5797 49FJSAT1 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 15, 2004 8 9:32 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 and a jury 13 13 APPEARANCES 14 14 DAVID N. KELLEY, 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER, 16 CHRISTOPHER MORVILLO, 17 ANTHONY BARKOW, 17 ANDREW DEMBER, 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL, 19 BARRY M. FALLICK, 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR, 21 JILL R. SHELLOW-LAVINE, 22 Attorneys for Defendant Stewart 22 23 DAVID STERN, 23 DAVID A. RUHNKE, 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5798 49FJSAT1 1 (Trial resumes) 2 (In open court; jury not present) 3 THE COURT: Good morning, all. Please be seated. 4 The marshals had advised me that there was an issue 5 with one juror, who thought that her cell phone was lost, but 6 the issue was resolved. 7 There was an issue yesterday with respect to E-mails, 8 and I've reviewed the materials. The witness Nancy Khouri 9 testified to her background and experience as an expert 10 translator and testified to the fair and accurate translation 11 of 7 exhibits. When an issue was raised, materials were 12 provided to the court for review for the purposes of the Jencks 13 Act. 14 All of the materials were very brief E-mails, 15 internally transmitting translations, including at least six of 16 the exhibits. They do not discuss the substance or accuracy of 17 the translations or the witness' qualifications as an expert 18 witness. They could not provide any reasonable basis for 19 impeachment and are at most incidental or collateral to the 20 subject matter of the direct testimony because they transmit 21 the translations and do not discuss their substance or 22 accuracy. 23 Therefore, they need not be produced pursuant to 18 24 U.S.C. 3500 (b), and the defendants' motion to strike the 25 testimony is pursuant to 18 U.S.C. Section 3500 (d) is denied. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5799 49FJSAT1 1 See United States v. Koskerides, 877 F.2d 1129, 1133 (2d Cir. 2 1989); United States v. Cardillo, 316 F.2d 606, 615 to 16 (2d 3 Cir. 1963); United States versus Catalano, 491 F.2d 268, 274 4 to 75 (2d Cir. 1974); United States versus Pacelli, 491 F.2d 5 1108, 1119 to 20 (2d Cir. 1974); United States against 6 Birnbaum, 337 F.2d, 337 F.2d 490, 497 (2d Cir. 1964). 7 The court will seal the documents pursuant to 18 8 U.S.C. Section 3500 (c), so that they are available for further 9 review. 10 MR. TIGAR: Thank you, your Honor. 11 I don't mean to quarrel with the court's ruling, but I 12 would like to say that in our view, the court's interpretation 13 of the scope of production under the Jencks Act is mistaken, 14 that it is precisely the purpose of the Jencks Act that the 15 impeachment value of materials that fall within the definition 16 of statements for counsel and the court, C.F. Dennis versus 17 United States 344 U.S. 855 -- no. That is not right -- 384 18 U.S. -- I think it is 855, and it is the text that appears at 19 Footnotes 19 through 21, 1965, the opinion in United States 20 versus Riley, 189 F.3d 302 (9th Circuit). 21 Thank you. 22 THE COURT: All right. 23 MR. TIGAR: The jump page in Dennis is 872-73. Thank 24 you. 25 THE COURT: All right. I received Ms. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5800 49FJSAT1 1 Shellow-Lavine's letter, which goes to various items that 2 remain open. I've disposed of the issue of the Jencks 3 documents for Ms. Khouri. It lists the redaction and 4 presentation of Government Exhibit 544, which I really disposed 5 of yesterday. 6 MS. SHELLOW-LAVINE: Thank you, your Honor. 7 THE COURT: With respect to the defendants' issues 8 with respect to the newspaper exhibits and the objections to 9 the exhibits with respect to Ms. Stewart's office, I appreciate 10 that those are open. The parties wanted an opportunity to 11 discuss those with me, and I don't believe that I'll have an 12 opportunity before Wednesday to have argument on those. 13 I asked the government whether that is a problem in 14 terms of timing, but I don't see it. If the parties want an 15 opportunity to argue to me, I don't see an alternative. 16 MR. DEMBER: Your Honor, we indicated that we didn't 17 need to argue or deal with these. 18 THE COURT: I am sorry? 19 MR. DEMBER: We indicated the other day that we didn't 20 need a ruling on these various exhibits from Ms. Stewart's 21 search or the newspaper articles until -- we didn't need a 22 specific date, but we didn't need to have a decision made 23 immediately. So next Wednesday would be perfectly fine with 24 the government, if that is fine with the defense. 25 THE COURT: We'll do it at the end of the day on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5801 49FJSAT1 1 Wednesday. I asked the government to get back to me with 2 respect to Ms. Banout. 3 MR. BARKOW: May I have just one second. 4 Your Honor, we anticipate that we are going to recall 5 Ms. Banout. She is out of town this week, so sometime next 6 week. 7 THE COURT: And -- 8 MR. TIGAR: Excuse me, your Honor. 9 At that point, does the government have a position 10 then on the withdrawal of its exhibits? Does this mean that 11 they're not going to proceed to do that? 12 MR. BARKOW: Your Honor, if we are going to recall Ms. 13 Banout, at the conclusion of her testimony, we intend to offer 14 Government Exhibit 1315, but we're still not intending to 15 publish or read those calls. 16 THE COURT: There you have it! 17 I take it where things stand at the moment is the 18 government sought to effectively withdraw 1315? 19 MR. BARKOW: Yes, your Honor, that was the DVD that 20 was discussed before the court but has never been offered 21 before the jury. 22 THE COURT: So the government says okay, well, we'll 23 recall Ms. Banout and then we'll offer 1315 because I indicated 24 Ms. Banout should be recalled so that she could be questioned 25 with respect to the E-mails. The parties can continue to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5802 49FJSAT1 1 discuss it, but as I understand it, the issue is resolved at 2 this point. 3 The government is going to recall Ms. Banout, then 4 they're going to offer -- I take it before the jury -- the 5 translations and 1315 which was not offered before the jury, 6 and the alternative would be to strike all of those exhibits 7 and not recall Ms. Banout, but that's not what the defendants 8 sought. So the government has responded as to what it intends 9 to do. 10 MR. BARKOW: If I may, your Honor, just inquire 11 through the court? 12 I assume at that point, when we offer Exhibit 1315, 13 because of the way this has played out recently, there will not 14 be an objection to its admissibility. 15 MR. TIGAR: These calls -- a number of us in the 16 courtroom are smiling at that -- these calls affect more than 17 one defendant in more than one way, and having just now 18 received the news of what I regard as a change in the 19 government's position, I would, of course, like the opportunity 20 to discuss that with counsel for all of the defendants, and 21 we'll have that discussion and then report back as to our 22 position. 23 I think the court, quite rightly, knows that this is a 24 little bit of an unusual situation because of the way the issue 25 has come about, and we'll report back to the court promptly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5803 49FJSAT1 1 after we have a chance to consult about that. 2 MR. BARKOW: Your Honor, just if I can make clear 3 then, the government sought to not have these in evidence, and 4 Mr. Tigar said that they should be in evidence. 