TIGAR: 3598-3599 as to 1148 T, your Honor. 6 MS. BAKER: Your Honor, I stand corrected. Ms. Banout 7 testified about two of the total of 13 segments of that call. 8 The first is Government Exhibit 1146, which is the audio, and 9 1146 T and X are the full and excerpted transcripts. That 10 recording is on Government Exhibit 1000, the DVD 1000. 11 She also testified about Government Exhibit 1148, 12 that's the audio, and the corresponding full transcript, 1148 13 T, which was then introduced or marked in excerpted form as 14 1148 X. The audio for that one, 1148, appears both on 15 Government Exhibit 1000 and on Government Exhibits 1315 and 16 1315 C. 17 So Ms. Banout did two of the segments of that call, 18 but just to be absolutely clear, her E-mail which was disclosed 19 after her testimony -- excuse me one second. 20 (Pause) 21 MS. BAKER: Your Honor, I withdraw the last thing I 22 was going to say. Just so the record is clear, it is two out 23 of the total of 13 segments. The other 11 came in through Ms. 24 Benjamin. 25 THE COURT: And those are otherwise in, aren't they, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5487 499JSAT6 1 1146 and 1148? 2 MS. BAKER: 1146 and 1148 are audio files on 3 Government Exhibit 1000 would have been offered by the 4 government as part of its offer of Government Exhibit 1000. 5 But the government's offers of the recordings on the 6 discs was always phrased as we offer the recordings to the 7 extent that they are reflected in the excerpted transcripts 8 that we would later present. So I guess the technical answer 9 is yes, to the extent that 1146 and 1148 on Government Exhibit 10 1000 are reflected in X transcripts that were later received, 11 then, yes, they are in evidence. 12 THE COURT: But the transcript 1146 -- well, did 13 Ms. Banout also prepare 1146 X? 14 MS. BAKER: Your Honor, the translators in every 15 instance prepared the T transcripts and initialed the T 16 transcripts and authenticated the T transcripts in their 17 testimonies. 18 The X transcripts were prepared by the U.S. Attorney's 19 Office simply by excerpted out parts of the T's, and in some 20 instances there was negotiation with the defense to address 21 completeness issues. There really isn't a specific witness for 22 the X transcripts. 23 I believe that earlier in the trial the government had 24 had a stipulation that the X transcripts were excerpted from 25 but identical to the T's. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5488 499JSAT6 1 THE COURT: Okay. But 1146 T would have been 2 presented, would have been prepared by Ms. Banout? 3 MS. BAKER: Yes, your Honor. 4 THE COURT: And 1148 T? 5 MS. BAKER: Yes. 6 THE COURT: Also by Ms. Banout? 7 MS. BAKER: Yes. 8 THE COURT: Well, then, the government can consider 9 what it wants to do really with all of these transcripts and 10 B's audio files and get back to me. 11 As I said, I don't place a lot of weight on the issue 12 of the chronology. I don't place a lot of weight on the 13 argument that the substance of these calls are really what is 14 at issue in terms of helpfulness to the defense, and what we're 15 talking about is the defense request under the Jencks Act, to 16 be able to examine Ms. Banout with respect to this issue with 17 respect to her comments on these recordings, As to which there 18 has been a reasonable amount of testimony. 19 Now, that seems to me where things stand. That 20 doesn't mean that the government has to play all of these in 21 its own case or that if given the option, the defendants will 22 really play all of these in the defense case, but the 23 defendants have an issue with respect to cross-examination that 24 relates to a couple of portions of recordings that were 25 admitted that Ms. Banout worked on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5489 499JSAT6 1 You can think about where we go from here on that. 2 MS. BAKER: Your Honor, I am happy to tell the court 3 right now the outcome that the government seeks here, but I 4 suspect that the court wants a legal citation which obviously I 5 can't provide the court as I stand here. 6 The relief that the government seeks here is to be 7 permitted simply to continue its case from the point we're at 8 now and not to double back and deal any further with these 9 calls. 10 We offered the transcripts. The transcripts were 11 received of all 13 segments through the two different 12 translators, but none of them have been presented to the jury. 13 We don't intend to go back and present them to the jury. We 14 don't intend to recall Ms. Banout for any other evidence in the 15 case, and it is the government's judgment that we don't wish to 16 go back and revisit these calls further. 17 And so we ask to be permitted not to do that and not 18 to have to recall Ms. Banout for the sole purpose of having her 19 cross-examined about calls that we are not seeking to pursue. 20 We haven't presented them to the jury and we don't intend to 21 present them to the jury. 22 THE COURT: Okay. But then the issue would be why the 23 defendants should not be allowed to say okay, you don't want to 24 recall Ms. Banout, you don't want to play those other 25 transcripts, even though we think that those are useful because SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5490 499JSAT6 1 they relate to Muntasir Al-Zayat, and of course the defendants 2 can play that in their own case. We at least want to continue 3 our cross-examination of Ms. Banout on her comments with 4 respect to this evidence which is still in evidence. It is 5 part of our cross-examination of Ms. Banout, and we haven't yet 6 finished it. 7 We now have this additional material. You don't want 8 to recall her. We think we should be entitled to complete our 9 cross-examination of Ms. Banout on this subject. 10 MS. BAKER: Your Honor, the government's response to 11 that would be that further cross-examination of Ms. Banout on 12 this issue is irrelevant in light of the fact that the 13 government is not seeking to present these calls to the jury. 14 There is just no purpose to be served in 15 cross-examining her further on an issue that Mr. Tigar concedes 16 at best goes to weight, and the government's response is, it 17 only goes to the weight of those particular audio files, And so 18 the government is not presenting those to the jury, then 19 whatever weight should or shouldn't be accorded to those audio 20 files is not relevant to the government's case. 21 THE COURT: Yes, but once we get down to the issues of 22 weight and how relevant this is -- 23 MS. BAKER: Your Honor, if I might phrase it a 24 slightly different way? 25 Under Rule 403, it becomes confusing, time wasting and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5491 499JSAT6 1 prejudicial. Mr. Tigar has raised issues of weight. Indeed, 2 the very issue of the weight that should or shouldn't be 3 accorded to the recordings on 1315 and 1315 C have been 4 explored through the cross-examination that was conducted of 5 Agent Kerns when he authenticated 1315 and of Mr. Losinski when 6 he authenticated 1315 C, and there was cross-examination of Ms. 7 Benjamin, who was the person who prepared the translations of 8 the other 11 segments of the call. 9 So particularly given that the government is not 10 pursuing these calls, doesn't deem them as sufficiently 11 probative to be worth doubling back to, to double back solely 12 to have additional cross-examination that bears solely on the 13 weight of these recordings and not others fails under Rule 403. 14 (Pause) 15 THE COURT: The 403 argument is not a very strong 16 argument. The jury is well able to avoid confusion, and it is 17 not a lot of time that could possibly be spent on this, 18 particularly when the responses, for the reasons that I already 19 explained, are so readily understandable. 20 The 403 argument really does not give reasonable 21 credence to the jury. The jury can follow the differences 22 between this call and other calls, and if anything, it is not 23 clear to me that for the reasons that I explained, it is a very 24 weighty argument that the defendants seek to raise with respect 25 to this, for all of the reasons that I've explained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5492 499JSAT6 1 But, at the same time, the danger of confusion is just 2 not there, and certainly not substantially outweighed by the 3 danger of confusion. So you have some marginally relevant 4 information relating to some calls that the government doesn't 5 intend to rely on or play to the jury, and the government fears 6 that defendants will use it in an improper way, to run over 7 essentially into other, other calls as to which there was not 8 the kind of unique problems that were raised by this call and 9 don't have all of the testimony relating to this call. 10 But the arguments on both sides are not, not very 11 strong. Nevertheless, I can understand why there is some 12 relevance to this and why the defendants wish some 13 cross-examination with respect to this, and it is difficult to 14 see that there is a risk of confusion. 15 So the government can again consider what they wish to 16 do with this. One reason that I raise this where I did was 17 because I didn't get letters. I wanted to talk out the issues 18 with you and I wanted to give you some sense of what I thought 19 about the arguments on the government's side, analogy on the 20 defendants' side, the substance of the calls. 21 All right. That takes us to 540 T. Again, you're 22 welcome to give me -- I told you what my preliminary views are 23 on 1315 and the exhibits that are in evidence, and the 24 government can advise me what its proposal is to do. 25 540 T? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5493 499JSAT6 1 MS. BAKER: Your Honor, 540 T was one of several 2 exhibits addressed in the government's letter of this morning. 3 I just wanted to supplement that letter by drawing the 4 court's attention to two additional recorded calls that were 5 presented today, and those are Government Exhibits 1252 X and 6 1187 X. Those are two calls, I believe that they occur 7 back-to-back or, in any event, within minutes of each other. 8 They're both on October 6th of 2000, between Sattar and Taha. 9 The first one, 1252, occurs at 10:36 pm, and the 10 second one, 1870, occurs at 10:39 pm. In both of those calls, 11 Sattar and Taha discuss the article, which is Government 12 Exhibit 540, the translation of which is 540 T. 13 Just to remind the court, that is an October 6th, 2000 14 article in Al Hayat. It is headlined, according to the 15 translation, 540 T, Islamic reactions, Ali Ben Haj urges Jihad. 16 Sit-ins in London, Geneva and Frankfurt. The article was 17 authored by Muhammad Salah, based in Cairo for Al Hayat. The 18 article following the headlines states: 19 Cairo, Muhammad Salah. 20 In Government Exhibit 1252 X and 1187 X, Sattar and 21 Taha discuss the article and essentially how it came to be 22 published. In Government Exhibit 1252 X, starting on Page 1 23 line 10, Sattar says I saw Al Hayat, and then he continues on 24 Page 2 line 1, Al Hayat wrote about it. There is a reference 25 to the Abdel Rahman ghost-written fatwah, which was actually SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5494 499JSAT6 1 authored by Sattar and Taha. 2 Taha responds. Al Hayat covered it well, but it 3 didn't highlight the title. That is a reference to the fact 4 that although the body of the article in Government Exhibit 540 5 and 540 T reports on the Abdel Rahman ghost-written fatwah, the 6 title of the article I just read to your Honor, the title and 7 headline of the article does not reference Abdel Rahman or the 8 fatwah. 