6261 49TMSAT1 1 UNITED STATES DISTRICT COURT 1 SOUTHERN DISTRICT OF NEW YORK 2 -------------------------------------x 2 UNITED STATES OF AMERICA, 3 3 v. S1 02 Cr. 395 (JGK) 4 4 AHMED ABDEL SATTAR, a/k/a "Abu Omar," 5 a/k/a "Dr. Ahmed," LYNNE STEWART, 5 and MOHAMMED YOUSRY, 6 6 Defendants. 7 -------------------------------------x 7 8 September 29, 2004 8 9:10 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID STERN 23 DAVID A. RUHNKE 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6262 49TMSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 THE COURT: Good morning, all. The Court has reviewed 4 2700TH, the highlighted portion of Government Exhibit 2700T, 5 which includes the recent edition of Taha's book as published 6 in 2001, as well as the portions of the previous version that 7 were found on Sattar's computer with save dates of January 1999 8 and November 1998. The Court has also reviewed the extensive 9 correspondence from the parties. The government seeks to admit 10 Government Exhibit 2700T solely with respect to Counts 2 and 3 11 of the superseding indictment on various theories and the 12 defendants object. 13 It is plain that Government Exhibit 2700T is 14 admissible with respect to Counts 2 and 3 of the superseding 15 indictment. The correspondence does not seriously challenge 16 the authenticity of the various versions of the exhibits as 17 versions of a book by Taha that were initially found on the 18 Sattar computer and the most recent version of which was found 19 at Al-Sirri's store in London. 20 The circumstances of where the various versions were 21 found together with the comparison of the contents and the 22 discussion on the recordings between Al-Sirri and Sattar in 23 which Al-Sirri seeks to have Sattar take a number of the copies 24 and Sattar and Taha discuss the publication are sufficient to 25 establish the versions as drafts and a final copy of the book SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6263 49TMSAT1 1 by Taha. The composite exhibit is admissible. 2 First, the earlier version of Taha's book are 3 admissible for their effect on Sattar's knowledge, intent, and 4 state of mind. The most recent version is materially the same 5 as the earlier versions with respect to the central themes, 6 particularly the alleged justification for killing Christians, 7 Jews, and others. The potential of versions of such a detailed 8 justification for crimes charged in this case is highly 9 relevant to Sattar's knowledge, intent, state of mind and 10 motive. 11 Second, all of the versions of the book are relevant 12 to Taha's knowledge, intent, motive, and state of mind. That 13 is relevant for the Count 2 conspiracy because Taha is an 14 alleged coconspirator. While the parties have spent 15 considerable effort in arguing on whether the various versions 16 were nonhearsay coconspirator statements by Taha, admissible 17 under 801(d)(2)(E), or adopted as admissions by Sattar and 18 admissible against him, it is plain that the statements in the 19 book are statements of Taha's then existing state of mind, 20 including his intent, plan, and motive, which would be an 21 exception to the hearsay exclusion. 22 Pursuant to Federal Rule of Evidence 803(3), this 23 execution would not include "a statement of memory or belief to 24 prove the fact remembered or believed." But it is difficult to 25 see what statements in the book are offered or could be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6264 49TMSAT1 1 relevant for the truth of historical facts. There are 2 references to historical facts such as the rebellion of al 3 Hussein, but all of that is context to the current state of 4 mind of Taha as to why killings are currently justified. None 5 of the parties in their correspondence point to any historical 6 facts that may be relevant to this case and for which the book 7 could be taken as assertions of such facts. 8 The only portions of the book that the government 9 identifies as having "truth content" are the "statements by 10 Taha as to what his view is on certain questions and issues 11 such as whether Islam justifies the killing of non-Muslims." 12 Government 9/20/04 letter at 3. 13 But it is plain that such statements go to Sattar's 14 motive, intent, and state of mind and not to his memory of 15 historical facts. I'm sorry. I should say, but it is plain 16 that such statements go to Taha's motive, intent, and state of 17 mind and not to his memory of historical facts to prove the 18 historical facts. 19 Finally, to the extent that there could be statements 20 in the book that could be viewed as assertions of historical 21 fact, the government has offered a more than sufficient basis 22 for the admission of the book as coconspirator statements by 23 Taha admissible against Sattar during and in furtherance of the 24 Count 2 conspiracy. The statements provide justification, 25 support and encouragement to accomplish the conspiracy which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6265 49TMSAT1 1 alleged in Count 2. 