6140 49NMSAT1 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 September 23, 2004 8 9:30 a.m. 8 9 Before: 9 HON. JOHN G. KOELTL 10 10 District Judge 11 11 12 APPEARANCES 12 13 DAVID N. KELLEY 13 United States Attorney for the 14 Southern District of New York 14 ROBIN BAKER 15 CHRISTOPHER MORVILLO 15 ANTHONY BARKOW 16 ANDREW DEMBER 16 Assistant United States Attorneys 17 17 KENNETH A. PAUL 18 BARRY M. FALLICK 18 Attorneys for Defendant Sattar 19 19 MICHAEL TIGAR 20 JILL R. SHELLOW-LAVINE 20 Attorneys for Defendant Stewart 21 21 DAVID STERN 22 DAVID A. RUHNKE 22 Attorneys for Defendant Yousry 23 24 (Trial resumed) 25 (Page 6141 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6142 49NMSAT1 1 (In open court; jury not present) 2 MR. FALLICK: Your Honor, I received Mr. Barkow's 3 letter in response to my letter earlier this morning and I 4 would like to this evening to reply. 5 May I be excused now, your Honor? 6 THE COURT: Yes. 7 Ms. Baker. 8 MS. BAKER: Your Honor, just as a housekeeping matter, 9 to follow up on the Court's request of yesterday for exhibit 10 binders, it is the belief of the government team that the Court 11 was previously provided with a binder of the Sattar search 12 exhibits, which is the number range in the 2,000s; also, a 13 binder with the Stewart search exhibits which is the number 14 range with the 2600s, and just yesterday or maybe the day 15 before yesterday that the Court was provided with a complete 16 set of the Yousry search exhibits, which are the 2300s and 17 2400s, although those were not in binders because there are a 18 number of exhibits which are oversized and wouldn't easily fit 19 into binders. 20 Of course, if that's incorrect or if the Court wants 21 an additional copy of it, we will do it. But we thought we 22 would check with the Court first so as not to overburden the 23 Court by duplicating things. 24 THE COURT: With respect to the Sattar search, I 25 believe that the Sattar search materials were provided to me SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6143 49NMSAT1 1 over time as issues came up and then I ruled on rather than a 2 binder of the Sattar search materials admitted in evidence. 3 MS. BAKER: We actually thought that some were 4 provided over time as the government was asking the Court to 5 rule, but then at another point in time that they were actually 6 all together in a binder. 7 THE COURT: I will check. I don't believe so. And 8 the Stewart search material I have. I have not ruled on and I 9 don't believe those are in a binder, but that's okay. They are 10 not in evidence yet and I have them. And, similarly, the 11 Yousry search materials I have. They are also not in a binder. 12 But that's all right. It would be convenient to me if you gave 13 me the Sattar search materials in a binder. Are there any 14 other -- 15 MS. BAKER: There are many other miscellaneous exhibit 16 numbers higher than 404, which is the number that the Court had 17 stated yesterday or the day before, other than the transcripts 18 of recordings and other than those search exhibits. And 19 certainly all of those other miscellaneous exhibits we will 20 compile for the Court into binders. But we just didn't want to 21 duplicate very large sets of material that we thought perhaps 22 the Court might already have. 23 MR. TIGAR: Your Honor, I don't know the Court's 24 practice here, but on behalf of Ms. Stewart we have no 25 objection to your Honor's law clerks or your Honor meeting with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6144 49NMSAT1 1 the paralegal from the government to ex parte, without us 2 present, to get all that set up. If that's the concern, we 3 waive it, your Honor. 4 THE COURT: I don't do that. I do not do that. And 5 so you can listen to my request for documents from everyone. 6 How big is the Sattar search binder? 7 MS. BAKER: Your Honor, we believe that it was 8 actually two two-inch looseleaf binders of Sattar search 9 exhibits. 10 THE COURT: I'll let you know by tomorrow whether we 11 have those binders. I'll issue an order letting you know. 12 Anything else before we continue? 13 MS. BAKER: Your Honor, to answer the Court's question 14 of yesterday regarding the three documents that are still under 15 review, I expect to have final resolution tomorrow. 16 THE COURT: In terms of the next witness? 17 MR. MORVILLO: Your Honor, what we are going to begin 18 with today is a language specialist from the FBI who will 19 testify very briefly about some translations. If the Court 20 likes, I can give you the exhibit numbers now. And following 21 that, I believe Dr. Edwardy from FMC Rochester will be here to 22 testify. 23 THE COURT: What was the resolution with respect to 24 Agent Kearns and the prior audio file? Did the parties discuss 25 it? Is Agent Kearns coming back? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6145 49NMSAT1 1 MS. BAKER: Your Honor, the parties have not discussed 2 it. The government is prepared to call Agent Kearns next week 3 at a time when he is available and when we have reached an 4 appropriate point in the presentation of the evidence. We 5 expect that today we will be starting to present the July 2001 6 prison visit at some point. So we will also be working around 7 that. 8 MR. TIGAR: Your Honor, will Dr. Edwardy will be 9 testifying as an expert? 10 MR. DEMBER: Your Honor, at this point I don't believe 11 any of my questions include solicitations of opinions. I don't 12 think that that's necessary. That's not what I'm planning. So 13 while I will go through his credentials I won't -- I don't plan 14 at this time to ask the Court to accept him as an expert, but I 15 will certainly go through his credentials that will establish 16 that he is, in fact, an expert. 17 MR. TIGAR: Your Honor, we anticipate that the scope 18 of cross may include seeking an opinion and, thus, we would -- 19 we would move then at the appropriate time or the parties can 20 agree that he is. 21 MR. DEMBER: We certainly agree that he is, your 22 Honor, and qualified to give medical opinions. 23 THE COURT: Let's call in the jury. 24 MR. MORVILLO: Shall I bring the witness in, your 25 Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6146 49NMSAT1 1 THE COURT: Yes. 2 MS. BAKER: Your Honor, if it would be convenient for 3 you as far as the Yousry search exhibits, if the Court has not 4 marked on the copies or anything, if the Court would give them 5 back, we can insert them in plastic sleeves and binders and 6 give them back to the Court that way. 7 THE COURT: I'll return to you the government's 8 September 22 letter with the attachments which are the Yousry 9 search. While we are waiting, I am reasonably confident that 10 the Sattar search materials were given to me in Redwelds and 11 that's all right. I don't need them in binders. But I think 12 that they were subsequently -- they were materials that were 13 given to me in different orders, depending on when I was being 14 asked to rule on them. 15 MS. BAKER: Whatever is convenient for the Court. If 16 the Court wishes new copies in binders or if the Court wishes 17 to give them back and have us put them in binders. 18 THE COURT: All I was really looking for was the 19 binders for the exhibit actually admitted in evidence. 20 (Jury present) 21 THE COURT: Good morning, ladies and gentlemen. It is 22 good to see you all. 23 Mr. Morvillo. 24 MR. MORVILLO: Your Honor, the government calls Nevine 25 Aziz. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6147 49NMSAT1 1 THE DEPUTY CLERK: Ms. Aziz, having been previously 2 sworn, you are reminded you're still under oath. 3 NEVINE AZIZ, recalled. 4 THE COURT: Mr. Morvillo, you may examine. 5 DIRECT EXAMINATION 6 BY MR. MORVILLO: 7 Q. Good morning, Ms. Aziz. 8 A. Good morning. 9 MR. MORVILLO: Your Honor, the government requests 10 permission for Ms. Aziz to testify as an expert in the area of 11 Arabic to English translation. 12 THE COURT: Yes. 13 MR. MORVILLO: May I approach, your Honor? 14 THE COURT: Yes. 15 Q. Ms. Aziz, I have just placed before you what has been 16 marked for identification as Government Exhibits 2201A and 17 2201AT, 2201B and 2201BT, 2203A and 2203AT, 2204A and 2204AT, 18 2205A and 2205AT. 19 Do you have those documents? 20 A. I am just trying to find 04T. I can't seem to find it. 21 MR. MORVILLO: May I approach, your Honor? 22 THE COURT: Yes. 23 Q. Ms. Aziz, were you able to find 2204AT? 24 A. Yes. 25 Q. Do you recognize government exhibits that have the AT SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6148 49NMSAT1 Aziz - direct 1 exhibit label? 2 A. Yes, I do. 3 Q. And do you recognize the corresponding government exhibits 4 that don't have the T extension? 5 A. Yes. 6 Q. What are those documents? 7 A. These are documents that I have translated from Arabic into 8 English. 9 Q. And just to be specific, the documents with the T extension 10 are the translations? 11 A. That's correct. The T extension is the translation. 12 Q. So 2201AT, for example, is the translation of 2201A? 13 A. Yes, that's correct. 14 Q. Have you compared all of the exhibits with their 15 corresponding translations? 16 A. Yes, I have. 17 Q. Are, in your opinion, the translations that you prepared 18 true and accurate translations of the corresponding documents? 19 A. Yes, they are. 20 MR. MORVILLO: May I have a moment, your Honor? 21 THE COURT: Yes. 22 MR. MORVILLO: I have no further questions, your 23 Honor. 24 MR. PAUL: Judge, I just have a couple. 25 THE COURT: Mr. Paul, you may examine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6149 49NMSAT1 Aziz - direct 1 MR. PAUL: Thank you. 2 CROSS-EXAMINATION 3 BY MR. PAUL: 4 Q. Good morning, Ms. Aziz. 5 A. Good morning. 6 Q. Ms. Aziz, these documents, when you received, for example 7 2201A, 2201B and so forth, who presented you with those 8 documents? 9 A. My supervisor. 10 Q. Who was that? 11 A. Mr. Joseph Shabouk. 12 Q. Do you know how he spells that name? 13 A. S-H-A-B-O-U-K. 14 Q. And were you told before you were handed these documents 15 where they originated from? 16 A. Sometimes it is on the document. 17 Q. Was it on these documents? 18 A. I have to check each one. 19 Q. Please. 20 A. This one, it doesn't say on the document, but in the body 21 of the document it says it is an interview, for example, in a 22 specific newspaper. 23 Q. What I'm asking you is, do you know where your supervisor 24 received the documents themselves before he turned them over to 25 you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6150 49NMSAT1 Aziz - cross 1 A. No. That I'm not aware of. 2 Q. You don't know where they actually originated from, whether 3 they were found by agents or recovered somewhere? You have no 4 idea as to where they came from, is that right? 5 A. No. 6 Q. So your job was simply to take a document that was handed 7 to you and then translate it from Arabic to English, is that 8 right? 9 A. Yes. 10 MR. PAUL: Thank you. Nothing further. 11 THE COURT: No further questions. The witness is 12 excused. You may step down. 13 (Witness excused) 14 THE COURT: Mr. Dember. 15 MR. DEMBER: Your Honor, the government calls to the 16 stand Dr. David Edwardy. 17 May I retrieve the exhibits there? 18 THE COURT: Yes. 19 DAVID LYNDON EDWARDY, 20 called as a witness by the Government, 21 having been duly sworn, testified as follows: 22 THE COURT: Mr. Dember, you may examine. 23 MR. DEMBER: Thank you, your Honor. 24 DIRECT EXAMINATION 25 BY MR. DEMBER: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6151 49NMSAT1 Edwardy - direct 1 Q. Doctor, speak into the microphone loud and clear so we can 2 hear your testimony. 3 Can you tell us, first of all, what is your 4 profession? 5 A. I am a physician. 6 Q. Where do you work? 7 A. I work at the Federal Medical Center in Rochester, 8 Minnesota. 9 Q. And would you tell us where is the Federal Medical Center 10 in Rochester? 11 A. It is on the grounds of the old Minnesota State Hospital. 12 It is a federal prison medical facility in southeast Minnesota, 13 Rochester. 14 Q. Now, Doctor, would you describe for us your education and 15 your medical experience before you took your current position? 16 A. Yes. I graduated from physician assistants school in Los 17 Angeles in 1979. Shortly thereafter, I went to work for the 18 Federal Bureau of Prisons, first at the U.S. Penitentiary in 19 Long Polk, California, where I was a staff physician assistant 20 for approximately five years. Then I moved to Ashland, 21 Kentucky as a supervisory PA. 22 Q. A PA is a physician assistant? 23 A. Physician assistant. And for approximately a year and a 24 half there in Ashland. Then I moved to the Federal Medical 25 Center in Rochester, Minnesota as an assistant health systems SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6152 49NMSAT1 Edwardy - direct 1 administrator and remained there until I went back to medical 2 school in 1991. I remained on staff as a part-time physician 3 assistant there until completion of my residency, at which time 4 I returned to full-time employment with them as the clinical 5 director. 6 Q. Now, Doctor, would you describe for us what a physician 7 assistant's job is? 8 A. Well, physician assistant is as an adjunct care to a 9 primary care physician providing day-to-day care for simple and 10 sometimes not so simple but uncomplicated medical conditions. 11 It is a physician extender to free the physician for treatment 12 of the more complicated cases. 13 Q. Now, you indicated that you went to medical school. Where 14 did you go to medical school? 15 A. The university of osteopathic medicine in Des Moines, Iowa. 16 Q. Obviously, you received your degree there? 17 A. I received my degree there in 1995. And then I completed a 18 family practice residency with the university of Minnesota in 19 Waseca and Mankato, Minnesota, graduating from that program in 20 1998. 