9 Basically in this call, 1252 and the next call, 1187, 10 Sattar and Taha are expressing pleasure, for lack of a better 11 word, that the body of the article gives coverage to the 12 fatwah, but disappointment that the headline of the article 13 doesn't draw attention to that fact. 14 Later, in 1252 X, they refer to Muhammad Salah and 15 essentially how he came to be the reporter who wrote that story 16 as opposed to a different Al Hayat reporter who is based in 17 London. 18 That discussion essentially continues in Government 19 Exhibit 11 87 X, where starting on Page 1 line 6, Taha says: 20 "I think he wrote the topic that way in defiance of you." Al 21 Hayat later replies: But I don't think that Mohammad has 22 anything to do with writing the topic. He is not the one who 23 writes the topics. 24 And then continuing on the next page, Page 2 line 2, 25 Sattar continues: He, meaning Salah, writes, meaning the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5495 499JSAT6 1 article, and the Board of Editors writes the topic. 2 So again they're talking about the fact that the 3 article was written by Muhammad Salah but that the topic or 4 headline which unfortunately doesn't announce all of the 5 contents of the article, apparently was supplied by the 6 newspaper's editors. 7 The government proffers those two calls in conjunction 8 with the other evidence supporting the admissibility of 540 T 9 which we had outlined at pages three to four of our letter of 10 this morning and as we said in our letter of this morning, the 11 government consents to an instruction in connection with this 12 translation, that the article is not offered for the truth of 13 its contents. 14 One additional legal matter, just to respond to the 15 letter submitted last night on behalf of Ms. Stewart, which 16 there seemed to be an argument that statements not offered for 17 their truth should somehow be scrutinized more closely on a 18 threshold question of admissibility than co-conspirator's 19 statements that are offered for their truth. 20 The government disputes that point and would cite to 21 the court the Second Circuit's decision in United States versus 22 Calarco, C A L A R C O, which is reported at 424 F.2d, at 657. 23 It is a Second Circuit decision from 1970, and at Page 66O of 24 424 F.2d, the court is discussing the standards or procedure 25 for admitting basically co-conspirator statements and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5496 499JSAT6 1 threshold evidentiary determination that the trial judge must 2 make. 3 But in the middle of talking about the process for 4 co-conspirator statements, the Second Circuit drops a footnote 5 and essentially contrasts what it is saying about 6 co-conspirator statements with other types of statements that 7 are not being offered for their truth. 8 And so the court makes reference to non-hearsay 9 evidence that was offered in that particular case, and in the 10 footnote discussing that non-hearsay evidence, the court says 11 the fact that the particular defendant gave an instruction to 12 other co-conspirators was relevant and admissible independent 13 of its contents an as a non-hearsay verbal act. It cites prior 14 Second Circuit authority. 15 So this case supports the proposition that while there 16 is the particular threshold finding that the court has to make 17 by a preponderance of the evidence standard for co-conspirator 18 statements which the court has been doing in this case by 19 making the determination and then given the subject to 20 connection instruction, that other types of statements are not 21 being offered for their truth; and, therefore, not subject to 22 that same analysis are not scrutinized more strictly. 23 THE COURT: I don't think you -- you all can correct 24 me -- I don't think the parties have given me a copy of 5450 T. 25 Did I miss it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5497 499JSAT6 1 The parties discussed this, but I am not sure that -- 2 MR. TIGAR: I am at the court's disposal, but I would 3 be pleased to address 540 T and even to do it in the context of 4 Mr. Dember's letter of this morning because I think these 5 issues are related. 6 MR. PAUL: Excuse me, Judge. I hate to interrupt, but 7 my client is asking permission to go on a break right now. 8 THE COURT: Absolutely. We'll take 10 minutes. 9 (Recess) 10 THE COURT: Please be seated, all. 11 MR. BARKOW: Mr. Dember had to go back to the office 12 to get something. He will be handling the Stewart search 13 issues. He said we could start, if there are other things, 14 without him and he would be back shortly. 15 THE COURT: All right. Okay. 16 Mr. Tigar, 540 T. 17 MR. RUHNKE: I was going to begin addressing 540 T, if 18 I may? 19 The factual background of this I think everybody 20 agrees on, that this was not a statement issued in fact by 21 Sheikh Rahman but, in fact, it was a statement issued by other 22 people, allegedly Mr. Sattar, Mr. Taha, so that it appeared as 23 if it had come from Sheikh Rahman. 24 My premise is that this cannot be admissible against 25 Mohammad Yousry. That is my primary point, if I may. I know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5498 499JSAT6 1 that it is alleged as an overt act, part of the Count 1 2 conspiracy. 3 Even trying to follow the government's argument on 4 that issue, it doesn't make sense. The statement in question 5 was -- and I think as the tapes made crystal clear and I think 6 as the English language tape that is going to be played next in 7 the government's case will make even more clear -- is that 8 Mr. Yousry, in the course of reading newspaper articles, as he 9 has done time and time and time again, was reading articles to 10 Sheikh Rahman and came across this statement attributed to him. 11 As both sides I think agree, even the headline on the 12 article gave no hint that contained in the body of the article 13 was a statement that was attributable to Sheikh Rahman. Upon 14 reading the article, Mr. Yousry questioned Sheikh Rahman about 15 how did you do this? How did you get these statements out? 16 He says he will advise Ms. Stewart and Mr. Clark what 17 is coming across. Sheikh Rahman says in English, I think was 18 loudly heard on the tape, that is none of Mr. Yousry's business 19 as to where this statement came from, and then there is going 20 to be subsequent conversations I think on October 20th, there 21 was a call to Mr. Jabara with a further discussion of what 22 ought to be done about the fact that this statement has 23 appeared in the press and has been attributed to Sheikh Rahman. 24 Count 1 charges a conspiracy to defraud the United 25 States, in essence by violating the SAMS, S A M S, essentially SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5499 499JSAT6 1 a 371 conspiracy against the government. The way this comes 2 out in a factual context is not as part of any scheme to 3 violate any administrative measures because it was not a 4 statement made by Sheikh Rahman in the first instance. In 5 effect, it was a statement made to look like it had been issued 6 by Sheikh Rahman. 7 One can argue it was a statement made to look like it 8 had been issued in violation of the SAMS in reality. 9 But the facts are exactly the opposite, that 10 Mr. Yousry had nothing to do at all with this statement 11 appearing in the press. It wasn't a statement that was issued 12 from Sheikh Rahman's prison cell; and that, therefore, it ought 13 not to be admitted against Mr. Yousry. 14 The contents of the communication, if linked to 15 Mr. Yousry, are particularly prejudicial. I mean, there has 16 been -- it is hard in a case that has had examples of hate 17 speech on several occasions to set up a hierarchy of hate 18 speech, but this is a particularly hateful piece of speech. 19 So that the idea of it being well not particularly 20 damaging if it is attributed in any way to Mr. Yousry is not 21 present. If we are going to do a 403 balancing, the degree of 22 prejudice is on this kind of statement is going to be 23 exceedingly great. The question then is whether the degree of 24 the prejudice and the probative value of the evidence as to 25 Mr. Yousry is substantially outweighed by the danger of that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5500 499JSAT6 1 prejudice being unfair, your Honor. 2 It is our view that this is not and cannot and should 3 not be considered as a statement attributable to Mr. Yousry in 4 furtherance of the Count 1 conspiracy since he had nothing to 5 do with it, didn't author it, did not come -- it did not come 6 out of the prison. It was basically a fictitious document 7 issued in the name of the Sheikh by other people. 8 I think that same argument would carry over to Ms. 9 Stewart as well. That is not my position to argue on behalf of 10 Ms. Stewart in this situation. We object to it coming in as 11 part of the Count 1 conspiracy as to Mr. Yousry. 12 MR. TIGAR: On behalf of Ms. Stewart, I would add 13 these words: 14 The false fatwah is alleged as an overt act or a 15 series of overt acts in Paragraph 30 of the indictment as to 16 Count 1. It is also alleged, or those acts are also alleged in 17 the what I have called the charging portion of Count 2 as well 18 as in the overt acts in Count 2. I am just making sure that is 19 right -- yes. 20 So there is a difference in those two counts as to how 21 it is treated. So when we asked ourselves the question of 22 relevance, I look at the charging portion of Count 1 which 23 Mr. Ruhnke referred to that is a conspiracy to defraud the 24 United States by violating, obstructing the SAMS. 25 The government says, in the letter sent this morning, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5501 499JSAT6 1 that the connection here is that Sattar, Taha and Al-Sirri 2 drafted the fatwah in Abdel Rahman's name and had it published 3 with the purpose of subsequently having Abdel Rahman adopt it. 4 That is their alleged connection. 5 Your Honor, that's why we wrote the letter we did last 6 night. We did not say and do not say that the legal standard 7 for admitting acts as distinct from statements for the purposes 8 of vicarious liability is different. They both involve 9 questions of conditional relevance under what is now Federal 10 Rule of Evidence 104. 11 As footnotes 1 in Bourjaily points out, the court 12 declined to specify a procedure and declined to specify a risk 13 of non-persuasion for the presiding judicial officer to have 14 met with respect to Rule 104, conditional relevancy 15 determinations. 16 But we are not able to find a case that would sustain 17 admission into evidence of something that is an act as distinct 18 from a declaration or statement without a Rule 104 finding that 19 it was during and in furtherance because there is no question 20 here that Ms. Stewart and Mr. Yousry didn't have anything to do 21 with issuing the fatwah. 22 That was the procedural point we were making, but the 23 root of it is, your Honor, that this statement, the issuance of 24 the false fatwah doesn't have anything logically to do with 25 what Count 1 is supposed to be about and what it says it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5502 499JSAT6 1 about, which raises all sorts of other legal issues. 2 Moreover, when we look at the text of 540 and 540 T, 3 it is a hearsay statement containing all sorts of hearsay 4 utterances about this and that, and so the government is 5 reduced to saying well, to some extent somebody might have been 6 aware of it; and, therefore, it comes in. 7 But awareness doesn't translate into tenancy to prove 8 any fact genuinely in issue, and certainly Ms. Stewart's 9 connection with it is exactly zero in connection with this 10 newspaper article. 