5 After the discussion, we have agreed, even though we 6 initially objected to recalling Ms. Banout, if the defendants 7 go back to their original position they should not come into 8 evidence, we may reassess our position as well about recalling 9 Ms. Banout because the only reason we're doing this is because 10 of the discussions that occurred last time. 11 THE COURT: The parties are welcome to discuss this 12 among themselves and report back. I should have a response 13 before the date on which the government intends to recall 14 Ms. Banout. 15 I realize I have a motion for reconsideration on the 16 second Luxor witness. The last item on Ms. Shellow-Lavine's 17 letter was Mr. Dember's September 14th letter, it not being the 18 final production, and the government should report back when 19 the final production will be made. 20 MR. MORVILLO: Your Honor, as you know, Ms. Baker is 21 not here this morning. If at the break I can ask her to come 22 here, perhaps she will be in the best position, I think, to 23 give an answer as to when the final production can be made. 24 THE COURT: All right. Anything else? Let's call in 25 the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5804 49FJSAT1 1 MR. MORVILLO: Your Honor, the government was going to 2 call Ms. Victoria Benjamin as its first witness this morning, 3 but when we started, she was not yet here. If I may just have 4 a moment to run outside -- she is here? 5 THE COURT: Sure. 6 (Pause) 7 (Jury present) 8 THE COURT: Please be seated, all. 9 Good morning, ladies and gentlemen. 10 THE JURY: Good morning. 11 THE COURT: It is good to see you all. 12 The government may call its next witness. 13 MR. MORVILLO: Your Honor, at this time the government 14 calls Victoria Benjamin. 15 THE CLERK: Ms. Benjamin, having been previously 16 sworn, you are reminded you you are still under oath. 17 THE WITNESS: Yes, I understand. 18 VICTORIA BENJAMIN, 19 recalled as a witness by the Government, 20 having been previously duly sworn, testified as follows: 21 MR. MORVILLO: The government requests permission for 22 Ms. Benjamin to testify as an expert witness, to testify in the 23 area of Arabic-to-English translation. 24 THE COURT: All right. 25 MR. MORVILLO: May I approach, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5805 49FJSAT1 1 THE COURT: Yes. 2 (Pause) 3 DIRECT EXAMINATION 4 BY MR. MORVILLO: 5 Q. Ms. Benjamin, I have just handed you what has been marked 6 for identification as Government Exhibits 1213 T, 1219 T, 1225 7 T, and 1243 T. 8 A. Yes, I have them. 9 Q. Do you recognize those documents? 10 A. Yes, I do. 11 Q. How do you recognize them? 12 A. I have my initials and the date on them. 13 Q. What are they? 14 A. They are telephone calls' translations, translations for 15 telephone calls. 16 Q. Are those translations of telephone calls that correspond 17 to audio files on DVDs you were provided by Scott Kerns? 18 A. Yes, they are. 19 Q. Are they true and accurate, in your opinion, translations 20 of the spoken Arabic into English? 21 A. Yes, they are. 22 MR. MORVILLO: I have no further questions, your 23 Honor. 24 THE COURT: All right. 25 MR. TIGAR: Nothing, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5806 49FJSAT1 1 THE COURT: Ms. Benjamin, you are excused. You may 2 step down. 3 (Witness excused) 4 MR. MORVILLO: May I retrieve the exhibits, your 5 Honor? 6 THE COURT: Yes. 7 (Pause) 8 MR. MORVILLO: Your Honor, at this time, the 9 government would offer into evidence the corresponding X 10 exhibits for these four transcripts, 1213 X, 1219 X, 1225 X and 11 1243 X pursuant to a FISA stipulation between the parties. 12 THE COURT: All right. The Government Exhibits 1213 13 X, 1219 X, 1225 X, and 1243 X received in evidence. 14 (Government's Exhibits 1213 X, 1219 X, 1225 X and 1243 15 X received in evidence) 16 MR. MORVILLO: Your Honor, at this time, the 17 government requests permission to read and display to the jury 18 Government Exhibit 1197 X in evidence. 19 THE COURT: All right. 20 MR. MORVILLO: This is a call for which a limiting 21 instruction would be appropriate, your Honor, and we would 22 request that Mr. Forkner come forward and take the witness 23 stand. 24 THE COURT: Ladies and gentlemen, this transcript is 25 offered only as to Counts 2 and 3 of the indictment, and it is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5807 49FJSAT1 1 received subject to connection against Mr. Sattar. 2 I have explained to you what "subject to connection" 3 means. This transcript cannot be considered against Ms. 4 Stewart or Mr. Yousry for the truth of the matters asserted in 5 the transcript. 6 All right. You may proceed. 7 MR. MORVILLO: For the record, Government Exhibit 1197 8 X is a telephone call on October 16th, 2000, at 7:53 am between 9 Ahmed Abdel Sattar and Rifa'l Ahmad Taha Musa. Mr. Forkner 10 will read the attributions to Mr. Sattar and I will read the 11 attributions to Taha. 12 May we proceed? 13 THE COURT: Yes. 14 (At this point, Government Exhibit 1197 X, in 15 evidence, was displayed and read to the jury) 16 MR. MORVILLO: At this time, your Honor, the 17 government requests permission to read and display for the jury 18 Government Exhibit 1198 X in evidence. This is also a 19 telephone call for which a limiting instruction would be 20 appropriate. 21 THE COURT: All right. Ladies and gentlemen, this 22 transcript is offered only as to Counts 2 and 3 of the 23 indictment and is received subject to connection against 24 Mr. Sattar. 25 I have explained to you what "subjection to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5808 49FJSAT1 1 connection" means. This transcript cannot be considered 2 against Ms. Stewart or Mr. Yousry for the truth of any of the 3 matters asserted in the transcript. All right. 4 MR. MORVILLO: For the record, your Honor, Government 5 Exhibit 1198 X is a telephone call from October 16th, 2000, at 6 7:56 am between Ahmed Abdel Sattar and Rifa'l Ahmed Taha Musa. 7 May we proceed? 8 THE COURT: Yes. 9 (At this point, Government Exhibit 1198 X, in 10 evidence, was displayed and read to the jury) 11 MR. BARKOW: Your Honor, at this point, the government 12 requests permission to read and publish to the jury Government 13 Exhibit 1199 X, which is in evidence. This is also a call for 14 which the limiting instruction would be appropriate. 15 THE COURT: All right. Ladies and gentlemen, this 16 transcript is offered only as to Counts 2 and 3 of the 17 indictment and it is received subject to connection against 18 Mr. Sattar. 19 I have explained to you what "subjection to 20 connection" means. This transcript cannot be considered 21 against Ms. Stewart or Mr. Yousry for the truth of any of the 22 matters asserted in the transcript. 23 MR. BARKOW: Before I read the transcript, if I could 24 just state a stipulation, agreement between the parties. 25 Again, with respect to this call, the individual SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5809 49FJSAT1 1 identified as Muntasir is not Montasser Al-Zawahiri. 2 THE COURT: All right. 3 MR. BARKOW: This is October 19th, 2000, 3:00 in the 4 afternoon. Mr. Forkner will read the lines of Ahmed Abdel 5 Sattar, and I will read the lines of Muntasir, last name 6 unknown. 7 THE COURT: All right. 8 (At this point, Government Exhibit 1199 X, in 9 evidence, was displayed and read to the jury) 10 MR. MORVILLO: The government requests permission at 11 this time to read and display to the jury Government Exhibit 12 1200 X in evidence. 