21 Q. Doctor, would you describe for us what osteopathic medicine 22 is? 23 A. Osteopathic medicine is a separate and equal philosophy of 24 medicine. Osteopaths have to complete not only the regularly 25 considered medical disciplines of internal medicine, surgery, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6153 49NMSAT1 Edwardy - direct 1 et cetera, but we have additional training in manipulation, 2 musculoskeletal medicine and components of physical therapy 3 that we incorporate in an overall treatment of the whole 4 patient. 5 Q. And are you a licensed physician? 6 A. I am. 7 Q. And where are you licensed? 8 A. In Minnesota. 9 Q. Now, I believe you indicated that you're currently the 10 clinical director at the Federal Medical Center in Rochester? 11 A. That is correct. 12 Q. Do you also at this time hold other positions other than 13 that? 14 A. I moonlight at several area emergency rooms, evenings and 15 some weekends. 16 Q. As a physician? 17 A. As a physician, yes. 18 Q. And have you had any military service? 19 A. I retired from the reserves, naval reserves, in 2001. 20 Q. And did you hold any medical positions while you were in 21 the armed services, naval reserves? 22 A. I was a physician assistant until completion of medical 23 school and residency, and then I was transferred within the 24 naval reserves to the medical corps, and I finished my time as 25 a physician. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6154 49NMSAT1 Edwardy - direct 1 MR. DEMBER: Your Honor, at this time I would ask that 2 Dr. Edwardy be permitted to testify in the general area of 3 medical care. 4 MR. TIGAR: No objection, your Honor. 5 THE COURT: All right. 6 Q. Dr. Edwardy, you indicated that you're a physician and a 7 clinical director at the Federal Medical Center at Rochester, 8 is that correct? 9 A. That is correct, sir. 10 Q. And what does it mean to be the clinical director there? 11 A. It means I go to a lot of meetings. 12 Q. You have to speak louder. 13 A. It means I go to a lot of meetings. 14 Q. What are your duties and responsibilities? 15 A. I have overall oversight for the medical programs of the 16 facility acting as the overseer of the medical physicians, the 17 physician assistants and working with the departments of 18 psychiatry and nursing in the overall provision of medical 19 care. 20 Q. Do you also as part of your responsibilities treat patients 21 or inmate patients at the facility? 22 A. Yes. I have an individual clinical load of patients that I 23 see and provide care to. 24 Q. Are you the essentially the chief medical officer for the 25 facility? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6155 49NMSAT1 Edwardy - direct 1 A. That would be correct, yes. 2 Q. And are you responsible for the medical care for all the 3 inmate patients at the Federal Medical Center at Rochester? 4 A. For their medical problems, yes, sir. 5 Q. And are you responsible for supervising the care of those 6 inmate patients? 7 A. Yes. 8 Q. Now, how long have you held your position as clinical 9 director at Rochester? 10 A. Since August of 1998. 11 Q. And is that when you first started at the facility? 12 A. No. As I noted, I came there as an assistant hospital 13 administrator in '86. 14 Q. When you returned as the clinical director you were a 15 full-fledged physician? 16 A. That is correct, yes. 17 Q. Just briefly would you describe what kind of a facility is 18 the Federal Medical Center at Rochester? 19 A. It is a prison that's also a hospital. We are an 800-bed 20 joint commission accredited medical facility. We provide a 21 full range of medical services within the walls with 22 consultations as needed from specialists at the Mayo Clinic. 23 Q. What is the Mayo Clinic? 24 A. The Mayo Clinic is one of the world's premier medical 25 institutions. The Mayo brothers in the 1800s came up with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6156 49NMSAT1 Edwardy - direct 1 idea of a group practice where a group of physicians all of 2 differing areas of expertise in one location would bring all 3 their knowledge collectively to bear on the problems of a 4 patient with a complicated medical problem. 5 Q. And where is the Mayo Clinic located? 6 A. In Rochester, Minnesota, southeast Minnesota. 7 Q. How far is that from the Federal Medical Center in 8 Rochester? 9 A. About eight blocks. 10 Q. Now, let me just ask you some questions about the staffing 11 at the Federal Medical Center. During the time that you have 12 been the clinical director, approximately how many physicians 13 have you had on staff to care for the inmate patients? 14 A. Four to seven. 15 Q. And you indicated you're also responsible for physician 16 assistants in the facility? 17 A. Yes, that's correct. 18 Q. Approximately how many physician assistants have worked at 19 the facility at a given time? 20 A. Four to six. 21 Q. And can you approximate for us the number of nurses who 22 work at the facility? 23 A. I believe we currently have approximately 60 nurses. 24 Q. Do you supervise the nursing staff yourself? 25 A. Not directly, no. There is a director of nursing who is in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6157 49NMSAT1 Edwardy - direct 1 charge of the nursing programs. 2 Q. Does the facility have a dental staff? 3 A. Yes, we have a dental staff. 4 Q. What does that consist of? 5 A. One to two dentists. Currently, we just have one. 6 Q. Generally, it is one or two? 7 A. We are supposed to have two. 8 Q. Does the dental staff come under your supervision? 9 A. No, they do not. 10 Q. They are under their own supervision? 11 A. Yes. Chief dental officer supervises the dental 12 department. 13 Q. Does the facility also have mental health professionals on 14 their staff? 15 A. Yes. We have psychiatrists. There is a chief of 16 psychiatry, staff psychiatrists, and psychologists. 17 Q. Approximately what's the number, total number, would you 18 estimate? 19 A. Total number is 10 to 12. 20 Q. And do those professionals come under your supervision? 21 A. No, they do not. 22 Q. Now, Doctor, let me ask you about a particular inmate 23 patient who was at the Federal Medical Center at Rochester 24 named Omar Abdel Rahman. Were you familiar with that patient? 25 A. Yes, I was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6158 49NMSAT1 Edwardy - direct 1 Q. And how are you familiar with him? 2 A. When I started he was under the care of another physician. 3 That physician retired and he became my patient. 4 Q. Would you just remind us, when did you start at the 5 facility? 6 A. 1998. 7 Q. Do you remember when in '98 you started? 8 A. August. 9 Q. And is Mr. Abdel Rahman still at the FMC Rochester? 10 A. No, he is not. 11 Q. Do you recall approximately when it was that he was 12 transferred to a different place? 13 A. It was early in 2002, I believe. 14 Q. Now, Doctor, at some point while Mr. Abdel Rahman was at 15 the FMC Rochester, did you in fact treat him as a patient? 16 A. Yes. I was his regular treating physician for quite a 17 period of time. 18 Q. And were you also the clinical director at that time as 19 well? 20 A. Yes, I was. 21 Q. Can you estimate for us approximately how long a period of 22 time were you his treating physician when he was there? 23 A. It was greater than two years. 24 Q. And did you start treating him when you first got to 25 Rochester as the clinical director? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6159 49NMSAT1 Edwardy - direct 1 A. No, I did not. One of the other staff physicians who had 2 been there was his regular treating physician, and then upon 3 that physician's retirement I took over. 4 Q. Did there come a point in time that you stopped being his 5 primary physician while he was still at the facility? 6 A. Yes, there was. 7 Q. And why did you stop being his primary physician? 8 A. Due to other duties that I had as clinical director that 9 required my attention, and we had an excellent physician on 10 staff who, together, we could provide better coverage and more 11 constant presence for him. 12 Q. Now, Doctor, when you were his primary physician how often 13 would you see Mr. Abdel Rahman? 14 A. Generally, twice a week. 15 Q. And normally where would you examine him when you saw him? 16 A. In his quarters in building 1 in the psychiatric building. 17 Q. Doctor, do you speak the Arabic language? 18 A. No, I do not. 19 Q. During the time that Mr. Abdel Rahman was there did you 20 have any staff members in the facility who were fluent in the 21 Arabic language? 22 A. We had a physician assistant who had some facility with the 23 language, I believe, at the time, and she would seem to be able 24 to elicit answers from him in his tongue, but he spoke pretty 25 good English most of the time for the questions I was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6160 49NMSAT1 Edwardy - direct 1 interested in having answered. 2 Q. I'm sorry? 3 A. For the questions that I was interested in having answered 4 he spoke good enough English to give me the information that I 5 needed. 6 Q. Were you able to speak to him in English and get responsive 7 answers to your questions? 8 A. Yes, um-hum. 9 Q. How would you do that? Describe for us generally how you 10 could communicate with him. 11 A. I would ask him how he was doing and he would gruffly say 12 good or point to some part of his anatomy that would hurt. He 13 would say pain in lung or something similar. 14 Q. Now, could you describe for us generally, Doctor, the 15 medical problems that Mr. Abdel Rahman had while he was at the 16 Federal Medical Center at Rochester? 17 A. Well, he had diabetes. He required insulin. He was blind. 18 He had hepatitis C. He had some gallstones. He had peripheral 19 artery disease as a result of not only of his age and his 20 diabetes -- 21 Q. Where was that problem? 22 A. Peripheral artery disease. It was in his lower 23 extremities, in his legs. He had swelling, he had sores, which 24 would break out occasionally due to trauma, kicking things, not 25 taking good care of his feet, and he would get infections that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6161 49NMSAT1 Edwardy - direct 1 we had to try to deal with. 2 Q. Those problems with Mr. Abdel Rahman's lower extremities, 3 were they essentially the result of his problem with diabetes? 4 A. Yes, that's correct. He had very decreased sensation in 5 his lower legs, so he wouldn't know when he got a sore or when 6 he kicked something and damaged himself. He wouldn't know. 7 Q. Doctor, were you and the medical staff at the Rochester 8 facility able to treat Mr. Abdel Rahman's medical problems? 9 A. Yes, um-hum. We had nurses who helped us out in address 10 changes that the aides made extra rounds, and, like I said, I 11 saw him twice a week generally. 12 Q. By the way, Doctor, approximately how often would a 13 physician assistant see Mr. Abdel Rahman while he was at the 14 facility? 15 A. Almost daily. 16 Q. And how frequently would the nursing staff see Mr. Abdel 17 Rahman while he was there? 18 A. Several times a day. 19 Q. Let me ask you specifically about the type of treatment 20 that the medical staff provided Mr. Abdel Rahman for his 21 diabetes and those related problems that you just mentioned. 22 What was the general nature of the treatment? 23 A. Well, we tried to advise him on diet, and we would treat 24 his blood sugar by regularly checking and giving him 25 appropriate doses of insulin. He got medications which would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6162 49NMSAT1 Edwardy - direct 1 help preserve his kidney function as a result of his diabetes 2 and treatment for his blood pressure. He would receive 3 antibiotics as needed for infections that he would get. We 4 applied lotions to his legs and extremities. Treatment of any 5 infections that he would have we would treat them aggressively. 6 Q. Normally, how frequently would he be given insulin? 7 A. Twice a day was his regular schedule dose. 8 Q. Did there come a time where you would reduce the amount of 9 insulin you would provide to Mr. Abdel Rahman? 10 A. Yes. 11 Q. What were the circumstances when you would do that? 12 A. Periodically he would go on fasts either for religious or 13 other reasons. And when he would not eat, of course, we would 14 not want to give him his full dose of insulin. 15 Q. Why is that? 16 A. The purpose of insulin is to cause the blood glucose to go 17 into the cells and be absorbed. If he doesn't have not glucose 18 to be absorbed, his blood pressure could fall, he could suffer 19 hypoglycemic shock, insulin shock, he could pass out, have 20 seizures, even die. 21 Q. During the time that he was fasting medically you couldn't 22 give him insulin or it would endanger his health? 23 A. It would endanger his health, yes. 24 Q. Other than when he was fasting, did you or the staff at the 25 Federal Medical Center at Rochester ever withhold insulin from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6163 49NMSAT1 Edwardy - direct 1 Mr. Abdel Rahman? 2 A. No. 3 Q. And was it only done for medical reasons? 4 A. Yes. 5 Q. Now, did Mr. Abdel Rahman always take his insulin when it 6 was given to him? 7 A. No. Sometimes he would refuse. 8 Q. And did that become a problem at times? 9 A. Yes, it would. Because his blood sugars would sometimes go 10 very high, which causes the complications of the diabetes. 11 Yet, he still would not be willing to take his insulin. There 12 were other times when he would refuse to have monitoring blood 13 tests done, so we couldn't absolutely know where we would 14 stand, and I was uncomfortable continuing to administer 15 medication without having a baseline framework of what was 16 going to happen if we gave the full dose. 17 Q. Now, when Mr. Abdel Rahman refused to take his insulin, 18 what did you and the staff do to try to persuade him? 19 A. We continually emphasized to him that this was hurting his 20 health, that he needed to let us help him by measuring the 21 things that we needed to measure, so we could do what we needed 22 to do. 23 Q. Besides the insulin, did Mr. Abdel Rahman ever refuse to 24 take some of the medications that you prescribed? 25 A. Yes. He refused a lot of medications and seemingly for no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6164 49NMSAT1 Edwardy - direct 1 good reason that we could figure out. 2 Q. Did you also try to persuade him to take his medication? 