11 That, of course, takes us to the Count 4 analysis, if 12 the government comes up with that. Ms. Stewart can't be liable 13 for anything she doesn't know about unless some rule of law 14 says that she is, and the only rule of law invoked by the 15 government simply lacks any provable basis within the meaning 16 of the conditional relevancy. 17 MS. BAKER: As the court is undoubtedly aware, the 18 very essence of conspiracy law is that co-conspirators are 19 liable for each other's conduct committed during the course of 20 and within the scope of or in furtherance of the conspiracy. 21 That is the government's theory as to the admissibility of 22 evidence relating to the ghost written fatwah as to both Counts 23 1 and Count 4. 24 Count 1 charges the defendants with conspiring to 25 defraud the United States in its administration of the special SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5503 499JSAT6 1 administrative measures imposed upon Abdel Rahman. The whole 2 point of the special administrative measures was to keep Abdel 3 Rahman from being able to continue to solicit or direct 4 terrorist activity from jail. 5 And that is what Abdel Rahman did with this 6 ghost-written fatwah, notwithstanding the fact that he was not 7 the person who originally put pen to paper or fingers to 8 keyboard to craft the wording of it. 9 What happened here, as demonstrated by the telephone 10 calls, including the series of calls between Sattar and Taha in 11 early October of 2000, including the two October prison calls 12 which are Government Exhibits 1732 T and 1733 T, and as 13 recounted after-the-fact between Stewart and Yousry in the 14 upcoming English-language call, which is Government Exhibit 15 1193, for which the excerpted transcript is 1193 X. 16 The sequence of events depicted in that evidence is 17 that Sattar and Taha, with some assistance from Al-Sirri, ghost 18 write this fatwah in Abdel Rahman's name about the situation in 19 Palestine and urging that Jews should be killed everywhere 20 because of the situation in Palestine. 21 In one of the calls, Sattar makes clear that in 22 drafting the fatwah, he is drawing upon a previous fatwah 23 actually written by Abdel Rahman in the early 90's relating to 24 Palestine and the duty of Muslims to kill Jews in connection 25 with the situation in Palestine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5504 499JSAT6 1 Indeed, that fatwah was found during the search of 2 Sattar's residence, but it is not a piece of evidence that the 3 government has offered in the trial so far. 4 So the fatwah is very carefully written to be in 5 accordance with previously expressed views of Abdel Rahman, and 6 no sooner is it written and widely disseminated by Sattar and 7 Taha and Al-Sirri working together, that Sattar arranges 8 essentially for Yousry to present the ghost-written fatwah to 9 Abdel Rahman, for Abdel Rahman to have the opportunity to adopt 10 it, which is, in fact, exactly what happens. 11 As recounted in the October 6th prison call, 12 Government Exhibit 1732 T, and then as recounted after-the-fact 13 by Yousry himself in Government Exhibit 1193 and 1193 X, Sattar 14 contacts Yousry and tells Yousry to buy two particular 15 newspapers which have stories setting forth the ghost-written 16 fatwah; namely, Al Hayat and Asharq Al-Awsat and to read those 17 to Abdel Rahman in the October 6th, 2000 prison call. 18 Yousry is unable to find Asharq Al-Awsat, but he finds 19 Al Hayat and he does read it to Abdel Rahman, and Abdel 20 Rahman's reaction is precisely what Sattar and Taha were 21 wishing for because Abdel Rahman says don't deny this, don't 22 disavow it. 23 Yousry, it is none of your business how it happened, 24 but tell everybody not to deny it because it is good or it is 25 true. I don't remember exactly how he phrases it. That is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5505 499JSAT6 1 exactly the conversation that is recounted between Yousry and 2 Stewart in Government Exhibit 1193, as reflected in the 3 transcript 1193 X. 4 For example, at Page 12, after Yousry has recounted 5 the sequence of events to Stewart, Stewart says we have no idea 6 how it happened. Yousry replies: Yeah, that is true. Stewart 7 says: But he did not disavow us. Yousry says: No, he didn't. 8 Stewart says: And even if it was done by a third party and he 9 wants to adopt it, and Yousry says that's fine. 10 And Stewart says: For whatever reason, to drive them 11 crazy or whatever, I'm for it. I, I see exactly what it's 12 about. 13 So this conduct is part and parcel of the violating of 14 the SAMS. It is an improper communication essentially from 15 Abdel Rahman's terrorist followers being sent in to Abdel 16 Rahman in the prison so that he can respond to it. 17 Sattar and Taha draft it, they sent it in via Yousry. 18 Abdel Rahman adopts it and says to everybody don't disavow it 19 because it is good or it is true. 20 It is par for the course of conduct, essentially a 21 course of conduct that includes communications coming out from 22 Abdel Rahman in '99 not to form a political party, that he 23 doesn't support the cease fire any more. That comes out in 24 early '99 originally but doesn't become public at that time. 25 Then in June of 2000, now he doesn't support the cease SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5506 499JSAT6 1 fire any more and that becomes public, and this is just yet 2 another instance in the course of conduct of messages going 3 into him, him reacting to them, and that reaction being traded 4 upon by his associates and followers in the outside world. 5 So this conduct is the very epitome of conduct 6 defrauding the United States in its attempt to use the SAMS to 7 prevent Abdel Rahman from continuing to participate in 8 terrorist activity from jail. 9 Even if one were to assume arguendo that Yousry or 10 Stewart knew knowing about this ghost-written fatwah in 11 advance, and assuming arguendo Mr. Ruhnke is correct, that 12 until Yousry was sitting there on the October 6th prison call 13 reading the Al Hayat article, that he knew nothing about it, 14 that is not the relevant legal inquiry here because it's 15 conduct in furtherance of the conspiracy, committed at a 16 minimum by co-conspirators Sattar and Taha and Al-Sirri, and 17 Stewart and Yousry are liable for their co-conspirator's 18 conduct. 19 In addition, reading these news articles to Abdel 20 Rahman, keeping him abreast of terrorist activity are 21 themselves violations of the SAMS. The fact that Yousry uses 22 this October 6th prison call to read to Abdel Rahman these news 23 articles about this sort of status of terrorist activity around 24 the world is, in the government's respectful submission, a 25 itself a violation of the SAMS. But Yousry and Stewart at a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5507 499JSAT6 1 minimum after-the-fact, even assuming arguendo that they didn't 2 know about the ghost-written fatwah in advance, just like Abdel 3 Rahman, essentially get on board with his adoption and 4 endorsement of it, and that is exemplified by Government 5 Exhibit 1193 and 1193 X. 6 At a later point in the conversation, you have 7 Stewart, who actually says in that call, after Yousry has 8 recounted the fact that Ramsey Clark seems to have reservations 9 about some of the conduct that is going on or disapproving of 10 some of the conduct that is going on, Stewart responds: 11 Well -- sorry. This is at Page 13, lines 18 to 19 -- well, if 12 I'm in a different position. My position is "yes, he's going 13 to get his message out no matter what." 14 So at best for the defendants they are liable under 15 the law of conspiracy for their co-conspirator's conduct in 16 furtherance of the conspiracy, but the government submits that 17 the evidence shows that they essentially adopt and begin to go 18 along with that conduct even if they only learn about it once 19 it's essentially already in progress by virtue of earlier 20 conduct by Sattar and Taha and other co-conspirators. 21 Again, it is the very heart of what the government was 22 seeking to prevent from imposing the SAMS, so it is clearly 23 relevant to him within the scope of Count 1 and equally 24 relevant to and within the scope of Count 4, which is the 25 conspiracy to provide material support to the conspiracy to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5508 499JSAT6 1 kill and Kidnap. It is a ghost-written fatwah that says kill 2 Jews everywhere. 3 And once Stewart and Yousry learn about it, even if 4 they learn about it after it was written by Sattar, after it 5 was adopted by Abdel Rahman, they comply with Abdel Rahman's 6 order, instruction, directive not to deny it because he has 7 adopted it, because he believes it is true and it is good. 8 MR. RUHNKE: Your Honor -- 9 MS. BAKER: I just wanted to provide the exhibit 10 citation for Abdel Rahman's adopting or endorsing of the 11 ghost-written fatwah. In Government Exhibit 1733 T, which is 12 the transcript of the October 20th prison call, you have 13 discussion about this subject again among Abdel Rahman, Yousry 14 and Abdeen Jabara. 15 At Page 20 lines 5 through 8, you have Abdel Rahman 16 saying -- he says essentially to close down this chapter, what 17 I would take to mean this final word on the subject is, and now 18 quoting from the transcript, "don't negate it and don't affirm 19 it, either, because it is a good thing what was said. It is 20 true that I did not say it, but it -- but it is good." 21 MR. RUHNKE: There are a couple of factual points. 22 What Mr. Sattar had said, according to the paper, 23 according to the conversations, was they want to purchase 24 Asharq Al-Awsat newspaper in addition to the newspapers usually 25 purchased, which include Al Hayat. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5509 499JSAT6 1 They did, in fact, purchase Asharq Al-Awsat, as the 2 translation of the conversation makes clear, and there was 3 nothing in it. There was a good deal of discussion about gee, 4 why was Sattar asking me to buy this paper? There is nothing 5 in it. And then he moves on to start to reading Al Hayat and 6 essentially stumbles across this statement. 7 Now, on the October 11 telephone conversation, which 8 is the next one that is coming up, essentially Mr. Yousry, as 9 the interpreter, tells Ms. Stewart what her conversation was if 10 the statement was included, what her conversations were -- 11 THE COURT: What his conversations were? 12 MR. RUHNKE: What his conversations were with the 13 Sheikh and what the Sheikh told him. There is a suggestion 14 that he had been trying to reach Ms. Stewart for a couple of 15 days, and she had not been returning the phone calls, and that 16 he discussed it with Mr. Clark, who had advised Mr. Yousry, 17 also discussed it with Ms. Stewart. 18 The next thing that happens is the October 20 prison 19 call, which you will hear coming up, in which everybody agrees 20 that nothing should be said about it. It is kind of the 21 antithesis of a violation of the SAMS. They don't put out his 22 statement. They don't say anything. 