13 THE COURT: All right. Ladies and gentlemen, this 14 transcript is offered only as to Counts 2 and 3 of the 15 indictment and it is received subject to connection against 16 Mr. Sattar. 17 I have explained to you what "subjection to 18 connection" means. This transcript cannot be considered 19 against Ms. Stewart or Mr. Yousry for the truth of any of the 20 matters asserted in the transcript. All right. 21 MR. MORVILLO: For the record, Government Exhibit 1200 22 X is a telephone call that occurred on October 19th, 2000, at 23 10:47 pm, between Ahmed Abdel Sattar and Rifa'l Ahmad Taha 24 Musa. 25 May we read it to the jury? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5810 49FJSAT1 1 (At this point, Government Exhibit 1200 X, in 2 evidence, was displayed and read to the jury) 3 MR. BARKOW: May I have just a moment, your Honor? 4 THE COURT: Yes. 5 (Pause) 6 MR. BARKOW: Your Honor, may Mr. Forkner be permitted 7 to step down and Mr. Feldman come forward to continue the 8 readings? 9 THE COURT: Yes. 10 MR. BARKOW: Your Honor, at this point the government 11 requests permission to read and publish to the jury what is in 12 evidence as Government Exhibit 1733 T. That is the transcript 13 of an October 20th of 2000, 10:27 am prison call recording. 14 That recording is in evidence on Government Exhibit 15 1730, and at this point we are going to read the transcript 16 only, Government Exhibit 1733 T, which is in evidence. 17 THE COURT: All right. 18 MR. BARKOW: Your Honor, may we put the transcript on 19 the screen? 20 THE COURT: Yes. 21 MR. BARKOW: If I may, your Honor, if I could state an 22 oral stipulation, an agreement before the parties before we 23 read this. 24 The entire call, the entire transcript of the call is 25 being read, the parties stipulate and agree that the entire SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5811 49FJSAT1 1 call of the transcript is being read as a result of 2 negotiations between the parties and includes the portions that 3 the government believes are relevant to the issues in this case 4 as well as the portions the defendants believe are relevant to 5 the issues in this case. 6 Your Honor, as I said, this is a call on October 20th 7 of 2000, a prison call at 10:27 am. I will be reading the 8 lines of Omar Abdel Rahman. Mr. Feldman will be reading the 9 lines of Mohammad Yousry. 10 At the appropriate times, Mr. Morvillo will be reading 11 the lines of Abdeen Jabara and Julianne, and Mr. Dember will be 12 reading the lines at the appropriate time of Ramsey Clark and 13 the AT&T record message, and I will be reading the lines of the 14 unknown male. 15 THE COURT: All right. 16 MR. BARKOW: So if Mr. Dember and Mr. Morvillo would 17 join me at the podium. 18 (At this point, Government Exhibit 1733 X, in 19 evidence, was displayed and read to the jury) 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5812 49fesat2 1 THE COURT: All right. Ladies and gentlemen, we'll 2 take a recess. Please remember my continuing instructions not 3 to talk about the case at all. Always remember to keep an open 4 mind until you've heard all the evidence, I've instructed you 5 on the law and you've gone to the jury room to begin your 6 deliberations. 7 We're going to take a break now, and we're going to 8 sit until 1:30 so we may take another break, depending on where 9 we are. And again, if anyone needs a break, just raise your 10 hand. I say that because you sat a little longer than usual. 11 All right. 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 5813 49fesat2 1 (In open court; jury not present) 2 THE COURT: May I just point out -- you can all be 3 seated. This is another transcript with -- transcript that I 4 have didn't precisely correspond in pagination to the 5 transcript that was on my laptop screen. 6 MR. BARKOW: Your Honor, just for the record, it's the 7 same issue with respect to conversion to PDF. 8 (Recess) 9 THE COURT: Please be seated, all. 10 MS. SHELLOW-LAVINE: Your Honor, may I consult with 11 Mr. Barkow for a moment, please. 12 THE COURT: Yes, sure. 13 MR. BARKOW: Your Honor, we just need one moment to 14 confirm something on the next call. 15 MR. MORVILLO: Your Honor, I spoke with Ms. Baker and 16 asked her to come over. She'll be here about a half hour or 17 so. I assume we can take up that matter at the next break, 18 which I thought would be around 12:15, 12:30. 19 MR. BARKOW: Your Honor, we just realized that the 20 government counsel on the next call at least have the wrong 21 transcript. Ms. Shellow-Levine has the right transcript and we 22 want to make sure the Court has the right transcript. 23 The next call, 1201X, is an English call. And we're 24 going to play it with an accompanying transcript on the screen. 25 And all parties with the transcript should have either the end SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5814 49fesat2 1 of the first page or very beginning of the second page. There 2 should be asterisks indicating a redaction. If it has those 3 asterisks, then it's right. If it doesn't, it's an older 4 version. 5 MR. PAUL: I believe we've got it. 6 MR. BARKOW: We're attempting to print out a new one 7 for anyone who doesn't have the right one. 8 THE COURT: There should be asterisks on the first 9 page? 10 MR. BARKOW: Either bottom of the first page or top of 11 the second page. 12 THE COURT: I don't have any asterisks here. 13 MR. TIGAR: And the transcript is an aid to 14 understanding, not the evidence. 15 THE COURT: Right. Would you like me to tell the jury 16 that the transcript is an aid? 17 MR. TIGAR: Yes, please, your Honor, with respect to 18 all English calls, particularly with the number of nonEnglish 19 ones that are here. 20 THE COURT: All right. Do you expect any more English 21 calls today? 22 MR. BARKOW: If I could just have a moment, your 23 Honor. 24 THE COURT: There's 1220. 25 MR. BARKOW: We're not going to get to that, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5815 49fesat2 1 Honor. 2 THE COURT: The 1201. 3 MR. BARKOW: Your Honor, we're having a problem 4 printing. 5 THE COURT: Take your time. 6 MR. BARKOW: The correct copy will be on the screen. 7 We can either go, make another copy somewhere else or the 8 correct copy will definitely be on the screen. 9 THE COURT: You don't have to worry about me. I will 10 follow on the screen. But if defense counsel wants a correct 11 copy, you should take the time to give it to them. 12 MR. BARKOW: I think everyone is OK with that, your 13 Honor. And we'll give everyone the correct copy, including the 14 Court, later today. 15 THE COURT: All right. Everyone ready to begin? OK. 16 Let's call in the jury. 17 MR. BARKOW: Your Honor, if I may, this English call 18 is the same as the last one in that it has redactions. 19 Therefore, the audio files are separate. If I may preface the 20 playing of it as I did the last one by stating that. 21 THE COURT: All right. If you intend to continue 22 after that with 1202 to 1210 -- 23 MR. BARKOW: We do, your Honor, except after 1201 is 24 Exhibit 544. 25 THE COURT: And the next transcript as to which there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5816 49fesat2 1 is a special limiting instruction is 1205X, right? 2 MR. MORVILLO: That's correct, your Honor. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5817 49fesat2 1 (In open court; jury present) 2 THE COURT: Please be seated, all. 3 All right. Ladies and gentlemen, I understand that 4 the next recording that you'll hear is in English and the 5 transcript will be projected for you on the screen. I remind 6 you about my instructions with respect to transcripts of calls 7 that are in English. 