3 A. Constantly talked to him about diet, medication, other 4 things. 5 Q. You mentioned diet, Doctor. Was there a problem -- 6 THE COURT: Doctor. Could you make sure to keep your 7 voice up. 8 A. Mr. Rahman's diet. He would buy things from the commissary 9 which were the worst choices that a diabetic could make. He 10 would enjoy the high-fat, high-salt, high-caloric items. 11 Q. And did you ever try to counsel him against buying those 12 things from the commissary? 13 A. Every time I would visit him. If we had a commissary sack 14 there, I would go through it with him and I would point out why 15 the things that he had chosen were going to do him in. 16 Q. By the way, Doctor, generally, do the inmates at the 17 Federal Medical Center at Rochester get their meals from the 18 commissary, or is that something different? 19 A. Commissary is extra items. They are provided food from the 20 food service department. 21 Q. And were you aware of the diet that was given to him by the 22 food service? 23 A. Yes, um-hum. 24 Q. Was that appropriate for a person -- 25 A. It was an appropriate diet. But he didn't like it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6165 49NMSAT1 Edwardy - direct 1 MR. DEMBER: May I have a moment, your Honor? 2 THE COURT: Yes. 3 Q. Now, Doctor, besides the medical staff at the Federal 4 Medical Center at Rochester, at times to treat Mr. Abdel 5 Rahman, did you bring doctors from the outside? 6 A. Yes. We had available the specialists from the Mayo Clinic 7 who saw him on occasion. 8 Q. And what were they actually doing? Would they actually 9 treat him? 10 A. They were to provide us -- provide me with advice on things 11 that might become necessary. He had developed some ulcerations 12 on his lower legs as a result of his diabetes that I was 13 concerned might turn into a more serious infection and require 14 a surgical procedure. And I had asked one of the surgical 15 physicians to make a house call and have a look at this because 16 I had told him everything was going on, but sometimes you have 17 to look and see. So they came out to check Mr. Rahman out. 18 Q. That was a surgical physician from the Mayo Clinic? 19 A. Correct. 20 Q. And did they examine him? 21 A. Yes, he did. 22 Q. Did they make recommendations to you and your staff? 23 A. They told us that we were doing essentially all the right 24 things. He was receiving good care. But then he wanted some 25 other -- in the event that it might hurriedly become necessary SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6166 49NMSAT1 Edwardy - direct 1 to do something emergent that he have some more physicians from 2 the Mayo come out as a group to examine him and evaluate his 3 general medical condition. 4 Q. Was that done? 5 A. That was done, yes, uh-huh. 6 Q. And did that physician make recommendations to you and your 7 staff? 8 A. They made a few recommendations, but generally they said if 9 it were necessary to do any amputation of his toe it could be 10 done at our facility. It wouldn't necessarily require a town 11 trip. And the other things, they made some minor 12 recommendations for skin care. 13 Q. And to the extent that they made recommendations, did you 14 and your staff adopt those recommendations? 15 A. We did to a large degree. Some of the things were not able 16 to be done due to Mr. Rahman's decision to decline those 17 therapies. They made some recommendations for lotions, the 18 lotions that we could provide him. They had an aroma that he 19 found disagreeable, so he didn't use them. 20 Q. By the way, Doctor, when you were in Mr. Abdel Rahman's 21 cell at the facility, did he ever complain to you about an odor 22 in the cell? 23 A. Yes, he did. 24 Q. Did you detect any odor in that cell? 25 A. None at all. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6167 49NMSAT1 Edwardy - direct 1 Q. Doctor, were any of Mr. Abdel Rahman's medical problems 2 life threatening while he was at the Federal Medical Center at 3 Rochester? 4 A. No, they were not. 5 MR. DEMBER: May I have a moment, your Honor? 6 THE COURT: Yes. 7 MR. DEMBER: Nothing further, your Honor. 8 MR. TIGAR: May I examine, your Honor? 9 THE COURT: Yes, you may examine. 10 CROSS-EXAMINATION 11 BY MR. TIGAR: 12 Q. Good morning again, Dr. Edwardy. 13 A. Edwardy. 14 Q. Dr. Edwardy. I want to start first by asking a few more 15 questions about your medical education that the prosecutor 16 asked you about. 17 You attended the university of osteopathic medicine in 18 Des Moines, is that correct? 19 A. That is correct, sir. 20 Q. You did that after you had spent a number of years as a 21 physician assistant, correct? 22 A. That is correct. 23 Q. And throughout your whole medical career as a physician 24 assistant and now as a physician you have been in public 25 service, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6168 49NMSAT1 Edwardy - cross 1 A. I had a few private-practice jobs immediately after PA 2 graduation, but, yes, generally that is true. 3 Q. You pretty much regard yourself as devoting your career to 4 public service, right? 5 A. Yes, sir. 6 Q. You talked a minute ago about the differences between MDs 7 and osteopathic physician? 8 A. Yes, sir. 9 Q. Now, the college that you went to was very -- stressed the 10 history of osteopathic medicine, correct? 11 A. We were educated in the history of osteopathic medicine, 12 yes, sir. 13 Q. Is it fair to say that osteopathic medicine was something 14 that was originally developed out on the Missouri frontier in 15 the 1870s by a Dr. Andrew Taylor Still? 16 A. That is correct. 17 Q. And Dr. Still had this idea that beyond treating symptoms 18 there was something -- would it be fair to call it a more 19 holistic approach? 20 A. That would be fair, yes. 21 Q. Would you tell the jury, please, what defines that holistic 22 approach to treating the problems of people such as your 23 patient, Dr. Omar Abdel Rahman? 24 A. We try to look at the patient's life situation, how he 25 relates to stresses. The philosophy of osteopathy rests SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6169 49NMSAT1 Edwardy - cross 1 primarily on the fact that you use a large amount of your 2 calories in muscular energy, muscular motion. And if that 3 system doesn't work well, other things might not do so well 4 either. 5 Q. And do osteopathic physicians also generally emphasize 6 comprehensive care for the individual and family? 7 A. Yes. 8 Q. And you are a diplomate of the American Board of Family 9 Practice, correct? 10 A. That is correct. 11 Q. Now, please tell the jury, what is the family practice 12 specialty of which you are a diplomate? Am I pronouncing that 13 correctly? 14 A. Diplomate. Family practice. The board certification for 15 family practice involves all areas of family practice from 16 medicine, psychiatry, obstetrics and gynecology, physical 17 medicine, surgery, pediatrics. Family practice is physician 18 who treats the whole family. 19 Q. Now, you said that the medical center is an 800-bed 20 hospital facility, correct? 21 A. That is correct, yes. 22 Q. And all of the people who are there are serving sentences 23 imposed by federal courts, all the inmates, is that right? 24 A. That's correct. 25 Q. And many of these people have been sentenced to this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6170 49NMSAT1 Edwardy - cross 1 facility or to prison because they have been convicted of doing 2 some very bad things? 3 MR. DEMBER: Objection, your Honor. 4 THE COURT: Overruled. 5 Q. Is that right? 6 A. That's correct. 7 Q. And regardless of what a patient of yours is there for, 8 your task, as you see it, is to help them be as healthy as the 9 circumstances permit, correct? 10 A. Yes, that's correct. 11 Q. In other words, as a doctor you don't care what a person 12 has been convicted of; you are concerned with their physical 13 and mental well-being? 14 A. Yes, that is correct. 15 Q. You would do whatever is within the scope of your 16 professional duty and training to see if you could help that 17 physical and mental well-being, correct? 18 A. Within the confines of the correctional institution, yes. 19 Q. Let's talk for a minute then about the correctional 20 institution. When did Dr. Omar Abdel Rahman first come to your 21 facility? 22 A. I am not sure of that date. 23 Q. Was it some time in 1998? 24 A. I don't know. It may have been. He was there when I 25 arrived. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6171 49NMSAT1 Edwardy - cross 1 Q. Well, where was he housed? 2 A. He had a special housing area of his own in building 1, 3 which is considered the psychiatric and the seclusion facility 4 within the Rochester prison. 5 Q. Was he diagnosed with any psychiatric condition that would 6 indicate that he should be in a psychiatric unit? 7 A. No, not that I'm aware of. 8 Q. Were you aware that he was evaluated by staff psychiatrists 9 or psychologists? 10 A. Yes. 11 Q. And did you have occasion to review the results of those 12 psychiatric evaluations? 13 A. I do not recall specifically. 14 Q. Would it refresh your recollection -- first of all, do you 15 know a Steve Norton? 16 A. Yes, I do. 17 Q. And would it refresh your recollection if I showed you a 18 document prepared by Mr. Norton? 19 A. Sure. 20 MR. TIGAR: May I approach, your Honor? 21 THE COURT: Yes. 22 Q. I'll show you now, sir, what I have marked just for 23 identification as LS49. And the way this works is, if you 24 could read that to yourself and see if it refreshes your 25 recollection. It is not in evidence. We are not going to read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6172 49NMSAT1 Edwardy - cross 1 it to the jury. 2 A. I have read it. 3 Q. So that at least as of the year -- as of December 2000, do 4 you concur that he did not have -- did not exhibit significant 5 mental health problems? 6 A. Yes, I do. 7 Q. And were there administrative reasons then for putting him 8 in this special housing unit, this psychiatric unit? 9 A. Yes. That was my understanding. 10 Q. And those were decisions that were made by the Bureau of 11 Prisons, correct? 12 A. Correct. 13 Q. And you mentioned a while ago the word seclusion. What did 14 you mean by that? 15 A. Seclusion is a term that means the patient is segregated 16 from other contact with other inmates. 17 Q. As a general matter -- we will get to exceptions in a 18 minute -- he would not have contact with other inmates, 19 correct? 20 A. That's correct. 21 Q. And there was a time when he did attend prayers with other 22 inmates. Were you aware of that? 23 A. I was not aware of that. 24 Q. As a general rule, no contact with other inmates? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6173 49NMSAT1 Edwardy - cross 1 Q. You mentioned that you had someone on your staff who spoke 2 Arabic? 3 A. Yes. 4 Q. How often would that person visit Dr. Omar Abdel Rahman? 5 A. She would make her rounds to see him with me to help me 6 with the translation when she was available. And she was a 7 physician assistant on our staff. So she would make 8 independent visits as well to provide care. 9 Q. Now, in addition to no contact with other inmates there 10 were also controls on his -- on Dr. Omar Abdel Rahman's seeing 11 visitors, correct? 12 A. Yes, I believe there were. 13 Q. And he also had restrictions on how often he could call his 14 family, correct? 15 A. That was my understanding, yes. 16 Q. And there were periods of time when the family calls were 17 suspended, correct? 18 A. I do not know that for a fact, no. 19 Q. Now, did you or your staff have occasion in about the end 20 of the year 2000, do you recall having somebody on your staff 21 trying to communicate with his wife, your patient's wife, about 22 the insulin issue? 23 A. I can't recall anything specific about that. 24 Q. Do you recall ever asking somebody on your staff to see if 25 you could ask his family to talk to him about any health issue? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6174 49NMSAT1 Edwardy - cross 1 A. Yes. We were trying to get maybe his wife to lean on him a 2 little bit to get him a little bit more compliant on his 3 medical care. 4 Q. Tell us, please, how did that happen? How were you going 5 to try to get his wife to lean on him to be more cooperative? 6 A. I do not know how specifically we were going to accomplish 7 that. Someone who did have occasion to call him, call the 8 family, was going to ask her to tell him to please take his 9 medication. 10 Q. Now, going back to the psychiatric evaluation, Dr. Norton 11 and others tried to evaluate dangerousness, correct? 12 A. Yes. 13 Q. And they judged that the potential for harm to others was 14 low, correct? 15 MR. DEMBER: Objection, your Honor. 16 THE COURT: Sustained. 17 Q. Was there any reason in terms of potential dangerousness to 18 maintain seclusion on this inmate? 19 MR. DEMBER: Objection, your Honor. 20 THE COURT: Sustained. 21 Q. Is Dr. Norton a qualified psychologist? 22 A. He was. 23 Q. He was? 24 A. He does not work for us anymore. 25 Q. But at the time he worked for you you regarded him as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6175 49NMSAT1 Edwardy - cross 1 qualified? 2 A. Yes. 3 Q. And did you have direct supervision over him? 4 A. No, I did not. 5 Q. Did you have any form of supervision over him? 6 A. No. 7 Q. Now, you did have meetings, did you not, from time to time 8 about Dr. Omar Abdel Rahman's situation with other staff 9 members? 10 A. Yes. We had group meetings where his care in general was 11 discussed. And my opinions and observations of his medical 12 condition were provided as part of those meetings. 13 Q. What was the purpose of these meetings? 14 A. To address all of the comprehensive issues of his care. 15 Q. Did you have such meetings with respect to every one of the 16 800 people that are in your facility? 17 A. No. 18 Q. Was there a special reason or were there special reasons 19 for having -- withdrawn. 