23 I suppose if they put out a statement saying the 24 Sheikh denies that he made this statement, that could be 25 interpreted as a violation of the SAMS. Not putting out the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5510 499JSAT6 1 statement that the Sheikh doesn't doesn't deny it is also 2 viewed by the government as a violation of the SAMS. 3 Although the government makes the argument that, well, 4 anyway, it is a violation of the SAM to have read newspaper 5 articles to the Sheikh, clearly that is not the thrust of the 6 violation that they are alleging here. 7 That is all this is about, he read a newspaper article 8 about discoving water on Mars; and, therefore, advising the 9 SAMS or news about the status of things in the Middle East. 10 That is not how this fatwah is charged. If that is all the 11 government is attempting to show here, fine. I am sure we can 12 agree upon some kind of stipulation that would cover that 13 situation. 14 The government is saying basically that this whole 15 discussion of the fatwah was somehow a violation of the SAM 16 conditions put in place. 17 I know it is an argument for the jury later on and for 18 Rule 29, it seems crystal clear nobody associated with this 19 case among the attorneys thought there was anything wrong with 20 reading newspaper articles. You saw on the video cameras 21 overhead shots of newspapers sprayed out in the visiting room 22 at Rochester with the guards two or three feet away. No one is 23 taking the position they're doing anything wrong by reading 24 newspaper articles to the Sheikh, whatever it was that the SAMS 25 required. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5511 499JSAT6 1 It is this fatwah attributing it as a SAM violation to 2 Mr. Yousry as part of the Count 1 conspiracy where I think the 3 government's position is wrong. 4 Whether it is part of the Count 2 or Count 3 5 conspiracy or the Count 4 conspiracy is an issue that I don't 6 have to address. 7 THE COURT: Why not? 8 MR. RUHNKE: Because we are not charged in Counts 2 or 9 3 or 4, Mr. Yousry. That is not my problem, in a sense. 10 I am just saying Count 4 is -- I am sorry. I am 11 charged in Count 4, but not Counts 2 and 3. What I am saying 12 is that -- let me just look at Count 4. 13 THE COURT: Yes. Yes. It is okay. 14 Paragraph 37. 15 MR. RUHNKE: The providing material aid charge in 16 Count 4. It is whether this should be admissible against 17 Mr. Yousry and inferentially essentially Ms. Stewart, but it 18 has nothing to do with them. They didn't do anything about it. 19 It was the government's theory, it seems to be borne 20 out by the tapes cooked up by other people, cooked up by other 21 people, discovered after-the-fact and then nothing happened. 22 That is the reality of that situation. I don't think it should 23 be offered against my client. 24 THE COURT: Let me ask you a practical question. 25 540 T is offered not for the truth of anything that is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5512 499JSAT6 1 said in 540 T. It discusses the fatwah. The transcripts are 2 clear as to how the fatwah appears to have come about. 3 With respect to the article itself, the transcripts 4 reflect that Mr. Yousry reads the article to Sheikh Rahman in 5 prison and they discuss it. Thereafter, Mr. Yousry discusses 6 it with Ms. Stewart, and they discuss what Sheikh Rahman, 7 Rahman's view of the fatwah is. 8 The fatwah itself and the circumstances of the fatwah 9 are alleged explicitly as overt acts in furtherance of Count 1, 10 Count 2 and Count 4 conspiracies. But in ruling on the 11 evidence, I would not instruct the jury on any of that. 12 I am faced with a newspaper article which is being 13 offered not for the truth of anything that is said, the 14 newspaper article that appears to be reflected in the 15 transcript of what Mr. Yousry read to Sheikh Rahman. 16 It is offered not for the truth of what was said in 17 the newspaper article. Even before I reach -- and I should 18 tell you that I think that the arguments are persuasive that it 19 is as charged in the indictment, that there is sufficient 20 evidence that it is an overt act in furtherance of the 21 conspiracies charged, but even before I reach that, I have a 22 newspaper article that is being offered not for the truth. 23 Mr. Yousry plainly knows about that and reads the 24 newspaper article to Sheikh Rahman. What is it that you're 25 asking me to do? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5513 499JSAT6 1 You're asking me to instruct the jury not to consider 2 that against Mr. Yousry, who knows about the newspaper article 3 and reads it to Sheikh Rahman, as was reflected in the 4 transcript that the jury has heard? 5 MR. RUHNKE: The short answer is yes, yes, because it 6 is not part of the conspiracy charged in Count 1. 7 I understand your Honor's point or I take your Honor's 8 point that you're persuaded that it is an overt act in 9 furtherance of the conspiracy. If that is the case, I am 10 wasting my time and your time. 11 THE COURT: Please, you haven't. First of all, you 12 haven't wasted my time; secondly, you never waste my time. 13 As I have tried -- 14 MR. RUHNKE: One simple thing I thought your Honor's 15 question was going to be, why can't I tell the jury it is 16 admissible against Mr. Yousry subject to connection and I don't 17 have an answer to that? 18 THE COURT: It is not only a question of subject to 19 connection. The newspaper article is relevant for a whole 20 series of reasons, including, among other things, Mr. Yousry's 21 state of mind, knowledge, intent. He knows about it, he reads 22 it, he reads it to Sheikh Rahman in the course of a telephone 23 call with the Sheikh. 24 MR. RUHNKE: A telephone call ostensibly supervised by 25 one of the attorneys subject to the conditions of the SAM, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5514 499JSAT6 1 which means -- telephone conversation supervised by one of the 2 attorneys who is subject to the SAMS, to which Mr. Yousry is 3 not. . 4 THE COURT: But my question was simply, even putting 5 aside for a moment the issue of overt act, the fatwah being an 6 overt act in furtherance of the various conspiracies, the 7 article itself is not offered for the truth of what appears in 8 the article, and it is relevant to Mr. Yousry's knowledge, 9 intent and state of mind, having read the article and having 10 read it to Sheikh Rahman and then, indeed, having discussed it 11 subsequently with Ms. Stewart. 12 So what would the instruction from your standpoint be? 13 It certainly couldn't be that the jury couldn't 14 consider the article against Mr. Yousry because it's relevant 15 to any one of a number of reasons with respect to Mr. Yousry. 16 MR. RUHNKE: Your Honor, in terms of knowledge, intent 17 and state of mind on the Count 1 conspiracy, if this is, 18 indeed, not under any circumstance a violation of SAMS because 19 nobody ever disseminated this article, at least Mr. Yousry 20 didn't, how does it bear -- I ask the court, how does it bear 21 upon his knowledge, intent and state of mind? 22 The same thing is true with the Count 4 conspiracy. 23 If this comes out of the clear blue sky to him, what does it 24 mean to his knowledge, intent and state of mind? There are 25 some people out there putting this together. I am not clear SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5515 499JSAT6 1 from the evidence whether they ever find out where this came 2 from. 3 MS. BAKER: Your Honor, the government relies on the 4 force of the arguments I articulated earlier, and I think what 5 I am about to say is wholly beside the point, but one 6 additional fact to meet what Mr. Ruhnke just rose to say is 7 that Counts 1 and 4 conspiracies continue into 2001 and, 8 indeed, into the beginning of 2002. 9 During the July 2001 prison visit, Yousry and Stewart 10 engage in further conduct, that is overt acts in violation of 11 those two conspiracies, and so their states of mind with 12 respect to Abdel Rahman and his views continue to be relevant 13 all the way through to the end of the charged ends of those 14 conspiracies, which are later dates. 15 So here the fact that Abdel Rahman has read this 16 article and reacts to it by essentially ratifying it obviously 17 is relevant to Mr. Yousry's state of mind for the additional 18 reason that he continues to participate in the charged 19 conspiracies thereof. 20 MR. TIGAR: Speaking on behalf of Ms. Stewart, your 21 Honor -- and I won't repeat -- on August the 3rd, 2000, 22 Mr. Fitzgerald wrote to Ms. Stewart and said that he thought it 23 would be a violation of the SAMS for any view of Sheikh Rahman, 24 positive, negative or neutrally with respect to articles to be 25 issued. That relates to Mr. Ruhnke's observation of the fact SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5516 499JSAT6 1 they don't issue a statement he likes it or he doesn't like it 2 or whatever. 3 Of course, if your Honor is convinced that there 4 really isn't a problem here about whether this overt act is in 5 furtherance, then if the evidence comes in, and there would be 6 an instruction that this is a newspaper article not received 7 for its truth, but with respect to the first inquiry about what 8 your Honor expressed that view, there are three conspiracies 9 charged in this indictment. 10 The government did not choose to charge a single 11 conspiracy with multiple objects. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5517 499esat7 1 MR. TIGAR: Which it might have done, if it thought it 2 had the evidence. 3 And from the very beginning of the case, the problem 4 for us has been to ask, what is the distinction between or the 5 distinction among the Count 1, the Count 2, the Count 4 6 conspiracies? And where there is an overlay of alleged overt 7 acts, this problem becomes particularly acute. 8 And while I take what your Honor says about the 9 findings that you feel that you might be prepared to make -- 10 and I don't want to prejudge or, you know, to say things that 11 your Honor hasn't said, but we do think that there ought to be 12 a clear distinction. 13 A conspiracy to defraud the United States with respect 14 to the SAMs relates to an interaction with Omar Abdel Rahman 15 and the discussions and issuing statements and so forth and so 16 on, as to which we have a defense that we have announced from 17 the beginning of this case. We've always said what it is. We 18 made very clear what it is. The government has briefed it. 19 The Court has answered it has invoked Dennis and Bryson and so 20 on. 21 Then there is the Count 2 conspiracy, to kill or 22 kidnap persons in a foreign country. That's serious business; 23 not that defrauding the United States is not, but that's 24 serious business. 25 Then there's Count 4, which, as your Honor has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5518 499esat7 1 repeatedly pointed out, raises a severance problem because, 2 after all, if Ms. Stewart were on trial by herself, there would 3 have to be some Count 2 evidence. But, we would say, there 4 couldn't be Count 2 evidence with respect to events that she 5 didn't know about, conversations she didn't know about, except 6 to the extent that they were embraced within the Count 4 7 conspiracy. 8 But there has to be some limit there. You couldn't 9 just prove a conspiracy out in the world of which she had no 10 knowledge. There would be -- there would be some difficult 11 evidentiary issues here. 12 But what we're trying to do -- and maybe at the end of 13 the day this is the wrong exhibit to do it in. 14 THE COURT: I was going to say, this is an exhibit and 15 a series of overt acts as to which, as you say, there are 16 alleged to be overt acts in furtherance of the Count 2 17 conspiracy and as to which Ms. Stewart had knowledge, alleged 18 to have knowledge. 19 MR. TIGAR: Yes. But knowledge, your Honor, is in 20 furtherance. 21 The point is this: There are overt acts in the 22 Count 1 and in the charging part and overt acts in Count 2. 