8 Remember that it's the recording which is in evidence 9 and the transcript is simply an aid for you in listening to the 10 recording. It's the recording that's in evidence. And if you 11 think you hear something differently on the recording than you 12 see in the transcript, it is, of course, your decision as to 13 what you hear on the recording that counts. As always, you, 14 the jury, are the judges of the facts. 15 All right. 16 MR. BARKOW: Your Honor, at this point the government 17 requests permission to play for the jury what is in evidence as 18 Government Exhibit 1201A and to publish the transcript, 19 Government Exhibit 1201X, on the screen as we play it. 20 This call, 1201A, is in evidence pursuant to a 21 stipulation which is in evidence, Government Exhibit 1319, 22 which explains that it is a redacted version of Government 23 Exhibit 1201, which is in evidence. 24 The call, your Honor, as with the last English call, 25 is redacted. And when we reach portions of the call that are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5818 49fesat2 1 redacted, there are asterisks and there will be a half-second 2 to second pause at each one of those moments. 3 And if we could ask the jurors to put their headphones 4 on. 5 THE COURT: All right. Ladies and gentlemen, if you 6 put your headphones on, dot facing out, turn them on. If 7 anyone can't hear, raise your hand. 8 MR. BARKOW: And, your Honor, for the record, this is 9 a call on October 20, 2000 at 10:15 p.m. between Ahmed Abdel 10 Sattar and Lynne Stewart. 11 May we proceed? 12 THE COURT: Yes. 13 (Government Exhibit 1201A played for the jury) 14 THE COURT: All right. Ladies and gentlemen, you can 15 take your headphones off. 16 MR. BARKOW: Your Honor, at this point the government 17 offers in evidence Government Exhibit 544. 18 THE COURT: All right. Redacted? 19 MR. BARKOW: Yes, your Honor. 20 THE COURT: All right. Government Exhibit 544, 21 redacted, received in evidence. 22 (Government's Exhibit 544 received in evidence) 23 THE COURT: Ladies and gentlemen, several things. 24 First of all, I said that this is redacted, and I 25 believe I've explained redacted to you before. What redacted SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5819 49fesat2 1 means is -- it's a term that's used in legal circles. It means 2 that various material is removed in some way, and that's 3 because of evidentiary principles that are -- legal principles 4 that have nothing to do with your consideration. 5 So when an exhibit is, quote, redacted and you've seen 6 other, quote, redacted exhibits, that does not affect anything 7 that is relevant to you at all. You should just consider what 8 is there. 9 Further, as you will see, this is a newspaper article. 10 And I previously instructed you with respect to newspaper 11 articles. This is not being received for the truth of any 12 matter that is asserted in the article. It's an out-of-court 13 statement by a reporter about various things. So it's not 14 being received for the truth of anything that is contained in 15 the article. 16 And finally, this exhibit is offered only against 17 Ms. Stewart and received only against Ms. Stewart. All right? 18 MR. BARKOW: Your Honor, may I publish Government 19 Exhibit 544 redacted to the jury first by holding it up and 20 then putting it on the Elmo and then reading it. 21 THE COURT: Yes. 22 MR. BARKOW: Your Honor, this is Government 23 Exhibit 544. And may I put it on the Elmo and read it, your 24 Honor. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5820 49fesat2 1 MR. BARKOW: Government Exhibit 544, A14, New York 2 Times International, Friday, October 20, 2000. By Judith 3 Miller and Neil Farquhar. 4 Clinton administration officials are also reported to 5 be looking closely at a videotape broadcast on September 21 by 6 Al-Jazeera, an Arabic satellite television network based in 7 Qatar. On the tape Mr. Bin Laden and Ayman Al-Zawahiri, 8 Mr. Bin Laden's top deputy for military operations, condemned 9 the United States' presence in the Middle East and threatened a 10 "holy war." American military and Middle Eastern officials 11 said they believed that the tape was recorded, quote, sometime 12 between March and May, end quote, although the Taliban 13 government in Afghanistan, under pressure from the United 14 States to hand over Mr. Bin Laden, has asserted that the tape 15 was made four or five years ago. 16 On the tape, Mr. Zawahiri said, quote, the time has 17 come for us and for all mujahadeen to confront this heathen, 18 tyrannical power which has trampled upon our holy sites and 19 occupied our two holy mosques, end quote. The reference was to 20 Islam's most sacred shrines in Mecca and Medina, Saudi Arabia. 21 Quote, these Heathens have spread their forces in Egypt, Yemen 22 and the gulf, killing our children, persecuting our scholars, 23 soiling our holy shrines and stealing our wealth, end quote, 24 Mr. Zawahiri said. 25 The tape also showed Mr. Bin Laden preaching for a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5821 49fesat2 1 holy war. He said his followers should do all they could to 2 establish Islamic law in Muslim countries and, quote, to expel 3 the Jews and the Christians from the sacred places and to 4 endeavor to release our ulema from the United States, from 5 Egypt, from Riyadh and from all Islamic lands, end quote. 6 Ali Al-Kaadi, acting head of news gathering for the 7 network that showed the tape, said in an interview yesterday 8 that the tape had been mailed to the network with no return 9 address. A title on the video says it was produced by the 10 Jihad Media Center in Afghanistan, which Middle Eastern 11 officials said was a dubious name intended to disguise the 12 identities. 13 Middle Eastern and American sources said they believed 14 that the sermons were delivered at a meeting of militant 15 Islamic groups to discuss ways to free Sheikh Omar Abdel 16 Rahman. Mr. Rahman is the blind Egyptian cleric who is serving 17 a life sentence in a federal penitentiary in the United States 18 for his role in the World Trade Center bombing in 1993. 19 At one point the tape focuses on a hand-painted banner 20 on the wall that says, quote, the release of the prisoner Omar 21 Abdel Rahman is a duty to all those capable of it, end quote. 22 Among those at the meeting was Mr. Rahman's son, 23 Assadullah, who is heard off camera calling for armed action to 24 release his father or, according to one account, to, quote, 25 shed blood, end quote, until his father is released from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5822 49fesat2 1 prison. 2 MR. TIGAR: May I confer with Mr. Barkow, your Honor. 3 THE COURT: Yes. 4 MR. TIGAR: We'd like to be heard at the break. 5 THE COURT: Sure. 6 MR. BARKOW: May I have just a moment, your Honor. 7 THE COURT: Sure. 8 MR. BARKOW: Your Honor -- 9 THE COURT: Ladies and gentlemen, why don't we take 10 a -- it's going to be a long morning, since we're going to sit 11 until 1:30. So why don't we take a ten-minute break now. 12 Please remember my continuing instructions not to talk 13 about the case. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5823 49fesat2 1 (In open court; jury not present) 2 THE COURT: OK. Please be seated, all. 3 MR. TIGAR: Your Honor, I thank you for taking the 4 break. There's a -- I am laboring under what is perhaps a 5 misunderstanding. I had thought that among the instructions to 6 be given when this 544 was received would be the same one about 7 Mr. Bin Laden and Mr. Zawahiri not being a member of any 8 conspiracy. I forget the exact words but your Honor repeated 9 it several times as the tape or broadcast to which this article 10 refers was being played. And given that Mr. Taha drops out and 11 we've got Zawahiri and bin Laden, I was under the impression 12 that the same instruction would be given. 