20 With respect to how many of the people in your 21 800-patient facility did you have such meetings? 22 A. I believe he was the only one. 23 Q. Who decided that you were going to have these meetings? 24 A. From my standpoint, it was the warden. 25 Q. How often did you have these meetings? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6176 49NMSAT1 Edwardy - cross 1 A. I don't recall exactly. 2 Q. Were these meetings starting to happen when you first got 3 there? 4 A. I don't remember. 5 Q. You don't remember just when they started? 6 A. No, I don't. 7 Q. And were minutes kept of the meetings? 8 A. Yes, they were. 9 Q. And the meetings dealt with the whole range of issues 10 related to this one inmate, correct? 11 A. That is correct, yes. 12 Q. Psychology? 13 A. Um-hum. 14 Q. Medical? 15 A. Yes. 16 Q. Legal, legal calls? 17 A. Without a copy of the meeting minutes in front of me. I 18 believe you. 19 Q. No. I do, too. 20 MR. TIGAR: May I approach, your Honor? 21 THE COURT: Yes. 22 MR. TIGAR: Since I only have one copy of it, may I 23 stand beside the witness to show it to him? 24 THE COURT: Yes. 25 Q. Doctor, here are some things that have been provided to us, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6177 49NMSAT1 Edwardy - cross 1 some minutes. And I am looking at the one for February 24, 2 1999. 3 A. Okay. 4 Q. And you were present at that meeting, correct, Dr. Edwardy? 5 A. Yes, I was. 6 Q. Just going through the issues, psychology, medical issues, 7 legal call, correct? 8 A. Yes. 9 Q. Recreation, yes? 10 A. Yes. 11 Q. Personal social call, yes? 12 A. Yes. 13 Q. Commissary? 14 A. Yes. 15 Q. Food services? 16 A. Yes. 17 Q. I'll read the rest: Education, interpreter, inmate Rahman 18 requests, 501 renewal, team meeting, budget, second logbook, is 19 that correct and then the next meeting? 20 A. Yes. 21 You want to take that back? I don't want to keep it. 22 Q. Was it your understanding that your patient was under 23 24-hour video surveillance? 24 A. I have no knowledge of that, no. 25 Q. Did you ever see a video recording of a psychiatric SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6178 49NMSAT1 Edwardy - cross 1 evaluation conducted by a member of your staff? 2 A. I did not. 3 Q. Were you aware at any time of a video camera being placed 4 in or near your inmate's cell? 5 A. Yes. There was a monitor in the officer's station so they 6 could observe what he was doing. 7 Q. And where was that video -- you said it was what? 8 A. In the officer's station, the correctional officer's 9 station at the entrance to that seclusion unit. 10 Q. What field of vision did that camera have? 11 A. His general living area, his sleeping area. 12 Q. And was that -- of the patient -- 13 A. Yes, um-hum. 14 Q. Now, did you ever discuss with the patient his attitude 15 towards a camera that was observing him on that basis? 16 A. No, that never came up. 17 Q. He was blind, is that correct? 18 A. That is correct, yes. 19 Q. Do you remember discussing the video surveillance at a 20 meeting or do you remember it being discussed at a meeting on 21 February 8, 2001? 22 A. Not specifically, sir. 23 MR. TIGAR: May I approach, your Honor? 24 THE COURT: Yes. 25 Q. I am going to show you, sir, some minutes that have been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6179 49NMSAT1 Edwardy - cross 1 provided to us for a February 8, 2001 meeting. 2 A. Okay. 3 Q. Just read No. 11 there and see if that refreshes your 4 recollection. 5 A. You want me to read it out loud? 6 Q. No. Looking at that, does it refresh your recollection 7 that that was discussed? 8 A. I'm reading it. I believe what it says. I still do not 9 specifically recall that being discussed at that meeting. 10 Q. Were you, as a treating physician, aware of religious 11 concerns that your patient had about people observing him 12 naked? 13 A. Yes. He did have some concerns about that and it made some 14 of his examinations difficult because we had to cover him up 15 while we were doing examinations. 16 Q. And as a treating physician what was your understanding of 17 this man's concern about other people seeing his nakedness? 18 A. I had no additional understanding beyond that that it was a 19 religious concern to him. I didn't talk about it with him. 20 Q. Did you understand it was a religious concern? 21 A. Yes, uh-huh. 22 Q. That is, was it your understanding that Muslim men are 23 sensitive to others observing their nakedness? 24 A. At the time I don't recall having particularly noted or 25 commented on that, but I know that's a problem with Muslim SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6180 49NMSAT1 Edwardy - cross 1 women in the community facilities as well. I wasn't 2 specifically aware that it was a big concern for Muslim men. 3 Q. And do you ever recall discussing that with your patient? 4 A. We didn't talk about the philosophy. I explained to him 5 that I had to examine him and he had to take his clothes off 6 for me to do that adequately. 7 Q. And did you ever have a complex conversation with him in 8 the English language? 9 A. No, I did not. 10 Q. And you didn't feel that his English or your Arabic was up 11 to that, right? 12 A. That's correct. 13 Q. Now, you mentioned that your patient had diabetes, correct? 14 A. That is correct. 15 Q. And hepatitis C? 16 A. Yes. 17 Q. What is hepatitis C? 18 A. Hepatitis C is one of the hepatitis, hepatiti. There are 19 currently at least four. Hepatitis C is a long-standing 20 disease. It is usually gotten by exposure to blood or body 21 fluid. It affects the liver. It can progress to cirrhosis or 22 liver cancer. Generally, the body overcomes it or at least it 23 learns to live with it. I don't know how deep you want me to 24 get into this. Currently, there are some treatments regarding 25 immunizations shots, interferon and antiviral medications which SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6181 49NMSAT1 Edwardy - cross 1 can sometimes stop or slow the virus, but not always. 2 (Continued on next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6182 49nesat2 Edwardy - cross 1 BY MR. TIGAR: 2 Q. Now, in addition to that, your patient had some symptoms of 3 hardening of the arteries? 4 A. He had some coronary artery disease, yeah, by definition, 5 because of his age and his diabetes. 6 Q. Did you and the medical records know that he had prior 7 myocardial infarction? 8 A. Yes, he did. 9 Q. What is a myocardial infarction? 10 A. It's a heart attack. 11 Q. So he'd had a heart attack? 12 A. Yes. 13 Q. When did he have that, if you remember? 14 A. I believe it was 1985. 15 Q. So you were giving him medication that is given for high 16 blood pressure? 17 A. Correct. 18 Q. You gave him Atenolol? 19 A. Yes, I did. 20 Q. And is that a beta blocker? 21 A. Yes, it is. 22 Q. What's a beta blocker? 23 A. Several nerve pathways that involve relaxation of blood 24 vessels, beta blockers cause the heart to slow its beat, become 25 more efficient, causes blood vessels to relax and, therefore, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6183 49nesat2 Edwardy - cross 1 lower the blood pressure. 2 Q. And did you also give him Lisinopril? 3 A. Yes. 4 Q. And that's an ACE inhibitor that's correct? 5 A. That's correct. 6 Q. Will you tell the jury, what's an ACE inhibitor? 7 A. The kidneys produce angiotensin converting enzyme. It's 8 converted peripherally -- 9 Q. Stop for just a second. 10 MR. TIGAR: Did the court reporter get that? ACE 11 inhibitor, angiotensin converting enzymes, correct? 12 A. Yes. 13 Q. Please go ahead. 14 A. It's converted in the peripheral circulation to angiotensin 15 converting enzyme II, which is a powerful vasoconstrictor. So 16 when you give an ACE inhibitor, it inhibits that enzyme thus 17 relaxing the blood vessels and improving blood pressure, 18 lowering blood pressure. 19 Q. Now, you also mentioned a number of things; sores, edema. 20 Now, edema is swelling? 21 A. Swelling. 22 Q. Sores, swelling and decreased sensation. And those things 23 are related to diabetes? 24 A. Yes, they are. 25 Q. Now, this -- this is a blind man, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6184 49nesat2 Edwardy - cross 1 A. That is correct. 2 Q. And so is he at increased risk of running into things with 3 his feet as he moves around from a sighted person? 4 A. If he were in a totally new environment, possibly, but he 5 knew everything in his cell. He knew where everything was and 6 he, with normal cautions -- any more than we would getting up 7 in the middle of the night to find our way to the bathroom 8 without a light on, we wouldn't normally be at risk of running 9 into things. 10 Q. But you said he would kick things sometimes? 11 A. Sometimes he would, yes. 12 Q. Because he was angry? 13 A. Well, I don't know that. 14 Q. You don't know. But somehow he would have a result of his 15 foot coming in contact with something, right? 16 A. Yeah. He had things in his room he would leave laying 17 around so... 18 Q. So he would leave things laying around in his room? 19 A. Books in his commissary, sacks, chairs on his bed, yeah. 20 Q. And sometimes -- I mean, do you ever remember him taking 21 his mattress off and sleeping on the floor? 22 A. Yes, I do remember that. 23 Q. And do you remember seeing him standing on a stool up by 24 the window in his cell? 25 A. Yes, I do remember that as well. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6185 49nesat2 Edwardy - cross 1 Q. Now, does the window in his cell, or did the window in his 2 cell look out on the outside world if the person was sighted? 3 A. Yes, it did. 4 Q. Now, in that isolation unit where he is, can he hear other 5 inmates? Could he hear other inmates? 6 A. He could hear, yeah, I'm sure he could, through his open 7 window from the yard in front of that building. 8 Q. And so he could hear people outside, right? 9 A. Yes. 10 Q. Now, you say that he had decreased sensation. Would that 11 make it more likely that if he ran into something with his 12 foot, he just wouldn't feel it? 13 A. Yes, that's correct. 14 Q. And was one of the problems you encountered his -- your 15 patient's need to wash his feet? 16 A. Yes. He had a religious requirement to wash his feet 17 several times a day. 18 Q. And what was your understanding of the religious 19 requirement to wash his feet? Why would he do that as you 20 understood? 21 A. I just understood it as a religious requirement. I didn't 22 delve into it further than that. 23 Q. Did you feel that his washing his feet as a part of 24 whatever religious requirement was contrary to good practice in 25 terms of his health? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6186 49nesat2 Edwardy - cross 1 A. For him it made some of his problems worse, yes. 2 Q. Well, how did his performing his religious obligation make 3 his problems worse, as you observed it? 4 A. It would dry his skin out. It gave him more opportunities 5 to damage his skin by the constant washing. 6 Q. And did it also -- and he also had these sores that 7 wouldn't heal, right? 8 A. That's correct. 9 Q. And did the washing of the feet with his washcloth and then 10 being on the floor increase the likelihood that environmentally 11 borne things -- would pathogens be the right word? 12 A. Bacteria would be fine. 13 Q. Environment borne bacteria would then invade? 14 A. Yes. 15 Q. Now, as a family practice doctor, do you think that the 16 family of a person has a role in them getting better? 17 MR. DEMBER: Objection. 18 THE COURT: Overruled. 19 A. Yes, that's generally true, but we try to make the patient 20 see that he has the primary responsibility for his care and for 21 doing things that will be best for him. 22 Q. Now, the people that are your patients in your 800-bed 23 facility, they are, by virtue of the fact they're prisoners, 24 restricted in certain ways from seeing people that come from 25 the outside world, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6187 49nesat2 Edwardy - cross 1 A. That is correct, yes. 2 Q. But is it your experience that being able to -- that for 3 your patient, for your patient, when he was able to talk to his 4 wife, would that improve his disposition? 5 A. Well, I never saw a direct connection. I never saw him 6 after having talked to his wife and before to make a 7 comparison. So I only assume that's probably true, yes. 8 Q. And based on your experiences as a physician, you would 9 assume that, too, correct? 10 A. I would assume that, yes. 11 Q. And when you say -- based on your experience as a family 12 practice doctor, can a spouse sometimes help the spouse that 13 you're treating, well, take their medication, comply with the 14 regime and so on? 15 A. Yes. Current things are a little more sticky there because 16 now you can't tell the spouse anything about their significant 17 other's condition without specific consent. It gets very 18 complicated. 19 Q. That's that HEPA thing? 20 A. Yes, it is. 21 Q. Well, this is all preHEPA, isn't it? 22 A. It is. We're not under that anyways. 23 Q. And, in fact, you did have a specific concern about this 24 patient, or your staff did, about talking to his wife about his 25 medication, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6188 49nesat2 Edwardy - cross 1 A. Yes. Yes. 2 Q. Now, you've discussed here this insulin issue, right? 3 A. Yes. 4 Q. Now, I want to start with diet. You say your patient often 5 chose to eat things that were inconsistent with his good 6 health, right? 7 A. Yeah, that is correct. 8 Q. And, in fact, do you remember one time you went in and 9 actually noted that you looked at this collection of sodium, 10 cholesterol, sugar and things that he had in the commissary 11 items, and tried to raise that with him? 12 A. Yes, I do. 13 Q. And that's -- in your experience as a physician, that 14 happens, right, patients sometimes don't take their doctors' 15 advice? 16 A. That's true. 17 Q. And you try different ways to get them to do it but they 18 just don't, right? 19 A. That is correct. 20 Q. Now -- and so these items he was eating, they could have 21 some effect on his blood sugar, correct? 