23 And the risk is, your Honor, you know, whoever drafted that 24 fatwah may very well be a part of some Count 1 conspiracy. It 25 is alleged that that is so. But they are also in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5519 499esat7 1 government's view part of a different simultaneous, virtually 2 simultaneous -- by the time I get to 99 they are 3 simultaneous -- conspiracy to commit this other offense. 4 And therefore to say, as the letter does and as the 5 government does, well, you know, somebody's a member of the 6 Count 1 conspiracy and they did this and therefore that weighs 7 in the scale with respect to furtherance concerning these overt 8 acts not only doesn't answer the question, but it raises this 9 specter. And maybe this specter doesn't belong at this 10 banquet, but it is the McDermott, Cambino, Valencia, Figueroa 11 problem for us. 12 And maybe this is not the procedure hour and I should 13 press this on your Honor if, after all, at the end of the day 14 the exhibit is coming in with an instruction that it's not 15 admitted for its truth. But I say to the Court that that is 16 the basis of a very real concern that we have here: The notion 17 that if you're going to bring these disparate conspiracies 18 here, policing the lines between them is particularly 19 important. 20 And at the end of the day, even though your Honor has 21 said in Dennis and Bryson you wouldn't listen to First 22 Amendment arguments, the Count 1 conduct does partake a First 23 Amendment type activity to an extent that could not be said of 24 the Count 2 conduct. And that enhances, it seems to us, the 25 need to stand up and argue and take a lot of time about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5520 499esat7 1 something that seems to us to be very important. 2 THE COURT: As I said to Mr. Ruhnke, I never begrudge 3 arguments on it, I give counsel as much time as they want. 4 As I've also made clear, however, in the course of my 5 questions and colloquy, I'm unpersuaded by the arguments 6 against the admissibility of 540T. And so I've considered the 7 arguments against the admissibility of 540T and the arguments 8 that are raised are overruled. 9 First, to the extent that there is a hearsay problem 10 with respect to 540T, 540T is not offered for the truth of 11 anything that is said in the article. And I will give an 12 appropriate limiting instruction. If the parties believe that 13 a further instruction is necessary, I will consider such an 14 instruction. 15 But 540T is not offered for the truth of anything 16 that's said. It's relevant for the reasons that I have 17 explained. It's read by Mr. Yousry to Sheikh Rahman. It's 18 discussed with Sheikh Rahman and subsequently discussed with 19 Mr. Yousry and Ms. Stewart. It goes to their knowledge, intent 20 and state of mind. The underlying fatwah, there is more than 21 sufficient identification in the transcripts for this 22 provenance and the involvement of both Mr. Sattar and Mr. Taha 23 in the drafting of the fatwah. 24 There are some other arguments that have been raised. 25 There is an argument as to whether it should be received SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5521 499esat7 1 subject to connection, but there is more than sufficient 2 evidence to receive the exhibit and without any limitation to 3 subject to connection. And subject to connection is usually 4 used with respect to the issue of coconspirator hearsay or 5 nonhearsay under Federal Rule of Evidence 801(d)(2)(E). 6 This newspaper article and the underlying fatwah is 7 not being received for the truth of what is being said. There 8 is an argument that's been raised as to whether the underlying 9 series of acts should really be considered to be overt acts in 10 furtherance of the Count 1 conspiracy. The underlying acts are 11 charged as -- at least to some degree as overt acts in 12 furtherance of the Count 1 conspiracy, the Count 2 conspiracy 13 and also the Count 4 conspiracy. And Ms. Stewart and 14 Mr. Ruhnke have focused on whether these are also -- whether 15 these really are overt acts in furtherance of the Count 1 16 conspiracy. 17 There is more than sufficient evidence that they are 18 part of the overt acts in furtherance of the Count 1 conspiracy 19 as alleged. They are part of the course of conduct to defraud 20 the government in the administration of the SAMs as alleged in 21 Count 1. The conduct in connection with the fatwah indicates 22 that the fatwah was attributed to Sheikh Rahman, that 23 Mr. Yousry reads that to Sheikh Rahman and thereafter explains 24 to Ms. Stewart that Sheikh Rahman did not want his attorneys to 25 deny that he issued the fatwah. Indeed, the subsequent SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5522 499esat7 1 conversation between Ms. Stewart and Mr. Yousry indicates that 2 Sheikh Rahman did not disavow the fatwah, and even if it was 3 done by a third party, he wants to adopt it. And Mr. Yousry 4 said, that's fine. 5 The end result of all of this is that from prison 6 Sheikh Rahman has attributed to him with the participation of 7 Sheikh Rahman, Mr. Yousry and Ms. Stewart a fatwah, as alleged 8 in paragraphs 30(w) to (bb) of the indictment. 9 The indictment thus alleges acts by which the contact 10 with Sheikh Rahman was used to associate Sheikh Rahman with the 11 October 2000 fatwah in violation of the SAMs and in furtherance 12 of the conspiracy to defraud the government and the 13 administration of the SAMs. It's argued that these acts and 14 the fatwah itself should be excluded under Rule 403. But this 15 is a case in which the relevance of those acts is not 16 outweighed by the danger of unfair prejudice or confusion. The 17 acts themselves are highly relevant and relevant to several 18 counts in the indictment. 19 Finally, I went through with the parties the issue of 20 what the defendants would have asked me to do in the 21 alternative. We're dealing here with the admissibility of the 22 Government Exhibit 542, which as I said is relevant, and to 23 knowledge, intent and to state of mind of Mr. Yousry. It is 24 then discussed with Ms. Stewart. It reflects matters that are 25 relevant to her state of mind. It also plainly relates to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5523 499esat7 1 matters relevant to the knowledge, intent and state of mind of 2 Mr. Sattar. 3 The newspaper article itself receives, as the 4 defendants say, the instruction that it's not offered for the 5 truth of anything that's said in the newspaper article. The 6 jury is not otherwise instructed unless the parties tell me 7 that there's some other instruction that should be given with 8 respect to that article. 9 So, to the extent this was a motion to exclude or 10 prohibit Government Exhibit 540T, that motion is denied and 11 I'll give the instruction that 540T is not offered or received 12 for the truth of anything that's said in the article. 13 All right. 14 MR. STERN: Judge, may I be excused. I have to -- 15 THE COURT: Absolutely. Now 544. 544 seems familiar 16 to me, so it's also an article that is in the exhibits from the 17 search of Ms. Stewart's office? 18 MR. DEMBER: It is, your Honor. 19 THE COURT: And 544 is being offered because it's 20 referred to in the transcript? 21 MR. BARKOW: Yes, your Honor. 544 is referred to in 22 Government Exhibit 1201X. And in that transcript Ms. Stewart 23 says to Mr. Sattar that, and I'm looking for the page -- sorry. 24 If I could just have a second. 25 On page three of that exhibit and carrying over to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5524 499esat7 1 page four, Ms. Stewart states, did you see the article in the 2 times today? 3 Sattar: No 4 Stewart: Oh my God, Ahmad, I don't have a fax home. 5 Sattar: No, I can get it online. 6 Stewart: Yes, right, by Judith Miller 7 Sattar: Uh-huh. 8 Stewart: And our other favorite friend, Neil 9 Farquhar, phonetic. 10 Stewart: Huh. 11 And then it goes on. And I think it's fair to say 12 that Ms. Stewart criticizes the article. In fact, in the next 13 page she says, quote, on page five, it's so ridiculous that you 14 can't believe it. And there are other statements in there as 15 well that show she criticizes it. 16 And we're offering it and we propose that it be 17 accompanied by an instruction that it is not offered for the 18 truth of any matters asserted, but we're offering it because, 19 based on that conversation, we think that it is clear that 20 Ms. Stewart read it and, therefore, was aware of its contents. 21 And it goes to her state of mind and knowledge of its contents. 22 The fact that she new enough about it to criticize it, we 23 think, demonstrates her knowledge of it. 24 Furthermore, as the Court just acknowledged, or 25 mentioned, there was a copy of it found in the search of the -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5525 499esat7 1 of her office. And there is also a copy of the same article 2 found in the Yousry search. We haven't gotten to that yet, but 3 it was found in an envelope with a mailing label on it that had 4 Ms. Stewart's name and address on it. It was a mailing label 5 with her office name and address. And it has handwriting on 6 that copy, the one found in Mr. Yousry's search. 7 And it appears, although obviously we can't tell for 8 sure, but it appears that these are the same -- they're xeroxes 9 made at the same time, because the placement of the text is in 10 the same place on the two pieces of paper. And when I say 11 these two, I'm referring to the one found in the Stewart search 12 and in the Yousry search. 13 And so we're offering 1201, which is an authentic copy 14 of the New York Times itself from that day, because -- at this 15 point because it's mentioned in the call. And we're offering 16 it to show Ms. Stewart's knowledge of its contents. And then 17 there will be other copies of it offered in connection with the 18 Stewart and the Yousry searches. 19 MR. PAUL: Is this exhibit being offered against 20 Mr. Sattar? 21 MR. BARKOW: No, your Honor. 22 MR. PAUL: Thank you. 23 MR. TIGAR: Your Honor, there is no question that this 24 is the article that is referred to in that call. Judith Miller 25 and our other favorite friend Neil Farquhar. Ms. Stewart, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5526 499esat7 1 Mr. Sattar, think of Mr. Farquhar as some kind of CIA person. 2 The question I have is: What fact of consequence to 3 the determination of the action is made more or less probable 4 by the receipt of this article in evidence? Certainly there's 5 abundant proof that Ms. Stewart must have read it. There's 6 also proof that she had a copy of it, perhaps more than one, in 7 her office in a box of things that relate to a case in which 8 she was involved. 9 I can see, we've had here exhibits that were received 10 in evidence and Sheikh Rahman's trial, and those have been 11 received because Ms. Stewart was there and heard those received 12 in evidence. That's one thing. To attach significance to the 13 fact that somebody leaves the New York Times or reads things in 14 the New York Times that are rank hearsay -- I'll strike rank, 15 that are hearsay, doesn't seem to me to meet Rule 401. 16 Also, because of the subject matter, US says it was 17 warned on Egyptian Islamic group, a faction said to be linked 18 to bin Laden, which is a characteristic of a lot of the 19 newspaper articles that we're starting to see being offered 20 here, we have this -- you might call it a Rule 403 problem. 21 You certainly would ask yourself whether the nonhearsay -- 22 whether the truth content, the emotional, factual regard 23 outruns any instruction that it's not being received for the 24 truth. 