13 Whether I'm right or wrong in my impression, I ask 14 that it be given now. That was what I wanted to ask Mr. Barkow 15 about, and we had a different recollection of -- he can explain 16 his position, but that's mine. 17 THE COURT: I'm -- I was not asked to give that 18 additional limiting instruction with respect to 544. And I was 19 explaining the instruction that I would give with respect to 20 544 the other day, and you asked me to give an additional 21 instruction that this was a newspaper article. I was not asked 22 to give the instruction I gave with respect to the videotape 23 itself. 24 So Mr. Barkow doesn't have to explain his position. 25 It was my limiting instruction that I explained. If the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5824 49fesat2 1 parties want an additional limiting instruction, I'll go back 2 and look at the limiting instruction I gave with respect to the 3 video itself. 4 MR. TIGAR: I wasn't questioning or challenging, and 5 I'm perfectly -- I accept responsibility, your Honor, for my 6 own failure to understand or to ask or whatever, but I'm now 7 requesting it. 8 THE COURT: Sure. I can -- I'll tell the jury -- 9 MR. BARKOW: Your Honor, we do not believe that a 10 limiting instruction is warranted here. 11 First, these statements, as the Court instructed the 12 jury, are not offered for the truth. And so these are not 13 coconspirator statements at this point. And the other limiting 14 instructions that the Court gave we think are appropriate and 15 are sufficient. 16 And furthermore, we don't think that it's necessary, 17 for example, to give an instruction like this every time these 18 people's names are mentioned. And there -- we opposed it 19 initially, but we viewed at that point it as being proper 20 because it was not -- they were not coconspirator statements 21 and Taha's was. At this point this exhibit has been limited in 22 several ways as a newspaper article and not offered for the 23 truth against only one defendant. 24 And we think that it's not appropriate to reiterate 25 the instruction that relates to the video, which is proper SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5825 49fesat2 1 because the Court found they're not coconspirators in a context 2 where a coconspirator was there and his statements were offered 3 as coconspirator statements each time these people's names are 4 mentioned. 5 So we would oppose the request at this point. 6 THE COURT: It's a fair comment that there is no need 7 for the continuing instruction. And this is an article which 8 will come up with respect to Mr. Yousry and may come up 9 subsequently with respect to Mr. Sattar. 10 But since it's the first time that the article comes 11 up, and since it refers to the videotape, it's a reasonable 12 request for me to simply remind the jury as I did when the 13 videotape was played that neither Mr. Bin Laden nor 14 Mr. Al-Zawahiri are alleged to be coconspirators in any of the 15 conspiracies charged in this indictment. 16 MR. BARKOW: That's fine, your Honor. 17 THE COURT: Do defendants agree with that? 18 MR. TIGAR: Yes, your Honor. That is the instruction 19 that your Honor gave before. That is the one that I had 20 requested. 21 THE COURT: All right. What I'll tell the jury is, 22 ladies and gentlemen, just to remind you, as I instructed you 23 when the videotape was played last week, I remind you that 24 neither Mr. Bin Laden or Mr. Al-Zawahiri are alleged to be 25 members of any of the conspiracies charged in the indictment in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5826 49fesat2 1 this case. OK? 2 OK. Does anyone need a break? Otherwise, I'll call 3 the jury. 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 5827 49fesat2 1 (In open court; jury present) 2 THE COURT: Ladies and gentlemen, just to remind you, 3 as I instructed you when the videotape was played last week, I 4 remind you that neither Mr. Bin Laden or Mr. Al-Zawahiri are 5 alleged to be members of any of the conspiracies charged in the 6 indictment in this case. 7 All right. 8 MR. BARKOW: Your Honor, at this point the government 9 requests permission to read and publish to the jury what is in 10 evidence as Government Exhibit 1202X. 11 THE COURT: All right. 12 MR. BARKOW: Your Honor, may Mr. Forkner step forward. 13 THE COURT: Yes. 14 MR. BARKOW: Your Honor, this is a call on 15 October 22nd of 2000 at 8:30 p.m. This call occurs on 16 telephone number 917-676-4997. 17 I will read the lines of Yousef Odeh and Mr. Forkner 18 will read the lines of Ahmed Abdel Sattar. 19 THE COURT: All right. 20 MR. BARKOW: May we proceed? 21 THE COURT: Yes. 22 (At this point Government Exhibit 1202X, in evidence, 23 was displayed and read to the jury) 24 MR. BARKOW: Your Honor, may Mr. Morvillo join me at 25 the podium. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5828 49fesat2 1 THE COURT: Yes. 2 MR. BARKOW: Your Honor, at this point the government 3 requests permission to read and publish to the jury what is in 4 evidence as Government Exhibit 1203X. 5 THE COURT: All right. 6 MR. BARKOW: Your Honor, this is a call on 7 October 23rd of 2000 at 11:57 a.m. I will read the lines of 8 Yousef Odeh and Mr. Morvillo will read the lines of Rifa'i 9 Ahmad Taha Musa. May we proceed? 10 THE COURT: Yes. 11 (At this point Government Exhibit 1203X, in evidence, 12 was displayed and read to the jury) 13 MR. BARKOW: Your Honor, at this point the government 14 requests permission to read and publish to the jury what is in 15 evidence as Government Exhibit 1204X. 16 THE COURT: All right. 17 MR. BARKOW: Your Honor, this is a call on 18 October 23rd of 2000 at 2:41 p.m. back on the telephone number 19 718-422-3513. Mr. Forkner will read the lines of Ahmed Abdel 20 Sattar and I will read the lines of Yousef Odeh. May we 21 proceed? 22 THE COURT: Yes. 23 (At this point Government Exhibit 1204X, in evidence, 24 was displayed and read to the jury) 25 MR. DEMBER: Your Honor, at this time may we read to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5829 49fesat2 1 the jury and also present to them the transcript for Government 2 Exhibit 1205X, which is a conversation on October 23rd, 2000, 3 at 3:40 p.m. between Ahmed Abdel Sattar and Yassir Al-Sirri. 4 THE COURT: Yes. 5 MR. DEMBER: Your Honor, I just remind the Court that 6 this transcript also gets that instruction. 7 THE COURT: Yes. Ladies and gentlemen, this 8 transcript is offered only as to Counts 2 and 3 of the 9 indictment, and it is received subject to connection against 10 Mr. Sattar. I've explained to you what "subject to connection" 11 means. 12 This transcript cannot be considered against 13 Ms. Stewart or Mr. Yousry for the truth of any of the matters 14 asserted in the transcript. 15 MR. DEMBER: Your Honor, I will read the part of 16 Yassir Al-Sirri and Mr. Forkner will read the part of Ahmed 17 Abdel Sattar. May we proceed? 18 THE COURT: Yes. 19 (At this point Government Exhibit 1205X, in evidence, 20 was displayed and read to the jury) 21 MR. DEMBER: Your Honor, Mr. Tigar's requested we 22 start from the beginning again. Can we do that. 23 THE COURT: Sure, go ahead. 24 (At this point Government Exhibit 1205X, in evidence, 25 was displayed and read to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5830 49fesat2 1 MR. BARKOW: Your Honor, at this point the government 2 requests permission to read and to publish what is in evidence 3 as Government Exhibit 1206X. 4 THE COURT: All right. 