22 A. Absolutely. 23 Q. And then there were times when he would be irritable, 24 correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6189 49nesat2 Edwardy - cross 1 Q. And he would express his irritability by refusing to 2 cooperate with procedures that people wanted to do, correct? 3 A. Yes. 4 Q. And then there were other times he would be in fine fettle, 5 right? 6 A. Correct. 7 Q. And indeed, you wrote fine fettle on the chart, right? 8 A. Yes, I did. 9 Q. By that you mean he was ready to talk to you, right? 10 A. He was jovial. He would seem to be in good humor. He 11 would chortle as we were talking about things. 12 Q. Now, help us understand, this insulin, if he is fasting as 13 a part of his religious obligation, that changes -- the 14 fasting -- his body chemistry, correct? 15 A. That changes his insulin requirements drastically because 16 he's no longer taking in the calories. 17 Q. And that's part of it, but that's a part of body chemistry, 18 right? 19 A. Yes, mm-mm. 20 Q. So, and the -- in order to know how much the fast is 21 affecting his need for injected or supplied insulin, you would 22 need to do some tests, right? 23 A. That is correct. 24 Q. And are there some times when your people that work for you 25 would attempt to interact with your patient and he would wave SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6190 49nesat2 Edwardy - cross 1 them away because he said he was doing some part of his 2 religious obligation? 3 A. Yes, that is correct. It is true. 4 Q. And did you regard this as a failure to communicate? I 5 mean, did you believe he was doing his religious obligation in 6 good faith, so far as you could observe? 7 A. I had no reason to argue with that, no. 8 Q. And your staff was acting in good faith, correct, trying to 9 do their job, right? 10 A. Yes. 11 Q. And this was simply a -- what would you call it, a 12 collision of cultures, right? That would be fair? 13 A. That would be fair. 14 Q. Now, in that situation, therefore, when he's fasting, you 15 would try to find out what his insulin needs were, right? 16 A. Yes. 17 Q. And can you help -- a diabetic person such as your patient, 18 do they get -- do they have physical sensations that trigger 19 the perceived need for insulin? 20 A. Until the blood sugar gets extremely high, generally they 21 do not have the same kind of distinctly unpleasurable symptoms 22 that a low blood sugar would provide. High blood sugar, until 23 it gets extremely high, is generally not noticed. That's why 24 diabetics often go on for years without being discovered, 25 because they don't have any symptoms. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6191 49nesat2 Edwardy - cross 1 Q. But you say -- 2 A. But the damage still goes on internally. 3 Q. But I'm saying a person who is accustomed to the fact they 4 have diabetes, when blood sugar gets extremely high, they would 5 have symptoms they might recognize that are consistent with the 6 need for insulin? 7 A. They might, yes. 8 Q. And what would those symptoms be, in your experience? 9 A. They could be blurry vision, which he wouldn't have. 10 Q. He wouldn't have that. 11 A. Inability maybe to balance. More urination as the body 12 tries to get rid of the additional sugar by increasing urine 13 output. 14 Q. And do some of these symptoms, are they similar to symptoms 15 you might have if you were fasting, at least as to, you know, 16 some sort of disorientation? 17 A. Could be, yes. 18 Q. Now, you -- let's go back for a minute, if we can, to these 19 meetings that you had. 20 What other aspects of your patient's care, other than 21 the fact that you have these meetings, were unique to him in 22 your facility? 23 A. Other than his housing, there was nothing unique. He was 24 elderly. He had all these chronic secondary conditions due to 25 his diabetes. And the fact that he was being noncompliant. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6192 49nesat2 Edwardy - cross 1 There was nothing especially unique about his medical 2 condition. 3 Q. You said "other than his housing." So his housing is 4 unique? 5 A. Well, yes, it was. 6 Q. Other than the fact that he had a video camera in his cell, 7 that you had meetings about him, that he had no contact with 8 other inmates, what was unique about it? 9 A. Other than those things? 10 Q. Yes. 11 A. Well, no. There was nothing other than those things. 12 Q. All right. Now, did there ever come a time when members of 13 the staff that you knew about were retaliating against your 14 patient? 15 MR. DEMBER: Objection, your Honor. 16 THE COURT: Overruled. 17 A. I don't recall any incident of a staff member retaliating. 18 Q. All right. Without mentioning times, was there a time when 19 something having to do with the clothing he was getting from 20 laundry -- do you recall anything about that? 21 A. I don't, no. 22 MR. TIGAR: OK. Now -- may I approach again, your 23 Honor. 24 THE COURT: Yes. 25 Q. Doctor, I'm just going to show you one of these minutes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6193 49nesat2 Edwardy - cross 1 And you don't remember how many people were at all these 2 meetings we're talking about, do you? 3 A. There was a lot. 4 Q. All right. Can you, just looking at that -- if you can 5 refresh your recollection, and I'll give you more of them if 6 you like, would you tell the jury, please, what kinds of people 7 were at the meeting in terms of what their various 8 responsibilities were; not their names, but just who was there. 9 A. Well, the hospital administrator. 10 Q. Now -- all right. 11 A. His correctional case manager, a legal assistant, a 12 chaplain, a unit manager, an associate warden, a psychiatrist, 13 a lieutenant -- that's a corrections supervisor -- and myself. 14 Q. And was that pretty much the log of the kinds of people in 15 terms of their responsibilities in the institution that were 16 there for each one of these things? 17 A. There was also a counselor and an education supervisor who 18 normally were not present at this particular meeting that you 19 gave me, but it was a pretty comprehensive list of people. 20 MR. TIGAR: Your Honor, I am about ready to wrap this 21 up, but I would appreciate just a few minutes to look over my 22 notes, if I -- if it's convenient. 23 THE COURT: Sure. We can take our midmorning break. 24 Ladies and gentlemen, please remember my continuing 25 instructions not to talk about the case. Keep an open mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6194 49nesat2 Edwardy - cross 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, you sustained an objection to 3 a question -- 4 THE COURT: The witness may step down. 5 MR. TIGAR: To a question about dangerousness. 6 I'd like to hand up to the Court the exhibit on which 7 that's based, if I may. The government has tendered this 8 witness in an effort to show that this man is receiving 9 excellent care. And they have, throughout the case, beginning 10 with Mr. Fitzgerald, cast aspersions on the idea that he wasn't 11 being treated properly. 12 Well, this document -- and it's just one of many that 13 say the same thing -- reflects that there really is no medical 14 reason for him being kept in 24-hour isolation with a 24-hour 15 video camera with these meetings and all these things, these 16 restrictions on him, and to my knowledge being the only 17 prisoner in federal custody who's held under these conditions. 18 That was something that was brought out in the conditions suit 19 filed in Springfield. 20 And so that's the reason I ask the question. I would 21 like to be able to ask it again and get the answer. And I want 22 to offer this document. 23 MR. DEMBER: Your Honor, a medical conclusion about 24 this man's dangerousness is quite different than a conclusion 25 by law enforcement professionals about his dangerousness. A SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6195 49nesat2 Edwardy - cross 1 psychiatrist who's seeing him within a correctional 2 environment -- and that professional's conclusion is based on 3 obviously medical analysis, not on legal and the basis upon 4 which obviously the people in the Department of Justice 5 concluded differently that these restrictions are appropriate. 6 This obviously should be inadmissible under 403, your 7 Honor. It's just more confusing than enlightening with respect 8 to this issue. And it should be -- this question should not be 9 permitted, your Honor. 10 MR. TIGAR: Your Honor, the dangerousness of this man 11 is a major element to the case. Here's a guy that says he's 12 not. 13 MR. DEMBER: No, it's not, your Honor. The 14 restrictions are what they are, and the failure of these 15 defendants to abide by those restrictions is what's at issue; 16 not whether, in fact, he is or not. 17 THE COURT: I sustained the objection on dangerousness 18 for a couple of reasons: 19 First, there was no foundation with respect to whether 20 this witness had reached any conclusions with respect to the 21 dangerousness of the inmate, or whether it was a -- first. 22 Second, the question came at a point where it appeared 23 to be attempting to elicit hearsay as to the views of someone 24 else. 25 Third, there was an inherent ambiguity in the question SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6196 49nesat2 Edwardy - cross 1 of dangerousness, which also flowed from the lack of 2 foundation, whether the question was directed to whether the 3 doctor concluded that the witness was a danger to himself or to 4 others. So the -- all of those were valid reasons which 5 continue with respect to the questions that were posed. 6 Now, with respect to this exhibit, what's the basis 7 for the admissibility of this exhibit? 8 MR. TIGAR: In the first place, your Honor, if you go 9 back, the threat to others is different from threat to self. 10 THE COURT: I know that. I see that in this exhibit. 11 But that was not the question. 12 MR. TIGAR: I understand. I'm not -- I'm not arguing 13 with your Honor's past ruling. I'm just starting out to talk 14 about the exhibit. 15 The man is tendered as an expert and he's not an 16 expert simply as a treating physician. His qualifications go 17 to the fact that he supervises an 800-bed facility. And under 18 his specific direction are a number of professionals and 19 paraprofessionals. And also the -- relevant to the treatment 20 of his patient are the consultative services of psychologists 21 and psychiatrists. 22 And he attended an osteopathic medical college with a 23 holistic mind/body approach to medicine, which would make him 24 in that -- in this particular field, looking to Daubert-type 25 qualifications, more concerned with that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6197 49nesat2 Edwardy - cross 1 This is a health record that is a part of some 6,000 2 pages of health records furnished to us by the government with 3 respect to this patient. And this doctor, as a supervisor, is 4 responsible for knowing the history of his patients and the 5 treatment, generally speaking, of all the patients under his 6 concern. 7 With specific reference to this patient, your Honor, I 8 proffer to the Court -- and if it's a question of additional 9 relevancy, we can get an expert because it did dawn on me that 10 a diplomat family practice or internal medicine approaching a 11 patient with a complex medical history should be interested in 12 the medical history going back all the way, because this 13 doctor is -- there's a 1985 myocardial infarction -- and to the 14 whole person that is before him. 15 And since this is a document which is -- he can 16 identify as having been taken from these records, it's 17 relevant. And even if he can't identify it, your Honor, I 18 submit it's self-authenticating. 19 MR. DEMBER: Your Honor, the fact that it might be 20 relevant, Dr. Edwardy's treatment of that patient at that time, 21 doesn't make it legally relevant to this case. 22 As the doctor made clear, he doesn't even supervise 23 psychiatric staff, mental health professionals at the facility. 24 There's frankly nothing counsel has said that makes this 25 admissible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6198 49nesat2 Edwardy - cross 1 And it seems to us, your Honor, the whole purpose to 2 offering this into evidence really has nothing to do with his 3 physical health, which is really the basis of what the doctor 4 has testified to this morning. The real basis appears to be to 5 suggest to this jury -- particularly the part about whether he 6 is a threat to others, is to suggest to this jury that the 7 SAMs, the prison restrictions that were placed on Abdel Rahman, 8 should not have been placed on him because of a conclusion 9 reached by a medical professional, mental health professional, 10 in December 2000 in Rochester, Minnesota, who obviously does 11 not have the same access to information that the justice 12 department officials, in fact, the Attorney General of the 13 United States had available to her at that time when she 14 concluded that he was a danger and had to be held under those 15 restrictions. 16 Your Honor has ruled pretrial the defendants have no 17 right at this point to challenge the SAMs. By having allegedly 18 violated them, they can't at trial or in pretrial proceedings 19 challenge the validity of the SAMs. And that seems to be the 20 purpose for which this document is being offered, to challenge 21 those SAMs indirectly, or to suggest to this jury that the SAMs 22 were not valid, should not have been in place and, therefore, 23 these defendants' alleged violation of those SAMs, which 24 obviously is the big part of the first count of this 25 indictment, should be rejected by the jury. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6199 49nesat2 Edwardy - cross 1 That seems to really be the purpose behind the whole 2 document, your Honor, particularly the part about threats to 3 others. It has absolutely no relevance to this case other than 4 that. That is the very reason why it should be excluded. And 5 questions -- any further questions about it should be 6 precluded. 