25 And also, your Honor, it is Judith Miller, who was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5527 499esat7 1 roundly criticized for being entirely too credulous by the 2 New York Times' own ombudsperson. So the criticisms leveled 3 are -- you know, by Ms. Stewart and Mr. Yousry turn out to be 4 pretty legitimate. But at any rate, that does invite us down 5 the road of a really collateral inquiry. 6 But for all of those reasons, your Honor, and I speak 7 somewhat more broadly than just this exhibit because the point 8 I'm making now goes to almost every one of the objections we've 9 made to the Stewart search exhibits, I just don't see it on 10 Rule 401. I mean, I don't see why this -- what it is about her 11 state of mind or knowledge that is of consequence to the 12 determination of this action. We're all exposed every day to a 13 great deal of hearsay. We filter it, we look at it and so on. 14 To select individual pieces of in some cases demonstrably 15 unreliable hearsay is a chance in inquiry. 16 And when the pieces of hearsay turn out to be things 17 that a lawyer encounters in the course of trying to figure out 18 the world in which a client's case is taking place, to say that 19 that's offered as to Ms. Stewart, as I say, is very different 20 from saying it's something that passed the judicial test of 21 admissibility when the evidence in trial is admitted as to 22 Ms. Stewart in terms of the seriousness that one should take 23 something, if one assumes that then the hurdle is crossed. 24 So that's our position with respect to this and with 25 respect to almost all of the search exhibits to which we've SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5528 499esat7 1 objected. 2 MR. RUHNKE: Your Honor, may I inquire whether it's 3 also being offered against Mr. Yousry or the government intends 4 to offer it against Mr. Yousry? 5 MR. BARKOW: Your Honor, this particular Exhibit 544 6 is not offered against Mr. Yousry. However, as I said, there 7 is a copy found in the Yousry search, so the same article will 8 be offered against Mr. Yousry. 9 MR. RUHNKE: For the same purposes? 10 MR. BARKOW: Yes. 11 MR. RUHNKE: Your Honor, one further objection to what 12 Mr. Tigar said is there is a 403 danger of confusion here which 13 is even reflected in the phone call between Ms. Stewart and 14 Mr. Sattar. The headline of the article says the US was warned 15 on Egyptian Islamic group, and there's discussion of the 16 Islamic Jihad group in Egypt, which is not the Al-Gama'a 17 Islamiyya group at all. It's a group that once was run by 18 Ayman Al-Zawahiri, who is associated with bin Laden. 19 But the danger of unfair confusion here is that 20 reading this article, and I think as Ms. Stewart fairly misread 21 it, to think they're talking about the Islamic group which is 22 the alleged designated terrorist organization discussed in this 23 case. In fact, the headline is that the US was warned on 24 Egyptian Islamic group. 25 It also makes reference -- and there comes a point SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5529 499esat7 1 where the ability of the jury to ignore something they have 2 been told to limit becomes almost impossible. In this case 3 we're -- the factual discussion comes from the bombing of the 4 USS Cole, discusses the death of 17 United States sailors 5 during the bombing of the United States Cole which the jury is 6 told not to consider the truth of that actually having 7 happened. 8 The article is a speculation that grows from the 9 meeting, the bin Laden meeting that we saw on videotape last 10 week, that somehow the bombing of the Cole is related to that 11 meeting, which doesn't take much logic to say that, well, if 12 that purpose of that meeting was to free up Abdel Rahman, which 13 is the way it was played by the government and allowed to the 14 jury, that somehow these defendants or Omar Abdel Rahman or 15 someone associated with him was responsible for bombing the USS 16 Cole in Yemen, which is just not -- it has turned out to be not 17 even speculation that that was -- that that was so. 18 It carries with it a lot of emotional baggage, and it 19 carries with it the potential that the jury might think that 20 the group that was warned against was the group in this case, 21 which it isn't. It just factually isn't. I know the 22 government would concede that, but I don't think it lessens the 23 danger for confusion. 24 So I object to it on behalf of Mr. Yousry as well. 25 MR. BARKOW: Your Honor, first with respect to what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5530 499esat7 1 Mr. Ruhnke said about the headline. We would be willing to 2 stipulate that the Egyptian Islamic Jihad, I think, is the 3 group specifically that's being referred to -- 4 MR. RUHNKE: Keep your voice up. 5 MR. BARKOW: I'm sorry. We would be willing to 6 stipulate that the Egyptian Islamic Jihad is not the same group 7 as Al-Gama'a Al-Islamiyya. 8 But getting back to the merits of the issue just 9 briefly, I think that based on the call, it is evident that 10 Ms. Stewart read the entire article. Furthermore, a copy was 11 found in the search of her office and a copy was found in 12 Mr. Yousry's -- search of Mr. Yousry's residence that was 13 marked up and underlined. 14 And the content of this, it discusses the 15 September 2000 tape which was just shown in court. And in 16 terms of the reliability or unreliability of Judith Miller, be 17 that as it may with respect to other articles, whatever the 18 truth might be on that, but it quotes in this article the 19 statements that were made in that tape and comparing them in 20 this article to what was actually said in the tape; it matches 21 almost word for word. 22 It refers to the sign, it refers to Abdel Rahman's son 23 yelling off camera to shed blood until Abdel Rahman is 24 released. It talks about Ayman Al-Zawahiri stating the time 25 has come for us and all mujahadeen to confront this heathen SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5531 499esat7 1 tyrannical power which was trampled upon our holy sites and 2 occupied our two holy mosques. And so it -- the content of the 3 article tracks the content of the other evidence, and it shows 4 that Ms. Stewart, and then, because of the article found in 5 Mr. Yousry's search, Mr. Yousry, were aware of the 6 bin Laden/Taha/Al-Zawahiri fatwah. 7 And I think that's all I wanted to say, your Honor. 8 THE COURT: But what that would lead me to, as I've 9 done when issues like this have come up before, is to redact 10 the newspaper article. It seems to me that particularly in 11 view of the arguments that the defendants have raised as to 12 some materials in the article, some materials can be redacted. 13 On the other hand, there are some materials in the article that 14 are relevant to knowledge, intent and state of mind. 15 When the article is discussed, and I would have to 16 review the transcript, but the article is discussed in the 17 transcript, it is of sufficient importance to both Ms. Stewart 18 and Mr. Yousry to the clip and retain -- and it relates to 19 knowledge of the bin Laden/Taha/Al-Zawahiri videotape along 20 with Sheikh Rahman's son. So, it's relevant -- it's relevant 21 to the knowledge of those things. 22 There are other things in the article that -- as to 23 which there are fair 403 arguments, including the headline in 24 the article. I just have a -- I have a copy that had -- a copy 25 of news stories, 1241 and 1242. I don't have the article as it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5532 499esat7 1 actually appeared in the New York Times, so I don't see the 2 headline as listed US was warned on Egyptian Islamic group. 3 MR. BARKOW: That is, your Honor, in fact, what it 4 says. And there's a subheader that says, a faction is said to 5 be linked to bin Laden. I don't know if that appears on the 6 copy that the Court has. 7 THE COURT: No. 8 MR. BARKOW: I can hold it up. The Court can see the 9 size of it. 10 MR. RUHNKE: Your Honor, we could redact it however 11 you want to redact it. But the thrust of the article, the 12 whole point of the article, in the wake of the bombing of the 13 USS Cole, the New York Times is reporting that there was a 14 specific warning issued to American embassies and personnel 15 abroad that the Egyptian Islamic Jihad group was planning a 16 terrorist action. 17 When you take that part of the article out of it, 18 which has got nothing to do with the defendants in this case by 19 any argument, I suppose what you're left with is discussion of 20 the meeting that was on the videotape. And I think, first of 21 all, there's no evidence that Mr. Yousry ever read the article. 22 It appears to have come to him in an envelope that was 23 addressed to Ms. Stewart, and it's the same copy apparently 24 that Ms. Stewart had, so -- but there is no evidence that 25 Mr. Yousry read the article. The conversation we're talking SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5533 499esat7 1 about is between Mr. Sattar and Ms. Stewart. 2 THE COURT: I've reviewed the search exhibits from 3 Ms. Stewart's office. Is this one of the ones that was 4 underlined? 5 MR. BARKOW: That was underlined, your Honor? 6 THE COURT: Yes, there was -- 7 MR. BARKOW: No, your Honor. 8 THE COURT: There were several of the articles that 9 were underlined and starred. 10 MR. BARKOW: No, your Honor. It was Exhibit 2620 from 11 the Stewart search. It was underlined in the Yousry search, so 12 actually to the contrary, there is evidence that -- some 13 evidence at least that Mr. Yousry read it because the copy 14 found in Ms. Stewart's search is not underlined. The evidence 15 that she read it is the call, and then the evidence Mr. Yousry 16 read it is that his copy was underlined and marked up. 17 MR. RUHNKE: There's evidence that he received a copy, 18 that somebody underlined it. That's what the evidence is. 19 But in any event, if you take from the article that 20 which I think carries 403 problems, what you are even arguably 21 left with is the discussion of the meeting -- I mean, if the 22 government wants to offer it for the idea that maybe someone 23 was aware of this meeting -- 24 THE COURT: Well, I've heard arguments from the 25 defendants that they were unaware of -- as to what's referred SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5534 499esat7 1 to as the Count 2 conspiracy. 2 MR. RUHNKE: Yes. 3 THE COURT: Knowledge of the videotape and what was 4 said in the course of that videotape, the knowledge by 5 Ms. Stewart and for Mr. Yousry of that is a matter of relevance 6 in the case, is it not? 7 MR. RUHNKE: Well, your Honor, that's what I'm saying. 8 If it has any relevance at all, it's relevant on that issue. I 9 mean, the fact that three people siting in a conference in 10 Afghanistan likely issue a call for freeing the Sheikh is not 11 the conspiracy charged in Count 2, unless you know Taha and 12 unless you know Taha is somehow communicating with someone 13 close to you. And that's another point in the case. 14 And in the absence of proof that Mr. Yousry read the 15 article, he's not on the phone discussing it. I think the 16 article should be stripped to his discussion of the meeting. 17 And I object to that because there's no connection showing 18 Mr. Yousry read the article. You have to infer that he read 19 it. And that's a very, very thin reed for admissibility, but 20 that none of the other material, the -- what resulted in the 21 bombing of the Cole, death of US sailors, warnings to American 22 embassies, the fact that Egypt -- Egypt Islamic Jihad is one of 23 the most violent groups, it has ties to bin Laden, all of that 24 is properly part, I respectfully submit, of the 403. 