5 MR. BARKOW: Your Honor, this is a call on 6 October 24th of 2000 at 11:45 a.m. I will be reading the lines 7 of Yousef Odeh and Mr. Morvillo will be reading the lines of 8 Rifa'i Ahmad Taha Musa. 9 Your Honor, this is a call recorded on the telephone 10 917-676-4997. 11 THE COURT: All right. 12 MR. BARKOW: May we proceed? 13 THE COURT: Yes. 14 (At this point Government Exhibit 1206X, in evidence, 15 was displayed and read to the jury) 16 MR. MORVILLO: Your Honor, the government requests now 17 permission to read and display to the jury Government 18 Exhibit 1207X in evidence. 19 THE COURT: All right. 20 MR. MORVILLO: And for the record, your Honor, this is 21 a telephone call over telephone number 917-676-4997 on 22 October 25, 2000, at 6:50 p.m. between Ahmed Abdel Sattar and 23 Rifa'i Ahmad Taha Musa. May we read the call? 24 THE COURT: Yes. 25 (At this point Government Exhibit 1207X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5831 49fesat2 1 was displayed and read to the jury) 2 THE COURT: All right. Ladies and gentlemen, we'll 3 take a ten-minute break. Please remember my continuing 4 instructions not to talk about the case and keep an open mind. 5 (Continued on next page) 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5832 49fesat2 1 (In open court; jury not present) 2 MR. PAUL: Judge, I'm sorry, can we have a brief quick 3 break. 4 THE COURT: Sure. We'll take five minutes. 5 (Recess) 6 THE COURT: OK. I kept the jury somewhat longer than 7 I usually do before the break. I could see Juror No. 9 saying 8 something as she got up to leave. I couldn't hear anything. 9 But, all right. Mr. Barkow? 10 MR. BARKOW: Yes, your Honor, two things. 11 The first is the next piece of evidence that we're 12 going to get to is a piece of Sattar search evidence that the 13 Court had previously ruled admissible and determined a limiting 14 instruction for. And that is Government Exhibit 2014 and the 15 translation, 2014T. 16 And I have the instruction from the transcript that I 17 can read to the Court. It was on page 4383 of the transcript. 18 And the Court stated, quote, there is a sufficient proffer that 19 it's in furtherance of the Count 2 conspiracy and, therefore, 20 it is offered solely against Mr. Sattar for his knowledge, 21 intent and state of mind, subject to connection, against 22 Mr. Sattar for the truth of any statements contained in 2014, 23 end quote. That's at 4383 of the transcript. 24 THE COURT: Do you have a copy? 25 MR. BARKOW: I don't, your Honor, and our printer is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5833 49fesat2 1 not working today. I typed it out myself. I can call it up on 2 my computer and pass up my computer. 3 THE COURT: If you have a copy -- 4 MR. BARKOW: I can put it up on my computer, your 5 Honor, and show the Court my computer, but I can't put it on -- 6 I can also show the Court my notes, but that's not on the 7 transcript. It's July 26th, your Honor. I do have it on my 8 computer, if your Honor would like me to read the transcript 9 off the -- or I can show it to defense counsel and they can 10 confirm I'm right. 11 THE COURT: If you would show it to defense counsel 12 and pass it up. 13 MR. BARKOW: If I could show it to other counsel, your 14 Honor. 15 (Pause) 16 MR. BARKOW: Your Honor, should I pass it up to the 17 Court? It's right in the center of the screen. I've shown it 18 to all counsel. 19 THE COURT: I can actually just get it off what you -- 20 MR. BARKOW: This isn't the LiveNote computer, this is 21 my own. 22 THE COURT: That's right, but I can just get it off 23 what you read. 24 MR. BARKOW: Oh, OK. 25 THE COURT: OK. So the instruction is this exhibit is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5834 49fesat2 1 offered solely against Mr. Sattar for his knowledge, intent and 2 state of mind, and it is received subject to connection against 3 Mr. Sattar for the truth of any of the matters asserted in the 4 exhibit. 5 MR. BARKOW: That's correct, your Honor. And that was 6 the first thing. 7 The second thing is, after we publish that exhibit, 8 the next exhibit is a 51-page transcript. And we would ask the 9 Court perhaps that since there are some issues still that I 10 think remain between the parties to be resolved, and I think 11 some of the attorneys need to leave at 1:30, that perhaps we 12 could break for the day after the 2014 and not start that 13 exhibit. 14 THE COURT: All right. We could do that. 15 How long is 2014? 16 MR. BARKOW: There is a page in Arabic to display, and 17 then English translation is two-and-a-half pages, 18 one-and-a-half spaced, so it should take about 10 minutes. It 19 will actually take us -- 20 THE COURT: That's fine. That's fine. Let's call in 21 the jury. 22 MR. TIGAR: Your Honor, if I may, Ms. Baker is here. 23 I don't know if her schedule was such that she would -- I 24 thought she was going to report to the Court. 25 THE COURT: I thought we would do that after we let SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5835 49fesat2 1 the jury go rather than keep the jury. As between our time and 2 the jury's time ... but I will let all the lawyers go by 1:30. 3 We'll adjourn at 1:30. 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 5836 49fesat2 1 (In open court; jury present) 2 THE COURT: All right. Mr. Barkow. 3 MR. BARKOW: Your Honor, at this point the government 4 requests permission to read and to publish to the jury 5 Government Exhibits 2014 and 2014T which are in evidence. 6 THE COURT: All right. These were -- 7 MR. BARKOW: These are from the Sattar search, your 8 Honor. 9 THE COURT: All right. Ladies and gentlemen, these 10 exhibits are offered solely against Mr. Sattar for his 11 knowledge, intent and state of mind, and received for that 12 purpose. And they are received subject to connection against 13 Mr. Sattar for the truth of any of the matters asserted in the 14 exhibits. 15 MR. BARKOW: Your Honor, may we publish -- this is 16 Government Exhibit 2014, the first of the two pages. 17 THE COURT: All right. 18 MR. BARKOW: And then the second of the two pages. 19 And now, your Honor, if I may read to the jury 20 Government Exhibit 2014T, which is in evidence. 21 THE COURT: All right. 22 Dear brother, praise to God -- Dear brother, peace be 23 upon you. 24 I will summarize the most important of the latest 25 events which are related to the raid of the criminal Egyptian SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5837 49fesat2 1 police on one of the locations in an Aswan province in which 2 some of the brothers are staying and the police's claim that 3 they killed one of them, paren, 'Alaa Abdul Raziq, and the 4 imprisonment of others. I hope that these incidents will help 5 us, God willing, to correctly reassess the position inside the 6 Islamic group as well as the position of the regime. And God 7 is the one who grants help. 8 We initiated contact with those brothers after a long 9 separation that lasted for a few years after the event of 10 Luxor. They in turn contacted Ahmed Abdel Sattar, requesting 11 him to urgently contact the brothers abroad because their 12 conditions were very harsh. They were contacted after 13 confirming their identities and the extent of their 14 relationship with the entity and what were their needs and 15 after confirming the identity of Brother 'Alaa through many 16 contacts, the coordination took place to help them with some 17 money. That was done in a limited way in the beginning of the 18 contact. The conflict with Abu Yasir did not intensify and 19 there was no need to contact them then. 20 After the conflict with Abu Yasir escalated and his 21 continuous attempt to have the issue of the initiative fail, 22 brother Ahmed Abdel Sattar, may God forgive him, notified Abu 23 Yasir of the brothers' phone calls. 