7 MR. TIGAR: Your Honor, I'm not going to respond with 8 respect to what my motive is about this. My motive is to get 9 this case tried. 10 The next thing we're going to hear, your Honor, is a 11 transcript of a prison visit. During that prison visit, as 12 with many others, Sheikh Abdel Rahman complains about his 13 mental -- you know, the situation in which he's being held, the 14 fact that he's in isolation, the medical problems he faces. 15 We've already had evidence that a suit was filed about his 16 conditions. So this isn't the collateral attack on SAMs, your 17 Honor. It is illumination of an issue. 18 And with respect specifically to that prison visit, 19 Mr. Barkow wrote us a letter and said, look, either you agree 20 that nothing Sheikh Abdel Rahman says about his medical 21 condition is offered for the truth or else we don't have a 22 deal. We accepted that so that we could play all of these 23 things under Rule 106. That's fine, it's not offered for the 24 truth. 25 But here we have somebody that's in charge of his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6200 49nesat2 Edwardy - cross 1 care, and with a record replete with evidence about all the 2 circumstances under which he's being held and why that is and 3 what's happening, I really don't see the problem. 4 The argument here is in terms of some motive I have to 5 use something for an improper purpose. Well, you know, if I 6 use something for an improper purpose, or if any lawyer here 7 does, then everybody will know what to do. 8 MR. DEMBER: Your Honor, with respect to what counsel 9 just referred to as the July 2001 prison visit, which will be 10 read to the jury shortly, all of Mr. Abdel Rahman's complaints 11 about his physical condition, his prison conditions, in our 12 view, the government's view, was inadmissible hearsay for the 13 large part. They have agreed it is not being offered for its 14 truth. 15 And that's -- nobody made them agree to that. It's an 16 agreement in which the jury will be instructed that that 17 complaint, those statements by Abdel Rahman during that visit, 18 is not being offered for the truth. If that's not being 19 offered for the truth, then what purpose does this document 20 have? 21 If he's arguing that that is somewhat related to this 22 document, I don't see the connection whatsoever, your Honor, as 23 to what it is. Nobody obviously made the defense agree to do 24 that. We sort of litigated what parts of that visit should or 25 should not have come in. They agreed it's not being offered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6201 49nesat2 Edwardy - cross 1 for the truth. 2 So I just don't see how that has any relationship to 3 this particular document that he wants admitted into evidence. 4 In fact, your Honor, whether counsel -- whether I'm correct as 5 to whether -- what motive, what reason Mr. Tigar has for 6 offering this document, the fact of the matter is the jury, if 7 it sees it, will read this and maybe come to their own 8 conclusion, inappropriately, that the SAMs were inappropriate 9 at that time, unnecessary at that time, and for that reason, 10 under 403, just adds confusion to the case. In fact, it offers 11 nothing of value in proving anything, and for that reason 12 should be excluded. 13 THE COURT: All right. The witness was tendered as, 14 even though he wasn't going to be, an expert with respect to 15 the medical care of Sheikh Rahman. 16 To the extent that the witness himself considered 17 issues of whether the inmate was a danger to himself or others 18 and that affected any care that was being given, I would allow 19 those reasonable questions. It certainly follows from the 20 scope of the examinations. 21 At this point I would not allow LS49 because -- first 22 of all, you can ask if he has seen LS49, but I would not allow 23 LS49 because anything that it would add at this point, any 24 potential relevance would be outweighed by the danger of 25 confusion and unfair prejudice on the issue of what factors go SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6202 49nesat2 Edwardy - cross 1 into the general conclusion about dangerousness and of threat 2 to others. 3 But I will allow questions with respect to this 4 witness' testimony and care and his own conclusions with 5 respect to whether the Sheikh Rahman -- whether he reached any 6 conclusions as to whether he was a threat to himself or others 7 and what the bases for those conclusions were and what entered 8 into those conclusions or what didn't enter into those 9 conclusions, if, in fact, he reached any such conclusions. 10 All right. See you shortly. 11 MR. RUHNKE: Ten minutes, your Honor? 12 THE COURT: Yes. 13 Is this an extra copy? 14 MR. TIGAR: Yes, it is an extra copy. Thank you, your 15 Honor. 16 (Recess) 17 (In open court; jury not present) 18 THE COURT: All right, Ms. Baker? 19 MS. BAKER: Your Honor, we wanted to make the Court 20 and the defense aware that it is the government's view that the 21 cross-examination that Mr. Tigar now seeks, that your Honor has 22 ruled that he may conduct if he chooses to, the government's 23 view is that that would open the door to evidence about Abdel 24 Rahman's dangerousness. 25 And if that cross-examination is conducted, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6203 49nesat2 Edwardy - cross 1 government will reassess certain evidence that it has 2 previously sought to offer that the Court excluded as more 3 prejudicial than probative, and assess what, if any, additional 4 evidence could be offered along those lines. 5 MR. TIGAR: Well, your Honor, I wish they said that 6 before the break so that I could consult with these other 7 lawyers -- 8 THE COURT: I'll take it -- 9 MR. TIGAR: -- about this, you know, threat. 10 THE COURT: No, no. I will -- you know, of course 11 I'll give you the opportunity to consult, and we'll take a 12 little more time. 13 MR. TIGAR: Is that Mr. Dember's view, too, or did he 14 hire it done? 15 MS. BAKER: Your Honor -- 16 THE COURT: Stop. Stop. 17 MR. TIGAR: That was inappropriate, your Honor. I 18 apologize. 19 THE COURT: Hold it. You can all talk among 20 yourselves. 21 To the extent that I was going to allow examination, 22 it was limited examination and on a certain area. And the 23 government says it believes it will open other areas, and so 24 the parties can assess all of these things and we'll take a 25 recess for that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6204 49nesat2 Edwardy - cross 1 (Recess) 2 THE COURT: All right. Let's bring in the jury. 3 MR. TIGAR: May I continue my examination, your Honor. 4 THE COURT: Yes. 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 6205 49nesat2 Edwardy - cross 1 (In open court; jury present) 2 MR. TIGAR: May I inquire, your Honor. 3 THE COURT: All right. The witness is on the stand. 4 Mr. Fletcher? 5 THE DEPUTY CLERK: Dr. Edwardy, you are reminded you 6 are still under oath. 7 THE WITNESS: Yes, sir. 8 THE COURT: All right. You may proceed. 9 BY MR. TIGAR: 10 Q. Dr. Edwardy, you mentioned a window in your patient's cell 11 that -- 12 A. Yes. 13 Q. Was there a time when that window was locked shut, do you 14 remember? 15 A. I believe there was, but when I arrived, it had been 16 opened. The top had been opened to admit air. 17 Q. And during the time that you were the treating physician 18 did that remain the case? 19 A. Yes. 20 Q. Now, we talked about your patient's limited English 21 ability. Did he have access to a radio that played Arabic 22 programs, do you know? 23 A. I don't think so, no. He had his little announcement of 24 prayer times thing, but that was all. 25 Q. Now, you mentioned diet. Are you familiar with the halal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6206 49nesat2 Edwardy - cross 1 diet? 2 A. No, I'm not. 3 Q. Do you know that Muslims have certain dietary restrictions? 4 A. I'm aware of some of the restrictions, yes -- 5 Q. Go ahead. I'm sorry. 6 A. Meats and things. And during certain times of their 7 religious fast they endure -- are not permitted to eat. 8 Q. You would not describe yourself as thoroughly informed 9 about all of the dietary restrictions under which devout 10 Muslims would operate? 11 A. That would be correct, yes. 12 Q. And did you -- did you ever discuss with your patient the 13 reasons, any religious reasons why he was reluctant to eat 14 things that came from the kitchen? 15 A. No, we did not. 16 Q. Now, you mentioned that there were these problems with his 17 lower extremities, his feet, correct? 18 A. Yes. 19 Q. Now, did he also have a lack of sensation compared to what 20 you would call a normal way in his hands? 21 A. Yes, he did. And likewise, that was due to his diabetes. 22 Q. Now, when that happens to a -- withdrawn. 23 Had you ever treated a blind diabetic person on a 24 regular basis before you encountered this patient? 25 A. No, I had not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6207 49nesat2 Edwardy - cross 1 Q. Well, based on your study or based on your observation of 2 this patient, did this numbness or this lack of feeling in the 3 hands make it -- interfere with his ability to read braille? 4 A. He mentioned that several times, sometimes, yes. 5 Q. And you have no reason to doubt that, correct? 6 A. No, I do not. 7 Q. And as a doctor looking at your patient, does this 8 inability to read enhance his sense of isolation? 9 A. Yes, I believe that would be reasonable to say that, yes. 10 Q. And do you believe that a person who has lost their sight 11 develops an enhanced or greater sense of smell or sensitivity 12 to odors around them? 13 A. To other stimuli, yes. 14 Q. I'm sorry? 15 A. Yes, to other stimuli other than sight, yes. 16 Q. So that there would be in your observation a difference 17 between the sensitivity to odors of a blind person and a 18 sighted person? 19 A. That would be fair, yes. 20 Q. Now, do you recall your patient saying to you at times that 21 he just didn't trust anyone? 22 A. I never recall him saying that, that he didn't trust 23 anyone. 24 MR. TIGAR: May I approach, your Honor. 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6208 49nesat2 Edwardy - cross 1 Q. Showing you, sir, something that's been furnished to us. 2 This is Bates 4328 of the Rahman health records. Would you 3 look at that, the O there, and see if that refreshes your 4 recollection. 5 A. Yeah. 6 Q. Take your time. 7 A. Oh, OK. OK. 8 Q. Does refresh your recollection? 9 A. That's what that says, yes. 10 THE COURT: Hold on. 11 MR. DEMBER: Objection, your Honor. 12 THE COURT: Yeah, sustained. Stricken. 13 Doctor, if you're asked to look at a document and 14 asked if it refreshes your recollection, you're not being asked 15 to just read the document. You're being asked to look at the 16 record and asked whether, having looked at the record, it 17 refreshes your recollection so that you are prepared to testify 18 today that that's what happened. 19 So -- the document isn't in evidence, and you're not 20 being asked to read the document. You're being asked 21 whether -- having looked at that, whether it refreshes your 22 recollection that something happened. If it refreshes your 23 recollection, then you should tell the jury it still refreshed 24 what your recollection is. And if it doesn't refresh your 25 recollection, then you can't tell the jury that it does refresh SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6209 49nesat2 Edwardy - cross 1 your recollection. 2 So that's what the purpose of showing you a document 3 and being asked whether it refreshes your recollection is. 4 THE WITNESS: I understand. I would have to say that 5 does not refresh my recollection. 6 BY MR. TIGAR: 7 Q. Were you the treating physician as of May 3rd, 2001? 8 A. Yes, I was. 9 Q. And was it your habit and custom to record the results of 10 your visits? 11 A. Yes. 12 Q. And does the document I show you appear to reflect a 13 recollection you had of that visit at some past time but that 14 you no longer have today? 15 A. Yes. 16 Q. And specifically -- 17 MR. TIGAR: May I approach, your Honor. 18 THE COURT: Yes. 19 Q. -- this part at O. Is that true of that? 20 A. Yes, that is true. 21 MR. TIGAR: May I read that paragraph, your Honor? 22 THE COURT: Yes. 23 Q. O. Mr. Rahman is sick. He is rather surly today in 24 responses, stating more than once that he doesn't trust anyone. 25 When I attempted to examine the wound after they removed the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6210 49nesat2 Edwardy - cross 1 dressings, he would not allow examination before washing in the 2 sink, which makes evaluation of the character of the drainage 3 and the basis of the wound that impossible to assess the wound 4 that appears beefy red and moist. He has no sensation to the 5 big toe. 6 Is that portion of that paragraph? 7 A. Yes. 8 Q. Now, Doctor, were there infections that your patient had 9 that were sent out for laboratory analysis to the Mayo 10 laboratories? 11 A. If you're -- cultures of wound drainage, yes. Yes, we had 12 done that. 13 Q. And you got those reports back, correct? 14 A. Yes. 15 MR. TIGAR: May I approach, your Honor. 16 THE COURT: Yes. 17 Q. Showing you this document which is Bates numbered 5454, is 18 that a lab report? 19 A. Yes, it is. 20 Q. But that lab report, what I just showed you, that doesn't 21 reflect anything was done to the patient, correct? 22 A. I'm sorry. Would you repeat the question. 23 Q. That lab report is just a testing of some samples that were 24 sent to the clinic, correct? 25 A. Yes, that's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6211 49nesat2 Edwardy - cross 1 Q. Now, when you first arrived at the facility, your patient, 2 the man who became your patient, was already in this special 3 housing unit, correct? 4 A. Yes, he was. 5 Q. And at that time his primary treating physician was someone 6 else, right? 7 A. Yes. 8 Q. You became that later, correct? 9 A. Yes. 10 Q. Now, approximately how many patients do you keep on your 11 rotation? 12 A. On my personal patient load? 13 Q. Yes, on your personal -- is that what you call it, a 14 rotation? 