25 MR. TIGAR: Your Honor, I said a moment ago that you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5535 499esat7 1 mentioned first underlining, and this article is not underlined 2 but there are some that are. Also that it's something 3 Ms. Stewart obtained. She had it in her office. 4 Well, Mr. Dember wrote to us this article, which is I 5 think 2620, and a number of other exhibits identified in 6 Mr. Dember's letter to me of September 8th -- we can get a copy 7 for your Honor -- were all found in a box, the same box on the 8 floor of Ms. Stewart's law office. All of it was in there 9 together. Some of that material was exhibits from an asylum 10 case that Ms. Stewart tried together with David Cole and others 11 on behalf of this fellow Nasser, who was a paralegal in the 12 Sheikh's case that they arrested during the Sheikh's case. 13 They won the asylum case. But this article wasn't part of the 14 file of that case because it comes at a date after it. 15 But this is a collection of materials on Egypt, groups 16 in Egypt and, interestingly enough, as you'll see from the 17 other Stewart exhibits, the human rights record or the nonhuman 18 rights record of the Egyptian government. Attaching 19 significance to the possession of it raises issues. 20 Your Honor, as a matter of fact, I write books 21 sometimes. I have research assistants who collect things for 22 me and put them in file cabinets. Sometimes I read the things 23 that are collected and put in the cabinet and sometimes I 24 don't. Sometimes I pay attention to them, sometimes I don't. 25 The real question is, what's my work product? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5536 499esat7 1 And that was the point I was making earlier, your 2 Honor. A lawyer engaged in countless cases involving all sorts 3 of issues may possess all sorts of things, and yet we don't get 4 to the 401 business of how does that possession advance the 5 inquiry? Unless we want to say, well, get on the stand and 6 explain it, which raises problems of its own. 7 MR. BARKOW: Your Honor, Exhibit 1201X, if I could 8 just read what Ms. Stewart's statements are in that call. And 9 I'll skip the mm-mms and yeahs from Mr. Sattar. She states 10 after it was -- the article was by Judith Miller and Neil 11 Farquhar. I'm on page four. 12 I want you to know that it was the Sheikh's fault that 13 the Yemen incident happened. It was planned by the same forces 14 that were going to liberate the Sheikh. It's so ridiculous you 15 can't believe it. Well, it's -- it's bin Laden and his first 16 in command, who of course is an Egyptian who's in charge of 17 Al-Jihad, and, um, gee, I don't have the article in front of 18 me, you know. It's about that meeting that was reported 100 19 years ago. It's happening in May and it was at the meeting 20 that this was all planned. 21 And then Mr. Sattar says, oh, they knew back then, you 22 know, that the USS Cole was coming out to stay, so -- and 23 Ms. Stewart says, yep, yep, mm-mm. 24 Mr. Sattar says, Yemen, ah, that's so ridiculous. 25 Ms. Stewart: Yeah. So, in the background you can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5537 499esat7 1 hear the Sheikh's son yelling, they say, you know, quote, blood 2 will flow, blood will flow, end quote. It's the same. It's, 3 uh, it's a rehash of that old article about the meeting in 4 Qatar. You know, but now we put it in new clothes. It's a new 5 unification of the most vicious. Now they're calling, they're 6 calling, um, the new Egyptian group, the most vicious 7 terrorists. 8 It's skipping the next line. 9 Yeah, you know, free the Sheikh to anyone who has the 10 means to do it. 11 And I think that that summary of the article, without 12 even having the article in front of her, shows that Ms. Stewart 13 read the article quite closely. And so I make that point and 14 then just a few other quick points. 15 Again, we're not offering it for the truth, and an 16 appropriate instruction would accompany it. And we're willing 17 to propose a redacted version. I fear, though, if we redact 18 it, some of these things to the Cole, for example, that 19 Ms. Stewart's summary of the article in the call won't make 20 sense. And she clearly read the things she refers to in the 21 call, and then so she knows about them. She criticizes them, 22 says some of them are ridiculous. 23 And the arguments about whether she read them or not 24 go to weight. We're not going to argue that Sheikh Abdel 25 Rahman was behind the Cole bombing, and that's not what's going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5538 499esat7 1 on here. But certainly it can be argued that Ms. Stewart 2 didn't agree that there was a link between these events, and 3 certainly it can be argued that evidence is in the call that 4 she disagreed with it. But she tracks the article in her 5 summary of it to Mr. Sattar. 6 And so we think that redaction is unnecessary to a 7 point because what we're interested in is showing that she read 8 the whole article, and that therefore the parallels between her 9 summary and article are important to show she read it and 10 digested it, and then we would focus on those parts that we 11 view as significant to us, which are the parts that relate to 12 the September 2000 fatwah. 13 THE COURT: Well, I'll review the article and 1201X. 14 When I read the article earlier, I was -- I thought that the 15 article could be redacted. And the fact that there are parts 16 of it that are discussed in the call doesn't mean that the 17 article -- that portions of the article which are not 18 themselves relevant and raise a 403 problem have to stay in in 19 an exhibit that's otherwise in evidence. And I've had other 20 newspaper articles redacted where I thought it was appropriate 21 for 403 purposes. 22 It's quarter of 6:00 and I don't want to keep you with 23 respect to all of the Stewart search materials, you know, the 24 search materials of Ms. Stewart's office. 25 I want to make one observation, and you can -- I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5539 499esat7 1 realize that I'll need time with you next week to discuss each 2 of the exhibits as to which there is a question, as to which 3 there is an objection. And this morning Ms. Stewart's counsel 4 sent a letter that added another two exhibits as to which there 5 was originally no objection and they thought that an 6 appropriate limiting instruction, presumably not for the proof 7 but for -- because these were -- this was correspondence from a 8 third party to Ms. Stewart about subjects that they wanted to 9 cover with, if memory serves me right, with Sheikh Rahman. 10 I would have thought that the initial thought that the 11 exhibits were relevant to intent, state of mind, particularly 12 when the exhibits, if memory serves me right, specifically 13 refer to the videotape and one could ask questions about it. 14 But you can think about that. The government can think about 15 whether all of the newspaper articles should be offered and 16 what the relevance of each of them is. 17 There were a series of objections that were raised 18 that I realize you haven't explained the objections to me, and 19 I'd certainly give you the opportunity to do that, but there is 20 an objection, for example, to 2634, which is a note -- 21 MR. TIGAR: Your Honor, I can understand your Honor's 22 quizzical look at that objection. It was made seriously, is 23 made seriously, and I think the best thing would be if I could 24 get a letter to the Court that very briefly encapsulated or 25 summarized our objections to each one of these things. And SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5540 499esat7 1 that way we could minimize oral argument and save jury time. 2 Today -- I'm meeting with a witness all day tomorrow, 3 I could get that to your Honor by, you know, Sunday late 4 afternoon. But if your Honor tells me that I really should get 5 it to you before the sun sets on Friday, I would endeavor to do 6 that. Well, I -- 7 THE COURT: I just -- the number of exhibits as to 8 which there is a -- 9 MR. TIGAR: Quite large. 10 THE COURT: No, not so bad, not compared to the number 11 that I've dealt with. 12 MR. TIGAR: Your Honor, with respect to the newspaper 13 article exhibits, we have a classification system for those, 14 because some, for example, are arrived from a clipping service. 15 You can see that. Some were pasted up as exhibits in a case. 16 Others, others are remote or whatever for other reasons. 17 And Mr. Barkow makes a fair point that the particular 18 New York Times article is one that was discussed, but the point 19 I made about things that are simply in a box somewhere is 20 relevant to some of these. In short, I can do a taxonomy of 21 objections as to the newspaper article exhibits and that will 22 make the letter pretty short for so many exhibits. 23 As to the one about which your Honor raises a specific 24 question and that letter from Mr. Schuster that your Honor -- 25 THE COURT: There were two that were added to that by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5541 499esat7 1 you. 2 MR. TIGAR: But the particular one that refers to the 3 tape, which I think is 2614, we have a fairly pointed brief 4 objection to that. I won't try to argue it now. 5 what's your Honor's preference about when to receive 6 the letter? Because I can get some help here and we can get it 7 in your hands whenever you think it would be most helpful. 8 THE COURT: I want to be able to give the government 9 an opportunity to respond. And I don't think I have to rule on 10 these, even if their translations are admitted -- not admitted, 11 but the translator identifies the translations for some of 12 these. This was given to me because the translator was going 13 to be testifying. 14 MR. DEMBER: Your Honor, actually, that letter 15 involving the translator involves just separate newspaper 16 articles. It does not involve the newspaper articles from the 17 Stewart search. So that's separate and apart from what we're 18 talking about now. 19 We do intend to put the agent who was pretty much 20 responsible for this particular search on the witness stand 21 next Tuesday. I hope to have a number of these issues at least 22 resolved by then. But we will put her on next week. We need 23 to do that just because of her schedule. 24 And I'm hoping we can do that like we did with 25 Mr. Sattar's search evidence, put a single agent on with a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5542 499esat7 1 stipulation as to the specifics as of where the particular 2 exhibits came from, but hopefully that will be the case. 3 MR. TIGAR: Your Honor, I understand there are only 4 two agents that seized all of the exhibits the government has 5 proffered, Mr. Butler and Mr. Carnahan. Well, I'll talk to 6 Mr. Dember about it -- 7 THE COURT: All I -- as with the search relating to 8 Mr. Sattar, it would seem to me that the evidence of what was 9 searched could be admissible without the individual exhibits 10 and then could be -- the defendant can brief the admissibility 11 and you can respond in the same way that we did with the Sattar 12 search, search of Mr. Sattar's residence. 13 MR. DEMBER: That's certainly possible, your Honor. 