2 There is nothing in the 403 balancing analysis which 3 indicates that the book should be excluded. The book is 4 plainly highly relevant to the motive, intent, knowledge, and 5 state of mind of both Sattar and Taha as coconspirators in a 6 Count 2 conspiracy. There is, in fact, no reasonable argument 7 of unfair prejudice. Any impact the book has comes from its 8 permissible evidentiary value of its attempt to justify killing 9 and not from any impermissible effort to appeal to 10 impermissible consideration such as passion or sympathy. 11 While the defendants have suggested a completeness 12 issue with respect to the excerpts that the government seeks to 13 read, the objection is not well taken. The entire transcript 14 of Government Exhibit 2700T will be in evidence and the 15 defendants will be permitted to read any of the additional 16 passages while the translator is on the stand to ensure that no 17 passages are taken out of context. 18 Therefore, the objections are overruled. The exhibit 19 will be admitted. 20 I would, of course, listen to any proposed limiting 21 instructions. The instruction based upon the arguments of the 22 parties that the Court intends to give is as follows: 23 "This exhibit is admitted solely with respect to 24 Counts 2 and 3 of the indictment. It cannot be considered for 25 the truth of any of the matters asserted against Ms. Stewart or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6266 49TMSAT1 1 Mr. Yousry and it is admitted subject to connection against 2 Mr. Sattar for the truth of any of the matters asserted in the 3 book." 4 MR. TIGAR: Your Honor, with respect to the proposed 5 instruction, we would suggest that the instruction be that it 6 cannot be considered against Mr. Yousry or Ms. Stewart, not for 7 the truth of any matters asserted. There is no evidence 8 whatever that they ever saw it, discussed it, read it. It is 9 in a language they don't speak. It has really -- I'm sorry. 10 My client has reminded me that Mr. Yousry speaks the language, 11 but certainly there is no evidence that he ever saw it or 12 discussed it. 13 THE COURT: Government? 14 MR. BARKOW: Your Honor, this is the same issue that 15 has arisen previously with respect to this particular 16 instruction. We think the instruction is appropriate and we 17 believe that the instruction that the Court gave is 18 appropriate. 19 THE COURT: I agree. Evidence with respect to Counts 20 2 and 3 is not irrelevant to Ms. Stewart and Mr. Yousry because 21 the existence of the Count 2 conspiracy is relevant to 22 Ms. Stewart and Mr. Yousry as an element of Counts 4 and 5 of 23 the indictment in which they are defendants. And that is an 24 issue that I've discussed at length. 25 MR. TIGAR: Your Honor, the reason that this does SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6267 49TMSAT1 1 differ from the rulings that your Honor has already made with 2 which I'm not at this point quarreling is that you have held 3 that much, if not all, of the proffered material would be 4 admissible under 803(3) as to Taha's state of mind. And you've 5 also held that much of the material is simply nonhearsay 6 because it doesn't relate to a backward looking assessment of 7 historical facts. 8 That sets this book apart from the other evidence 9 about which we have had a discussion on limiting instructions, 10 I respectfully submit. And even though in a separate trial of 11 Ms. Stewart under Count 4 and Count 5 something about the 12 existence of the Count 2 conspiracy would be important, two 13 factors arise. First, she is only liable under Count 4 to the 14 extent she knew or intended. And because she is only liable to 15 the extent she knew or intended, the government would not, I 16 suggest, would be permitted the same leeway in proving Count 2 17 as it would if a Count 2 defendant were present; that is to 18 say, to begin the 403 analysis would be different and the 19 balancing would have to be redone with respect to that. 20 And, second, and this may repeat some arguments that I 21 have made before, because of the know or intent limitation it 22 cannot -- it is not sufficient to say that, well, you know, 23 Count 2 is there and it has to be proven because of Count 4. 24 Although that is something we have discussed before, I submit 25 it is different this time because this book is not a telephone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6268 49TMSAT1 1 conversation or something that was found. It is just of a 2 completely different character. 3 THE COURT: That understates the significance of the 4 book to the existence of the Count 2 conspiracy. And the items 5 that you have noted on why the statements in the book are 6 independently admissible, putting aside the arguments by the 7 parties with respect to the coconspirator exception, the 8 elements going to the state of mind and the 803(3) exception as 9 they apply to Mr. Sattar and Taha shows the admissibility of 10 the exhibit and underlines its admissibility rather than its 11 exclusion. 12 MR. RUHNKE: I want to make my objection on the record 13 to the same point. 14 THE COURT: Sure. 15 MR. RUHNKE: I know we have had this argument before. 16 I maintain that it is not admissible in any circumstances 17 against Mr. Yousry, this particular exhibit. And even -- and 18 the way we have framed it in the past is we have talked about 19 suppose Mr. Sattar had been severed from the trial, would the 20 evidence be admissible at the trial? Your Honor has ruled that 21 it would be admissible at the trial since establishing a Count 22 2 conspiracy is an element of establishing Count 4 and 5 23 assuming knowledge and intent on the part of Mr. Yousry and 24 Ms. Stewart. 