15 A. Well, it's a patient load, based on -- I was responsible 16 for the overall care of approximately 200 of the general 17 population inmates, those who were not sent to Rochester 18 specifically for medical care. 19 Q. So your patient load was 200? 20 A. Yes. 21 Q. Now, in that connection at -- when Dr. Rahman, Dr. Abdel 22 Rahman was your patient -- by the way, did you ever have a 23 discussion with him about how he would prefer to be addressed? 24 A. I don't recall that, no. 25 Q. What did you call him? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6212 49nesat2 Edwardy - cross 1 A. Mr. Rahman. 2 Q. Mr. Rahman? 3 A. Yes. 4 Q. And he never objected to that? 5 A. No, he never did. 6 Q. Did any of your staff ever tell you that he objected to 7 that, being called in that way? 8 A. Not that I recall. 9 Q. So he was already in this special housing unit, correct? 10 A. Yes. 11 Q. And did you at the time you became his treating physician 12 take a look at his medical records? 13 A. Well, yes, of course. 14 Q. And did you also review the records of any psychiatric or 15 psychological consultations that had taken place? 16 A. I cannot specifically recall reviewing them, but I'm 17 certain that I must have in the course of review of his record. 18 Q. And was there anything different about the way that your 19 patient was to be handled in the event of a serious or 20 life-threatening medical emergency as compared to other people 21 under your care? 22 A. Yes, there was. 23 Q. And was one of those differences that he could not be 24 transported from the special housing unit without direct 25 authorization from the warden? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6213 49nesat2 Edwardy - cross 1 A. That's correct. 2 Q. And that that was so even if he had a serious or 3 life-threatening medical emergency, correct? 4 A. That's correct. 5 Q. And this was a matter that was decided by the warden 6 consistent with her responsibility, correct? 7 A. Yes. 8 Q. And that is to say, it was not a decision made by the 9 medical staff or by the administrative staff, correct? 10 A. That's correct, but I do not believe that the warden would 11 have ever overruled the medical staff had we said that he was 12 in danger of dying and needed to be transferred. 13 MR. TIGAR: Thank you very much. I have no further 14 questions. 15 THE COURT: All right. 16 MR. DEMBER: May I? 17 THE COURT: Mr. Dember, you may inquire. 18 REDIRECT EXAMINATION 19 BY MR. DEMBER: 20 Q. Doctor, just a few questions. 21 Counsel asked you initially about osteopathic 22 medicine. And by the way, at the Federal Medical Center at 23 Rochester, besides yourself and your credentials, did the other 24 physicians on staff have medical -- regular medical degrees as 25 well as other types of degrees? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6214 49nesat2 Edwardy - redirect 1 A. Yes. 2 Q. And by the way, do you know whether there are any doctors 3 of osteopathic medicine that work at the Mayo Clinic? 4 A. There are many DOs who work at the Mayo Clinic. 5 Q. Now, at some point during the question you mentioned that 6 Mr. Abdel Rahman's cell was unique. What did you mean by that? 7 A. Well, it was larger than the individual cells in the rest 8 of the seclusion unit. It had an ante room that we had to 9 enter first before we would enter his living area. And it 10 was -- I think it was substantially larger and more 11 comfortable, if you will, than the rest of the cells in the 12 seclusion area. 13 Q. By the way, do you recall what floor of the building 14 Mr. Rahman's cell was? 15 A. It was on the second floor. 16 Q. And just a couple more things. From your review of -- your 17 treatment of Mr. Abdel Rahman and review of records as such, 18 did Mr. Abdel Rahman have any mental illness? 19 A. No, he did not. 20 Q. And just to clarify one other thing. When you indicated 21 before that Mr. Abdel Rahman would refuse his insulin at 22 times -- 23 A. Yes. 24 Q. -- was that times other than when he was fasting? 25 A. There were other times, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6215 49nesat2 Edwardy - redirect 1 MR. DEMBER: Thank you. Nothing further, your Honor. 2 THE COURT: All right. 3 MR. TIGAR: May I have just a moment, your Honor. 4 THE COURT: Sure. 5 MR. TIGAR: One -- I better not say one. Limited to 6 scope. 7 THE COURT: Yes, you may examine. 8 RECROSS EXAMINATION 9 BY MR. TIGAR: 10 Q. Dr. Edwardy, the ante room of which you spoke -- 11 A. Yes. 12 Q. -- your patient didn't have access to that, correct? 13 A. Correct. 14 Q. That is, that was an ante room that was like a sallyport? 15 A. Yes, correct. 16 Q. And just to refresh us, what's a sallyport? 17 A. It's a secure area that you go in. First, you enter 18 through the outer door, and then that door closes behind you 19 and is locked. And then the inner door opens to allow you 20 passage into a given area so the person who's in the inner room 21 can't get out to the outside. 22 Q. So the sallyport is a form of isolation of the secure area 23 beyond the ante room, correct? 24 A. Yes, that's correct. 25 MR. TIGAR: No further questions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6216 49nesat2 Edwardy - recross 1 MR. DEMBER: Nothing further, your Honor. 2 THE COURT: All right. The witness is excused. You 3 may step down. 4 (Witness excused) 5 THE COURT: All right. 6 MR. BARKOW: Your Honor, may Mr. Forkner step forward. 7 THE COURT: Yes. 8 MR. BARKOW: Your Honor, at this point we request 9 permission to read and publish to the jury what is in evidence 10 as Government Exhibit 1228X. 11 THE COURT: All right. 12 MR. BARKOW: Your Honor, this is a call that occurred 13 on May 7th of 2001 at 5:31 p.m. Mr. Forkner will read the 14 lines of Ahmed Abdel Sattar, and I will read the lines of 15 Abdullah Abdel Rahman. 16 May we proceed? 17 THE COURT: Yes. 18 (At this point, Government Exhibit 1228X, in evidence, 19 was displayed and read to the jury) 20 THE COURT: Let's stop just a moment. Let's take a 21 stretch break. We've got another half an hour to go. 22 (Pause) 23 MR. BARKOW: May we continue, your Honor. 24 THE COURT: Yes. 25 (At this point, Government Exhibit 1228X, in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6217 49nesat2 Edwardy - recross 1 was displayed and further read to the jury) 2 THE COURT: All right. 3 MR. BARKOW: Your Honor, at this point the government 4 requests permission to read and publish to the jury what is in 5 evidence as Government Exhibit 1229X. 6 THE COURT: All right. 7 MR. BARKOW: Your Honor, this is a call on July 9 of 8 2001 at 11:34 a.m. Mr. Forkner the read the lines of Ahmed 9 Abdel Sattar. I will read the lines of Mohammed Abdel Rahman 10 and of the unidentified -- well, and of the unidentified child. 11 May we proceed? 12 THE COURT: Yes. 13 (At this point, Government Exhibit 1229X, in evidence, 14 was displayed and read to the jury) 15 MR. BARKOW: Your Honor, given the time, should I 16 continue until Mr. Fletcher comes back or -- 17 THE COURT: We could, if -- 18 MR. BARKOW: This would be a convenient time to break. 19 We won't finish this call most likely before the lunch hour, 20 but it's not long so if we did it after lunch, we could pick 21 up. But we could start. 22 THE COURT: About how long is this? 23 MR. BARKOW: This is seven pages. 24 THE COURT: Why don't we do it now. 25 MR. BARKOW: Do it now? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6218 49nesat2 Edwardy - recross 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 1230X. 5 THE COURT: All right. 6 MR. BARKOW: Your Honor, this is a call on July 12, 7 2001, 2:57 a.m. Mr. Forkner will read the lines of Ahmed Abdel 8 Sattar. I will read the lines of Mohammed Abdel Rahman and the 9 unidentified male. 10 May we proceed? 11 THE COURT: Yes. 12 (At this point, Government Exhibit 1230X, in evidence, 13 was displayed and read to the jury) 14 THE COURT: We'll break for now for lunch. 15 Ladies and gentlemen, we'll break now for lunch. 16 Please remember my continuing instructions not to talk about 17 the case at all. And before I dismiss you, though, I want to 18 get Mr. Fletcher. He will be seeing you to your lunch. So 19 just relax for one moment. We'll break for lunch. And you may 20 have to wait just a bit for your lunch, so we'll resume at 21 2:15. 22 Please remember my continuing instructions not to talk 23 about the case at all. Please always remember to keep an open 24 mind until you've heard all of the evidence, I've instructed 25 you on the law, you've gone to the jury room to begin your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6219 49nesat2 Edwardy - recross 1 deliberations. 2 Have a good lunch. 3 OK. Mr. Forkner may step down. Can I talk to the 4 lawyers just for a moment. 5 (Pages 6220 through 6224 sealed) 6 (Luncheon adjournment) 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 6225 49NMSAT3 1 (In open court) 2 THE COURT: Shall we bring in the jury? 3 MR. RUHNKE: Yes, your Honor. 4 (Jury present) 5 THE COURT: Good afternoon, ladies and gentlemen. It 6 is good to see you all. 7 The government. 8 MR. BARKOW: Yes, your Honor. 9 At this point the government offers into evidence 10 Government Exhibits 1716X, 1717X, 1720X, 1721X, and 1722X. 11 THE COURT: The government exhibits 1716X, 1717X, 12 1720X, 1721X, and 1722X are received in evidence. 13 (Government's Exhibits 1716X, 1717X, 1720X, 1721X, and 14 1722X received in evidence) 15 MR. BARKOW: At this point, I would also like to state 16 on the record two stipulations orally that the parties have 17 agreed upon. First, the parties stipulate and agree that the 18 DVDs of the July 2001 prison visit, which are Government 19 Exhibits 1716C, 1717C, 1717A, 1717B, 1720C, 1721C, and 1722C, 20 are in evidence to the extent that they reflect the 21 conversations contained in those X transcripts I just offered 22 and that the Court just admitted. 23 THE COURT: All right. 24 MR. BARKOW: Secondly, at this point we request 25 permission to read and to publish to the jury Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6226 49NMSAT3 1 Exhibits 1716X, 1717X, 1720X, 1721X, and 1722X, and I would 2 like to read an oral stipulation with respect to those exhibits 3 as well. 4 THE COURT: All right. 5 MR. BARKOW: The parties stipulate and agree that the 6 admitted portions of these transcripts that I have just listed 7 that are being read to the jury resulted from negotiations 8 between the parties and include the portions that the 9 government believes are relevant to the issues in this case, as 10 well as those portions that the defendants believe are relevant 11 to the issues in this case. 12 At this point, your Honor, we would ask that the Court 13 give the instruction relating to these transcripts. 14 THE COURT: Ladies and gentlemen, statements by Omar 15 Abdel Rahman regarding his prison conditions, health conditions 16 and treatment or mental or psychological condition are not 17 admitted to prove the truth of any matters asserted therein. 18 MR. BARKOW: Your Honor, at this point we request 19 permission to read and publish Government Exhibit 1716X in 20 evidence. Ms. Baker will be reading the lines for Omar Abdel 21 Rahman. If Mr. Feldman can step forward to the witness stand, 22 he will be reading the lines of Mohammed Yousry. Ms. Griffith 23 will join Ms. Baker, with the Court's permission, at the podium 24 to read the lines of Lynne Stewart, and Ms. Baker will also 25 read the other attributions in this transcript, to the female SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6227 49NMSAT3 1 prison guard, unidentified female, and the unidentified male. 2 THE COURT: All right. 3 MS. BAKER: May we proceed, your Honor? 4 THE COURT: Yes. 5 (At this point, Government Exhibit 1716X in evidence, 6 displayed and read to the jury) 7 (Continued on next page) 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 6228 49nesat4 1 THE COURT: It's about 3:30 so why don't we take our 2 mid-afternoon break. 3 Ladies and gentlemen, please remember my continuing 4 instructions not to talk about the case until we're done. 5 (Recess) 6 (In open court; jury not present) 7 THE COURT: Again, I ask people to keep their voice 8 up, speak into the microphone. 9 MS. SHELLOW-LAVINE: Your Honor, perhaps it would make 10 sense at some point today to go through our schedule for the 11 next two weeks and just review all of the days as I've had more 12 than one person ask me about different days. I want to make 13 sure I have them all straight. 14 THE COURT: I did tell the jury that as of next week 15 we will break on -- we will not sit on Monday, we'll break on 16 Wednesday at 12:00 noon; so that next week we'll be sitting 17 Tuesday, Wednesday until noon and Thursday. 18 The following week we will be sitting Monday, Tuesday, 19 Wednesday and Thursday, October 7 -- we'll be sitting Monday, 20 Tuesday, Wednesday, Thursday. That Thursday, October 7th, we 21 will break at 1:00. 22 MS. SHELLOW-LAVINE: Thank you, your Honor. That's my 23 understanding. I just wanted -- 24 THE COURT: I hadn't confirmed that with Mr. Fletcher, 25 but that was -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6229 49nesat4 1 THE DEPUTY CLERK: That's correct. 2 THE COURT: He tells me that's correct. All right. 3 MS. SHELLOW-LAVINE: Thank you, your Honor. 4 THE COURT: OK. Let's bring in the jury. I was in 5 the process of doing the same thing. 6 MS. BAKER: Your Honor, when we resume the reading, 7 may we resume with line 11 for the purpose of continuity. 8 THE COURT: Sure, yes. I tried to break at a break in 9 continuity, but I didn't do it precisely. 10 MR. RUHNKE: Your Honor, just for the Court's 11 information, Mr. Yousry has a doctor's appointment. He has to 12 leave at exactly 4:30, so we'll break at 4:30 today. 13 THE COURT: Yes. I have some procedural issues I 14 wanted to take up with you. Is that -- 15 MR. RUHNKE: Mr. Yousry will waive his presence for 16 those discussions. 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6230 49nesat4 1 (In open court; jury present) 2 THE COURT: All right. 