14 Actually -- your Honor, may I just make one comment about the 15 proposed Exhibit 2634, which is that piece of note paper with 16 some handwriting on it. 17 If your Honor does rule that that becomes -- is 18 admissible, we are going to ask your Honor to look at the 19 notebook from which that came from. It's referred to in the 20 special master's report, the recommendation. We had originally 21 back many weeks ago asked -- sought an accommodation from the 22 defense with respect to what was in that notebook. Obviously 23 the trial team has had no -- has not had -- we've had no -- we 24 haven't had the opportunity to look at it because the rest of 25 that notebook has been excluded as and ruled as either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5543 499esat7 1 privileged or work product. But we think, your Honor, if you 2 look at it -- 3 THE COURT: I thought -- let me -- I thought that, 4 without disclosing anything that in the briefing between the 5 parties, that privilege team asked me to review certain 6 documents and that I reviewed certain documents. And I thought 7 that I had resolved the issues as to the additional documents 8 that I was asked to look at. 9 MR. DEMBER: Your Honor, we're not asking you to 10 reconsider any decisions made with respect to privilege. But 11 we suspect -- obviously we've not seen the other pages from the 12 notebook that this particular page comes from -- 13 THE COURT: But the defendant should know the answer 14 to this as to whether this was one of the things that the wall 15 team said, Judge, we check what the special master did. 16 MS. BAKER: Your Honor, this, I believe, was one of 17 the documents where your Honor was asked to rule on whether the 18 special master's disposition was correct, and your Honor ruled 19 that it was. This was a particular page that the special 20 master had ordered that was not covered by the privilege and 21 essentially was -- 22 THE COURT: No, but I was also -- but the government 23 also said make sure. 24 MS. BAKER: Yes -- 25 THE COURT: Make sure that the special master was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5544 499esat7 1 correct in not requiring further things to be turned over. 2 MS. BAKER: That is correct. But, actually, 3 Mr. Dember's request that he's trying to frame is for a 4 completely different purpose. Your Honor is correct that you 5 previously resolved all issues as to which pages were 6 privileged and which pages are not. We raise this now for a 7 completely different reason. 8 MR. DEMBER: Which is, your Honor, it's described in 9 the special master's report and recommendation as having been 10 represented to him that the other pages of that notebook 11 contained notes from Ms. Stewart's visits with Abdel Rahman on 12 I believe three occasions: A visit in '98, a visit in '99 and 13 the July 2001 visit. We're not asking your Honor to reconsider 14 that ruling. 15 What we are asking is your Honor to examine the book. 16 We had originally, as I was about to mention several weeks ago, 17 asked defense whether they would agree to in some redacted form 18 stipulate or agree to presenting pages, preceding pages of the 19 one that is Exhibit 2634 with a date, if a date appears on 20 it -- because somebody writing a date on a page is not a 21 privileged communication -- to give 2634, that exhibit, a 22 little more meaning than just standing alone as it is. 23 It's clear at least from what we gather from the 24 special master's report that this page comes from a notebook 25 that was used by Ms. Stewart when she visited her client Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5545 499esat7 1 Rahman, and that obviously it's logical that at some point 2 somewhere in the book she wrote the words that appear on this 3 particular exhibit. And it will have no meaning to a jury if 4 we can't argue to them with proper and legally admissible 5 evidence that this is a page that they can assume and they can 6 conclude was written by her perhaps to Mr. Yousry during a 7 conversation or other conversations with Abdel Rahman, and if 8 there are dates which are not privileged communications that 9 she wrote on those pages. If there are, that would give us the 10 opportunity to more meaningfully argue this piece of evidence 11 to the jury. 12 That's my only request. And I could ask someone who's 13 not part of this trial team to deliver that to your Honor's 14 chambers. Perhaps you want to wait until you've ruled on the 15 admissibility of this particular page before we take that next 16 step. But that's a request we will have. 17 THE COURT: You've been asked by someone -- what, 18 you've been asked by someone not on the trial team? 19 MR. DEMBER: No, your Honor. We will ask somebody 20 who's not on the trial team who's on the other side of the wall 21 to deliver that notebook to you. Since we don't have access to 22 it, we haven't examined it. 23 But there are people in our office or on the other 24 side of the wall who have been working I guess with the special 25 master and with Ms. Tipograph, who represented Ms. Stewart in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5546 499esat7 1 litigating these issues for the special master, since obviously 2 we couldn't and didn't have access to these materials. 3 THE COURT: Well, the defendant can consider that. 4 Where are we then on the timing of the defense letter and the 5 government response? 6 MR. TIGAR: Your Honor, I'd like to understand: Are 7 we to have a separate letter with respect to Mr. Dember's 8 letter of September 9th and -- which is the newspaper articles 9 they want to introduce and the Stewart search exhibits or one 10 letter? In terms of the government's own planning for its 11 purposes. 12 MR. DEMBER: Your Honor, frankly we'd like to 13 introduce both the Stewart search evidence next week and the 14 newspaper articles that are in the letter that we sent this 15 morning. We want to present those next week as well. So 16 whether it's in one letter or two, we don't really have a 17 position. As long as we get it as soon as possible so we can 18 hopefully introduce those exhibits next week. 19 MR. TIGAR: We have a great many things we're doing 20 for the next several days, your Honor, which includes talking 21 to witnesses and preparation. Sunday late afternoon is as good 22 as I feel that we can do -- 23 THE COURT: OK. 24 MR. TIGAR: -- with this. 25 THE COURT: I mean, if the defendant gives it to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5547 499esat7 1 Sunday late afternoon, can the government give me something at 2 the end of the day on Monday? 3 MR. DEMBER: Yes, your Honor. 4 THE COURT: Let me raise one question on the list of 5 newspaper articles and translations, Government Exhibit 534. I 6 just wasn't -- I didn't understand, Mr. Dember, from your 7 letter why the translator was going to be translating a version 8 of 534 which was not quite the same as the version that was 9 actually found, for example, at Mr. Yousry's home. At least 10 that's what I got from your letter. 11 MS. BAKER: Your Honor, I don't have the exhibits in 12 front of me, but my recollection is that the paragraph of our 13 letter that your Honor is referencing, which is the first full 14 paragraph on page three, perhaps inadvertently created some 15 confusion by seeking to draw a parallel between two different 16 news articles. 534 is an Arabic language news article by 17 Mohammed Salah from the June 23rd, 2000, edition of Al-Hyatt. 18 THE COURT: Right. 19 MS. BAKER: And it essentially announces Abdel 20 Rahman's clarification of his position regarding the cease 21 fire. 22 Later in that paragraph we referenced a different news 23 article, which is an English language news article or an 24 English language press release that was found in Ms. Stewart's 25 law office, and that is an English language document that was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5548 499esat7 1 faxed to Reuters reporter Esnot Salahadeen. 2 So what we were seeking to do was demonstrate the 3 relevance and reliability of the content of the Arabic language 4 news article by comparing it to other evidence in the case. 5 THE COURT: Don't you also refer to ones down at 6 Mr. Yousry's home? 7 MS. BAKER: Yes. And that one is also the Arabic 8 language version. So the one in Mr. Yousry's residence is the 9 Arabic language article identical to Government Exhibit 534. 10 THE COURT: I thought you said almost identical in the 11 letter. That's what I -- 12 MS. BAKER: No -- well, the letter, at least my copy 13 of it here, says, quote, this article matches one that was 14 found in the search of defendant Mohammed Yousry's residence, 15 etc., etc. And then the language that your Honor is thinking 16 of is from the next sentence, which is what I was explaining a 17 minute ago, and that sentence says, the language of the 18 article. 19 THE COURT: OK. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5549 499JSAT8 1 THE COURT: My own question was, why were you 2 translating -- why were you seeking to admit an independent 3 translation of the June 3rd Al Hayat editorial rather than the 4 translation of the one that was actually found in Mr. Yousry's 5 home? 6 Are you going to introduce yet another translation of 7 one found at Mr. Yousry's home? 8 MS. BAKER: Your Honor, it would not be our intention 9 to introduce multiple translations. We can think about whether 10 or not to introduce both Arabic versions, but certainly we 11 would not seek to introduce two different Arabic translations. 12 Instead, we would merely argue to the jury later that 13 the Yousry search exhibit, Government Exhibit X, is identical 14 to Government Exhibit 534; and, therefore, both are translated 15 in the translation 534 T. 16 MR. TIGAR: Your Honor, one small question that is 17 going to help us with our letter. 18 Exhibit 2663 is a fax cover sheet to Esmat Salaheddin 19 from Ms. Stewart's law office and says pages to follow: 2. 20 However, the rest of the exhibit is four pages. Does the 21 government -- in terms of arguing about admissibility, I don't 22 know what is being offered here. 23 MR. DEMBER: Your Honor, when these documents were 24 seized -- may I have a moment. 25 THE COURT: I don't think 2663 was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5550 499JSAT8 1 MR. DEMBER: Do you object to that one? 2 MR. TIGAR: No, I certainly don't object to the one 3 that I thought was the two pages attached to the fax cover 4 sheet. The other two pages which I didn't think had anything 5 to do with anything were strays. 6 MR. DEMBER: The reasons all those documents were 7 stapled as one package is because that is the way it was found 8 in the search. So in order to preserve the integrity of the 9 documents found, those five documents were left together in a 10 stapled condition because that is how they were found. 11 THE COURT: Okay. I didn't have that document as one 12 to which an objection was raised. 13 MR. DEMBER: Apparently, there isn't. 14 MR. TIGAR: No. We have a question about it. If that 15 is where they were found, then that is where they were found. 16 I recognize some of the handwriting and I can cross-examine the 17 finding agent as to them. 18 THE COURT: Okay. Anything else? Okay. Good 19 evening, all. 20 (Court adjourned until Monday September 13, 2004, at 21 9:15 o'clock am) 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5551 1 INDEX OF EXAMINATION 2 Examination of: Page 3 NABILA BANOUT 4 Direct The Clerk . . . . . . . . . . . . . . 5440 5 Cross By Mr. Ruhnke . . . . . . . . . . . . 5445 6 Cross By Mr. Tigar . . . . . . . . . . . . . 5446 7 Redirect By Mr. Barkow . . . . . . . . . . . 5450 8 GOVERNMENT EXHIBITS 9 Exhibit No. Received 10 1762 . . . . . . . . . . . . . . . . . . 5451 11 1717A and 1718A . . . . . . . . . . . . . 5453 12 1319 was . . . . . . . . . . . . . . . . 5467 13 1193 A and 1201 A were . . . . . . . . . 5467 14 DEFENDANT EXHIBITS 15 Exhibit No. Received 16 MY-20 . . . . . . . . . . . . . . . . . . 5446 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300