24 Abu Yasir tried to get in touch with them, especially 25 Brother 'Alaa, since he is the responsible of the group, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5838 49fesat2 1 when they informed me, I asked them not to contact me at all in 2 order to avoid disturbance and to preserve the unity of the 3 group. Brother 'Alaa, may God have mercy on his soul, replied. 4 He wrote me an eloquent letter expressing his strong commitment 5 to the entity and that he is convinced that the initiative 6 decision is one of the best decisions in the last few years. 7 He asked me to allow him to contact Abu Yasir, convince him of 8 the importance of the initiative, but I declined. I explained 9 to him that the issue is bigger than that and it is better to 10 commit to the unity of the line and not to open the door to 11 unrest, and he did concur, may he rest in peace. 12 I decided to try to get Brother 'Alaa outside of the 13 country because of his dangerous situation in order to have an 14 understanding with him regarding the real situation inside the 15 country, lessen the anxious atmosphere with the regime, which 16 will allow it to have real compliance with the initiative, and 17 we did arrange for that, thanks be to God. Brother 'Alaa was 18 very happy about that. And during all those arrangements, 19 contact with him was through Ahmed Abdel Sattar, knowing that 20 he is not trustworthy to keep the secrets of the brothers and 21 my bitter experience with him for more than once, and God is 22 the one who grants help. 23 In the first meeting with who is going to help Brother 24 'Alaa to go overseas, the man was late for the appointment, 25 which got Brother 'Alaa concerned that a problem may occur. So SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5839 49fesat2 1 he or one of his brothers called Ahmed Abdel Sattar after he 2 arrived in Aswan getting ready to go abroad and he requested to 3 contact them urgently in order to coordinate with them so that 4 they can fix the appointment. And that was achieved, thanks to 5 God. 6 Ahmad Abdel Sattar, may God forgive him, without 7 telling us or asking us for permission, he went and informed 8 Abu Yasir of 'Alaa's phone calls in Aswan. Brother 'Alaa 9 advised me in his last phone call a few hours before the 10 accident that Ahmed Abdel Sattar informed him that it is better 11 to deal with Abu Yasir because he is of a higher hierarchy than 12 Abu Hazim. And 'Alaa said that Abu Yasir contacted him and 13 tried to convince him of some operations. 14 Brackets, missing line. 15 Reasons. And his belief that the initiative decision 16 is for the interest of the group during this period. Abu Yasir 17 tried to lure him, telling him that he can send them all the 18 money they need to help them in the operations. 'Alaa refused 19 to agree with him and informed him that those brothers, (the 20 brothers of the military work) supported Abu Mus'ab in his 21 position in the Luxor event, and they were against Abu Yasir in 22 his persistence in his position from the operation. Abu Yasir 23 was surprised to hear that according to Brother 'Alaa. 24 We were surprised to hear of Brother 'Alaa's murder, 25 the same criminal way used by the Egyptian regime, and the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5840 49fesat2 1 arrest of some of his brothers. We learned the news via a 2 letter from Mr. Muntasir. The Islamic Observation Center, 3 bracket, an Islamic think tank in the UK, bracket, led by 4 Yassir Al-Sirri published false news on the murder of the 5 brother, stating that he was planning an operation against 6 tourism in Aswan on 10/24. I do not know how he got that false 7 information. As a result, the regime was immediately obligated 8 to announce the news and denied that the subject planned an 9 operation. 10 Mr. Muntasir advised me that the police informed him 11 that they were aware of Abu Yasir's pressure on those brothers 12 to carry on operations and they informed him of the same 13 content that Brother 'Alaa told me. And that, of course, was 14 either by wiretapping or torturing the brother to get 15 information from him before killing him, if they have actually 16 killed him. God knows. 17 This is what I can sum up about the accident, and if 18 there is anything that's not clear, please ask and I will reply 19 to you, God willing. 20 And my last prayer in that God is the Lord of all 21 worlds. 22 Yunis, October 27, 2000. 23 THE COURT: OK. 24 Ladies and gentlemen, it's 1:15 and this is a 25 convenient time for us to break for the day. And we'll resume SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5841 49fesat2 1 on Monday at 9:30. It's obviously a long weekend, and so I 2 reiterate with all of the strength that my words can convey, 3 please don't talk about this case at all, among yourselves or 4 with anyone when you go home over the weekend. Please, please 5 don't look at or listen to or read anything about the case. If 6 you should see or hear something inadvertently, simply turn 7 away. 8 Please always remember to keep an open mind until 9 you've heard all of the evidence, I have instructed you on the 10 law and you've gone to the jury room to begin your 11 deliberations. Fairness and justice to the parties requires 12 that you do that. 13 With that, have a very good weekend, and I'll look 14 forward to seeing you on Monday. 15 THE COURT: All right. Let me talk to the lawyers 16 very briefly. 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5843 49fesat2 1 THE COURT: All right. Ms. Baker. 2 MS. BAKER: Your Honor, I'm prepared to update the 3 Court on the status of the ongoing document review, although I 4 did want to ask, having been advised by my colleagues of some 5 of the developments of earlier today, I did want to ask that 6 the Court ask the defendants before we break today what their 7 joint position is as to Government Exhibit 1315. We don't want 8 to forget that before we break for today. I'm happy to talk 9 about the document requests first. 10 THE COURT: OK. 11 MS. BAKER: As a result of additional conversations 12 that I've had with FBI agents this morning, as I do essentially 13 every day, I can tell the Court the following about the status: 14 I had previously received various sets of documents from FBI. 15 And as to the vast majority of those documents, we have either 16 disclosed them or have set forth the government's position in 17 the letters that the government has submitted to date. 18 There are about three documents outstanding from the 19 various sets of documents that I previously received from FBI, 20 and as to those three documents, I am consulting with FBI and 21 I've reviewed them already and am waiting for some additional 22 information from FBI. And I expect to advise about those 23 documents within the next day or two. 24 However, my review of the various sets of documents 25 originally provided to me by FBI led me to request FBI to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5844 49fesat2 1 provide me with certain additional sets of documents. Two of 2 those additional sets of documents I received from FBI within 3 about the last week. Those add up to about a four- to six-inch 4 stack of documents. I am in the process of reviewing those and 5 expect to complete that review today or tomorrow. 