3 MS. BAKER: Your Honor, before we resume, Mr. Feldman, 4 does your transcript continue past page 59, or do you need a 5 more complete copy? 6 MR. FELDMAN: My transcript goes through page 101. 7 MS. BAKER: Thank you. 8 THE COURT: All right. Ms. Baker, you may proceed. 9 MS. BAKER: Mr. Feldman, if you would resume, please, 10 with line 11 on page 52. And please do your best to keep your 11 voice up. 12 MR. FELDMAN: Certainly. 13 (Reading continued) 14 THE COURT: Whenever you're at a convenient time. 15 MS. BAKER: Your Honor, I think we can stop. 16 THE COURT: OK. And probably we'll go back to that -- 17 back up when we start again. 18 OK. Ladies and gentlemen, we're going to break now. 19 Let me give you the schedule for the next two weeks: As I've 20 told you before, we're not going to be sitting on Monday. And 21 we're going to break on Wednesday next week at noon. That's 22 September the 29th. So next week we'll be sitting on Tuesday, 23 Wednesday until noon and then Thursday all day. 24 The following week we'll be sitting Monday, Tuesday, 25 Wednesday, Thursday, but on Thursday, which is October the 7th, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6231 49nesat4 1 we're going to break at 1:00. So that gives you the schedule 2 over the next two weeks. 3 We're breaking for a long weekend. Please remember my 4 continuing instructions. Please, don't talk about the case at 5 all among yourselves, and when you go home, with anyone else. 6 Please remember not to look at or listen to anything or look -- 7 anything to do with the case. If you should see or hear 8 something inadvertently, simply turn away. 9 Always remember to keep an open mind until you've 10 heard all of the evidence, I've instructed you on the law and 11 you've gone to the jury room to begin your deliberations. 12 Fairness and justice requires that you do that. 13 With that, have a very good evening and good weekend, 14 and I look forward to seeing you on Tuesday, 9:30. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6232 49nesat4 1 (In open court; jury not present) 2 MR. RUHNKE: May Mr. Yousry be excused, your Honor. 3 THE COURT: Yes, if he wishes to waive his presence. 4 DEFENDANT YOUSRY: Yes, Judge. 5 MR. BARKOW: Your Honor, may I retrieve the 6 transcript. 7 THE COURT: Yes. By the way, there were -- my copy of 8 1716X left off at page 59 so I was following along on the 9 screen. 10 MS. BAKER: Your Honor, apparently when the copies 11 were put in the binders, pages 60 through the end of 1716X were 12 mistakenly stuck at the back of 1720X. So if your Honor looks 13 at the back of 1720X, they should be there. That was the same 14 edition we had at the lecturn and didn't realize it at the 15 time. 16 THE COURT: OK, thank you. That was -- no problem. 17 What should the pages be? 18 MS. BAKER: Your Honor, if you turn to the back of the 19 1720X tab -- 20 THE COURT: Right. 21 MS. BAKER: -- and work backwards from the end -- oh, 22 I'm sorry. Go to page 59 -- 1720 is supposed to end on page 23 59. So if you take all the rest of the pages from 60 through I 24 believe it's 101. 25 THE COURT: Oh, OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6233 49nesat4 1 MS. BAKER: That's the second half of 1716X. 2 THE COURT: Up to page 101? 3 MS. BAKER: Correct. 4 THE COURT: Thank you. 5 It would be -- I really don't like imposing requests 6 on the parties. It would be useful to get an updated exhibit 7 list. 8 MS. BAKER: Yes, your Honor, we will provide that 9 tomorrow and we will also be providing the other binders of 10 exhibits as soon as we can. 11 THE COURT: Oh, great. Thank you. 12 One reason to ask for the exhibit list is that it 13 gives the parties -- both parties the opportunity to check it 14 and make sure that their notes are the same, so I appreciate 15 your doing that. 16 The government did provide the binder for the Yousry 17 documents, I appreciate that. I really would appreciate it on 18 the Sattar documents because I used my Sattar documents on the 19 various occasions. Some of them ended up going into evidence, 20 some did not. So it would be useful to have the binder of the 21 Sattar documents which are in evidence. 22 Mr. Sattar's counsel was going to give a response on 23 the Taha book I believe today or tomorrow? 24 MR. FALLICK: Your Honor, I believe by the time you 25 get back to your chambers, it will be there. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6234 49nesat4 1 THE COURT: OK. And I can decide it based on what the 2 parties have given me and their written submissions? 3 MR. FALLICK: Yes, your Honor. 4 THE COURT: All right. 5 MR. TIGAR: Excuse me, your Honor. I was consulting 6 with my client when that colloquy occurred. May I just confer 7 with counsel. 8 THE COURT: Sure. 9 MR. TIGAR: Your Honor, I have not read Mr. Fallick's 10 latest submission, and therefore until I do that, I wouldn't 11 have a position on that. 12 As of the last exchange I did have a couple of 13 observations on behalf of Ms. Stewart in light of the presence 14 of the indictment of Count 4. I could give those to the Court 15 by means of a letter, if the Court would find that a more 16 convenient way to get this matter resolved. 17 THE COURT: That would be useful to me. I don't know 18 if I'll decide it on papers or come in and address it with all 19 of you, but if there is no request for anything further, I 20 could decide it on the papers. I could come in on Tuesday and 21 explain to you what I've decided to do, if that's -- so if 22 there are comments that you would like to make and you could 23 put them in a letter, that would be fine. I can't assure you 24 that I will decide it on the papers because if I read 25 everything, I will probably want to ask you questions and I'll SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6235 49nesat4 1 certainly not decide until I've had the opportunity to ask you 2 questions. 3 MR. TIGAR: I will read Mr. Fallick's latest 4 submission, and if there's anything we want to add, I'll have 5 that in your Honor's chambers by the end of business tomorrow, 6 if that's all right. 7 THE COURT: That's fine. The materials from the 8 Stewart search, the defendants proffered materials to the 9 government and -- 10 MR. DEMBER: Your Honor, they handed them over this 11 morning. I haven't had a chance to look at them. I will 12 surely before next Tuesday. 13 THE COURT: OK. 14 MR. DEMBER: By the way, your Honor, we do have a 15 binder with all of the exhibits that are being offered from the 16 Stewart search. There's about 24 of them already in evidence 17 now, but the disputed 21 exhibits are also in that binder. 18 THE COURT: Great. 19 MR. TIGAR: Your Honor, and on that, we would -- after 20 the government has taken a position, we would like to be heard 21 because, at least so far, we have not orally gone through the 22 various individual exhibits that are there. If the Court would 23 prefer to have them addressed in some other way, we will of 24 course do that. 25 THE COURT: Actually, you did give me a letter that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6236 49nesat4 1 included your comments on the Stewart search materials because 2 you went through the newspaper articles and then the Stewart 3 search materials that you had objections to. 4 MR. TIGAR: I did that, your Honor, and that was on 5 the 12th of September. That was before we had conducted our 6 Rule 106 review. That letter, as I recall it, your Honor, 7 addressed the stand-alone newspaper articles and the Stewart 8 search newspaper articles. 9 THE COURT: Well, no, it also addressed all of the 10 Stewart -- all of the materials from the search of 11 Ms. Stewart's office that you were objecting to. And there was 12 a subsequent letter from Ms. Shellow-Levine adding a couple of 13 other exhibits and a couple of other arguments with respect to 14 the one exhibit. 15 MR. TIGAR: Yes, your Honor, that is true. No, I 16 wasn't saying differently. 17 With respect to the newspaper articles and with 18 respect to this immigration proceeding issue, which really goes 19 to knowledge, intent, state of mind, the later submission -- 20 first your Honor's opinion from the bench yesterday about 21 knowledge, intent, state of mind and the relationship of things 22 to that obviously influenced our thinking. We then came 23 forward with Rule 106. The playing field looks a little bit 24 different than it did on September 12th. That was all I was 25 saying. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6237 49nesat4 1 THE COURT: Why don't the parties talk about -- 2 Mr. Dember says he just got the exhibits. Why don't you talk 3 and give me letters and I won't decide it until I've heard you, 4 but there was this possibility out there that you might reach 5 some agreement, and if you don't, I should have the parties' 6 positions on those exhibits. I'm not asking for long letters, 7 but just so I know what your positions are before I listen to 8 you. I won't decide it without giving you the opportunity to 9 talk to me. 10 So we may end up doing that on Tuesday also after 11 you've had the opportunity to consider what the exhibits are 12 and let me know what your positions are. OK. 13 MR. BARKOW: Your Honor, if I may just ask of the 14 Court, Mr. Tigar said that they may or may not, if they file 15 something on the Taha book. And Friday is a holiday. I would 16 just ask if it's at all possible, the close of business, we 17 define that as something like 4:00 or something like that, 18 given that Friday is a holiday. 19 MR. TIGAR: Yes, your Honor -- 20 MR. BARKOW: I know Mr. Tigar's observing as well, and 21 just so I can make sure I see it, if it occurs, if they're 22 going to file one, so I can see it before then. 23 MR. TIGAR: I understand what's been said and of 24 course I will comply with that request. 25 THE COURT: OK. Anything else for me? I'll see you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6238 49nesat4 1 all -- how long will the prison visit take? 2 MR. BARKOW: Your Honor, we read 82 pages today. The 3 total pages are 344, so that leaves 260-some-odd pages. I 4 don't know if it's possible actually to finish 260 pages in one 5 day, but it might be, depending on when we start and breaks and 6 that sort of thing. I think it will fill most of the day on 7 Tuesday, probably all of the day, potentially part of the day 8 on Wednesday, given how much we have left. 9 And then we have the six-or-so-minute part that we 10 agreed upon to play, but that obviously is only six minutes. 11 THE COURT: You also have Agent Kerns and various 12 documents. 13 MR. BARKOW: Yes, we do. At this point we think we 14 will fill the whole week, given that we're off on Monday and we 15 have a half day. We had thought it was possible that we were 16 going to finish but we didn't cover as much as we thought we 17 would this week. And then we have a day-and-a-half off next 18 week, so we probably will not finish our case next week. 19 THE COURT: Look, I haven't ruled on the Taha book, 20 the Stewart -- search materials from Ms. Stewart's office, 21 search materials for Mr. Yousry, which are, if you -- if a 22 reasonable number of those were admitted and read to the jury, 23 they would take a substantial period of time, wouldn't they? 24 MR. BARKOW: I think that's right, your Honor. And if 25 we had made it as far as we predicted at the beginning of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6239 49nesat4 1 week and we did not take a day-and-a-half off next week, we 2 thought it was possible that we might finish next week. 3 If the Court -- even if the Court admitted all of that 4 evidence, it's possible -- it's hard to predict because 5 presenting written material like that, it's hard to predict 6 exactly how long it will take. But we thought it was possible, 7 I don't think it's possible anymore, that we will finish our 8 case next week. 9 THE COURT: Yeah, but the reason I raise it also is 10 not only a question of timing as to when it will be finished, 11 but timing in the sense of when I have to make sure that I 12 decide these issues, not to hold anyone -- 13 MR. MORVILLO: Your Honor, with respect to the Yousry 14 search, I have provided counsel with copies. The Court has 15 copies as well. This morning I provided counsel with a chart. 16 I also believe the Court may have gotten that chart, listing 17 which defendants, which exhibits are being offered in evidence. 18 The government's current intention is to call the 19 search agent next Thursday in the morning. I don't know how 20 long she'll be on the stand, probably for an hour or so, and 21 it's possible that the government may seek to publish Thursday 22 afternoon some of the exhibits, those as to which they require 23 no objections. 24 And so I'm hoping that over the course of the next 25 couple of days with defense counsel I can get an assessment of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6240 49nesat4 1 which documents there will be an objection to, which documents 2 there will be no objection to, so when we come back on Tuesday, 3 perhaps we can give you a better assessment of the universal 4 materials that can come in. 5 THE COURT: You have to work out a reasonable schedule 6 to give me if there are objections to the exhibits, then I'll 7 get them in response with enough time for me to decide them. 8 OK. Anything else? 9 See you all on Tuesday morning at 9:15. 10 (Adjourned to Tuesday, September 28, 2004, at 11 9:15 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6241 1 INDEX OF EXAMINATION 2 Examination of: Page 3 NEVINE AZIZ 4 Direct By Mr. Morvillo . . . . . . . . . . . 6147 5 Cross By Mr. Paul . . . . . . . . . . . . . 6149 6 DAVID LYNDON EDWARDY 7 Direct By Mr. Dember . . . . . . . . . . . . 6150 8 Cross By Mr. Tigar . . . . . . . . . . . . . 6167 9 Redirect By Mr. Dember . . . . . . . . . . . 6213 10 Recross By Mr. Tigar . . . . . . . . . . . . 6215 11 GOVERNMENT EXHIBITS 12 Exhibit No. Received 13 1716X, 1717X, 1720X, 1721X, and 1722X . . 6225 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300