25 However, at a severed trial, I think the instruction SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6269 49TMSAT1 1 that would have to be given to the jury is not that this 2 evidence may be on some day considered admissible against 3 Ms. Stewart and Mr. Yousry, but that it would become an 4 instruction issue at the end where the jury would be told that 5 a limiting instruction would be during the trial that you are 6 listening to this evidence to determine whether -- whether the 7 government can prove beyond a reasonable doubt that there 8 existed a conspiracy to kill or kidnap in far countries in 9 conspiracies charging Counts 2 and 3. You may not consider 10 that evidence for any purpose at the present time against 11 Ms. Stewart and Mr. Yousry. 12 And then at the end of the case the jury will be told, 13 you must, in evaluating Counts 4 and 5 charges, first determine 14 whether there existed the conspiracies charged in Counts 2 and 15 3 -- Count 2. And if you find beyond a reasonable doubt 16 unanimously that that conspiracy existed, then you must 17 determine what Ms. Stewart's and Mr. Yousry's state of mind 18 was, i.e., knowledge and intent -- knowledge and/or intent to 19 provide material aid to this ongoing conspiracy. And even 20 under that theory the evidence itself would never be admissible 21 against Ms. Stewart or Mr. Yousry. It still wouldn't be 22 admissible against them. That's been my objection right 23 through. 24 THE COURT: How can that be if the evidence relates to 25 the existence of the Count 2 conspiracy and the jury has to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6270 49TMSAT1 1 consider that evidence with respect to the existence of the 2 Count 2 conspiracy? If it is a separate trial of Ms. Stewart 3 and Mr. Yousry, against whom are they considering that evidence 4 as to the existence of the Count 2 conspiracy? If it is not 5 relevant to Ms. Stewart and Mr. Yousry, it would not be 6 admitted in the case. But it is admitted in the case precisely 7 because the existence of the Count 2 conspiracy is an element 8 of Counts 4 and 5. 9 MR. RUHNKE: My response would be it becomes an 10 independent fact that the evidence itself never becomes 11 admissible. In other words, what is said in the Taha book 12 should never be considered as evidence against Lynne Stewart or 13 Mohammed Yousry. Whether there is and has been established a 14 conspiracy charged in Count 2, once that has been established, 15 independently, without it being used to spill over on any of 16 the other counts as to Stewart or Yousry, then the jury can 17 decide whether Mr. Yousry and Ms. Stewart knew about the 18 conspiracy; and if they did know about it, whether they 19 intended to provide material aid. 20 THE COURT: You say spill over to the other counts. 21 The first element, without discussing the precise 22 instruction -- but the first element of Counts 4 and 5 would be 23 the existence of the Count 2 conspiracy. 24 MR. RUHNKE: Correct. 25 THE COURT: So it is not a question of spill over. It SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6271 49TMSAT1 1 is a question of the relevance of this information directly to 2 an element of the charges against Mr. Yousry and Ms. Stewart. 3 And as to that it is highly relevant. 4 MR. RUHNKE: I understand the Court's position and I 5 failed to persuade you in the distinction in the past on the 6 issue. But I still do not believe that this evidence could 7 ever be considered -- the Taha book, for example, could ever be 8 considered as evidence against Ms. Stewart and Mr. Yousry 9 unless -- I don't mean unless -- but simply facts that go to 10 whether a conspiracy such as described in Count 2 has been 11 established. Once that's been established beyond a reasonable 12 doubt, it is not that they say that Ms. Stewart and Mr. Yousry 13 are now in agreement with what is said in the Taha book or you 14 can consider what is said in the Taha book against them. It is 15 whether as a free-standing fact element that conspiracy has 16 been established. And we have a conceptual difference in this, 17 but I wanted to make my objection clear again, or as clear as I 18 could make it. 19 MR. TIGAR: Your Honor, in the alternative, we would 20 ask your Honor to strike from the instruction the language not 21 offered against Ms. Stewart or Mr. Yousry for the truth of any 22 matters asserted. That is, it is what it is. This picks up on 23 Mr. Ruhnke's point, that is, that the truth instruction has a 24 negative prelude. What is it admissible for? That's the 25 unanswered question. Saying it is only admissible to Count 2 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6272 49TMSAT1 1 satisfies that concern without leaving the jurors speculating 2 as to what else might be meant by the not admissible for claim. 