6 Additional documents that I requested from FBI had to 7 be retrieved by FBI from offsite storage, which has just 8 happened, and the FBI is now copying those documents. They 9 advise me that those documents are about a one-foot stack of 10 paper and that I should be receiving them within a few days. 11 I will say, just so that the Court and Ms. Stewart's 12 counsel know what to expect, it is possible that of the three 13 documents or so that I first mentioned, that there might be a 14 conclusion that one or more of those documents is responsive 15 and/or that the government will voluntarily disclose it. 16 But as to the remaining documents, that is, the 17 four- to six-inch stack that I'm in the process of reviewing 18 and the additional approximately one-foot stack that the FBI is 19 just now copying, I am doubtful, based on what I know about 20 those documents so far, that the government will conclude that 21 those documents are subject to disclosure or that we will agree 22 to disclose any of them. So although I am reviewing them and 23 seeking the additional ones to review them in an abundance of 24 caution, I don't believe that they will end up being subject to 25 disclosure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5845 49fesat2 1 THE COURT: That description would indicate to me that 2 all the -- the production should be complete by Monday? 3 MS. BAKER: On the assumption that the additional four 4 to six inches that I'm reviewing now and the additional 5 one-foot stack do not yield anything to be disclosed, yes, that 6 is true. 7 If those -- the stack that I'm reviewing now or the 8 stack that is just now being copied yield anything that I 9 believed is responsive or should be disclosed, I imagine it 10 will be necessary for me to consult with FBI about that. 11 And I suspect that the Court is aware from the letters 12 that the government has submitted to date that these documents 13 contain very highly sensitive information, if not -- some of 14 them are actually classified, and that generally they cannot be 15 disclosed without some redaction, either of classified 16 information, or in some instances the government argues that 17 the information should be protected by the law enforcement 18 privilege as we have in some of the letters that we've 19 submitted so far. 20 So in the unlikely event I conclude that any of the 21 documents from the latter two sets should be disclosed, I would 22 probably need to consult with FBI about any appropriate 23 redactions to them. 24 THE COURT: My counsel has always been to err on the 25 side of disclosure, unless there's some reason not to do that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5846 49fesat2 1 I've repeated that often. 2 MS. BAKER: Your Honor, I tried to express through the 3 correspondence I submitted to the Court to date, but let me 4 just summarize the government's position: All of these 5 documents contain sensitive information about technology that 6 the FBI has used to protect the national security of the United 7 States in carrying out foreign counterintelligence or foreign 8 counterterrorism investigations. And so the government is not 9 in a position to disclose information where the disclosure is 10 not required by some legal disclosure obligation, by Rule 16 to 11 the material defense requirement or 18 U.S.C. 3500 or Brady or 12 Giglio. 13 And it is the government's position that even where 14 something might otherwise be 3500 material, that there might be 15 certain pieces of information that, notwithstanding the fact 16 that they might be 3500 material or that they might be a close 17 call under Rule 16, that the Court also needs to take into 18 consideration the law enforcement privilege. 19 So, I hear the Court's position, and I guess I could 20 understand why that is the position that is appropriate in 21 other types of contexts. But because of the nature of the 22 documents at issue here and the information in those documents, 23 the government just cannot always err on the side of 24 disclosure. And the documents really need to be scrutinized 25 individually and very closely to determine whether they are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5847 49fesat2 1 responsive to any of Ms. Stewart's requests and whether there 2 is any appropriate legal basis for disclosing. 3 THE COURT: You know, unless I hear otherwise, if the 4 government production then should be -- it's going to take me 5 some time after this is done. The government production should 6 be complete by Monday. If there is -- if there has to be a 7 caveat on Monday, then so be it. But the defense was going to 8 respond two days after the government was completed, so the 9 government can -- or the defense can respond on Wednesday. If 10 there is some caveat that's left, I'll be there, but defense 11 can respond after the caveat is resolved. But I have to get 12 the materials. 13 MR. TIGAR: Yes, your Honor. We understand the 14 Court's direction. We will file our response either 48 hours 15 after Monday or 48 hours after that caveat's been resolved. 16 And in our response we will address not only the substantive 17 relief we seek, but our rather different view of what the 18 national security concerns are and how that balances out in 19 light of Copeland and Borelli and Alderman and so on. 20 THE COURT: 1315. 21 MR. TIGAR: Your Honor, I spoke to Mr. Fallick as I 22 said I would. We really haven't had a chance to talk 23 substantively. The shape of the playing field changed a little 24 this morning, and we would like to have that opportunity. 25 THE COURT: When will you -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5848 49fesat2 1 MR. TIGAR: May I speak with Mr. Fallick, your Honor. 2 THE COURT: Sure. 3 MR. TIGAR: Your Honor, given the hour and given the 4 holiday, we would ask leave to give our response Friday by noon 5 so that we have a meaningful opportunity to discuss this in 6 light of the holidays, your Honor. 7 THE COURT: That's fine. You can talk to the 8 government about it, too. 9 Yes, Mr. Barkow. 10 MR. BARKOW: Your Honor, Friday at noon is fine, as 11 long as we get a definitive answer there. But the only way the 12 playing field shifted today is that the government had what 13 seemed to be a suggestion by the Court to call Ms. Banout back 14 without her -- a ruling compelling that. And now the defense 15 has seemed to have gone from what was initially a position that 16 these exhibits shouldn't come in to the position that they 17 should, and now again perhaps to the position that they 18 shouldn't. And we think that that should be something that 19 could be resolved very quickly. And we have to prepare 20 witnesses, a witness based on this, and we'd like to know as 21 soon as possible. 22 THE COURT: Friday at noon is fine. 23 And, you know, I know with great clarity what the 24 various positions have been on this subject by both sides, so 25 it's really not necessary to remind me of them. I thought I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 5849 49fesat2 1 set them out pretty fairly when I went over the issue last 2 time. 3 OK. Anything else? OK. 4 (Adjourned to Monday, September 20, 2004, at 5 9:30 a.m.) 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 5850 1 INDEX OF EXAMINATION 2 Examination of: Page 3 VICTORIA BENJAMIN 5804 4 GOVERNMENT EXHIBITS 5 Exhibit No. Received 6 1213 X, 1219 X, 1225 X and 1243 X . . . . 5806 7 544 . . . . . . . . . . . . . . . . . . . 5818 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