3 THE COURT: I'll listen to the government, but if it 4 is the position of Ms. Stewart and Mr. Yousry that they really 5 don't want the middle part of the instruction which says, it 6 cannot be considered for the truth of any of the matters 7 asserted against Ms. Stewart or Mr. Yousry -- 8 MR. TIGAR: Your Honor, Mr. Ruhnke has asked -- can we 9 just confer for a moment before I -- 10 THE COURT: Sure. You have it on your screens; I 11 don't. But the instruction -- let me just spell it out. The 12 instruction had said: This exhibit is admitted solely with 13 respect to Counts 2 and 3 of the indictment. It cannot be 14 considered for the truth of any of the matters asserted against 15 Ms. Stewart or Mr. Yousry and it is admitted subject to 16 connection against Mr. Sattar for the truth of any of the 17 matters asserted in the book. 18 What I was just going to say is, if Ms. Stewart and 19 Mr. Yousry did not want the portion of the instruction that 20 said it cannot be considered for the truth of any of the 21 matters asserted against Ms. Stewart or Mr. Yousry, I'll listen 22 to the government, but I would be inclined to take that out. 23 MR. TIGAR: Your Honor, without waiving our earlier 24 position, we would like the instruction as it is, after 25 consultation with cocounsel. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6273 49TMSAT1 1 THE COURT: Mr. Fletcher, is the jury ready? 2 THE DEPUTY CLERK: Should I bring them in? 3 THE COURT: Yes. We were in the middle -- 4 MS. BAKER: Yes, your Honor. We are in the middle of 5 Government Exhibit 1722X. 6 Your Honor, may Mr. Rambaud come forward to the 7 witness stand? 8 THE COURT: Yes. 9 MS. BAKER: Your Honor, we will be resuming on page 31 10 with line 16. That's in the printed version that the parties 11 and the Court have in their binders. It is page 30, line 22 of 12 the PDF version on the screen. 13 (Jury present) 14 THE COURT: Good morning, ladies and gentlemen. It is 15 good to see you all. 16 Ms. Baker. 17 MS. BAKER: Thank you, your Honor. 18 At this time the government asks to continue 19 presenting the July 14, 2001 prison visit by displaying and 20 reading to the jury Government Exhibit 1722X in evidence, and 21 that is videotape 3 of July 14, 2001. We will be resuming with 22 page 30, line 22 on the screen. 23 Once again, Mr. Rambaud will read the lines attributed 24 to Mohammed Yousry, Ms. Griffith will read the lines attributed 25 to Lynne Stewart, I will read the lines attributed to Omar SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6274 49TMSAT1 1 Abdel Rahman and also unidentified female and unidentified 2 male. 3 THE COURT: All right. 4 (At this point, Government Exhibit 1722X in evidence, 5 displayed and read to the jury) 6 THE COURT: Can you stop for a moment. We are getting 7 some feedback or noise from the street. It appears to be noise 8 from the street. Why don't we just take a short break while I 9 find out what it is, see if it is going to stop, and we can go 10 back several lines to assure that the jurors have not been 11 distracted. 12 Ladies and gentlemen, we will take a brief break. 13 Please remember my continuing instructions not to talk about 14 the case at all and to keep an open mind. 15 All rise, please, and please follow Mr. Fletcher to 16 the jury room. 17 (Jury not present) 18 MR. DEMBER: Your Honor, I heard the same noise this 19 morning from my office and it appears to be coming from the 20 construction being done on the plaza in front of the new 21 courthouse, 500 Pearl Street courthouse which runs along Pearl 22 Street there. That's what it seems to be. 23 MS. BAKER: Actually, I saw on St. Andrew's Plaza, 24 which is closer to the front of this building, some sort of 25 large very vehicular machine this morning, and that's where I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6275 49TMSAT1 1 thought the noise was coming from. 2 THE COURT: Let me just ask the marshals -- 3 THE MARSHAL: Your Honor, one of the marshals went 4 outside of the courtroom. 5 THE COURT: I'll take a break. 6 And the various parties and jurors were pointing. 7 Thank you. 8 (Recess) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6276 49TJSAT2 1 (In open court; jury not present) 2 THE COURT: Please be seated. I understand from 3 Mr. Fletcher, from the marshals, that there is pumping for 4 water, and it is expected to last about, I'm told, about 15 5 minutes. I'm prepared to continue unless it is so bothersome 6 to the parties that they will want to break, now that I know 7 what it is. 8 MS. BAKER: Your Honor, the government is prepared to 9 continue. The only thing I might suggest is if your Honor 10 would ask the jurors that if any of them are having difficulty 11 hearing -- 12 THE COURT: I would do that, I would do that. 13 MS. BAKER: -- to raise their hands. 14 MR. RUHNKE: It also just stopped. 15 THE COURT: Right, but it could start again. I'll 16 tell them that it could start again and that we understand it 17 is water pumping and if at any time it interferes with them or 18 it bothers them, that they want to break, just raise their 19 hand. Okay, let's bring in the jury. 20 MS. BAKER: When we resume, we might start again at 21 the same spot because that is really at the beginning of one 22 subject being discussed. 23 THE COURT: Okay. Where is that? 24 MS. BAKER: On screen, it is Page 30 line 22. In the 25 version in the binders, it is Page 31 line 16. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6277 49TJSAT2 1 THE COURT: Okay. 2 (Jury present) 3 THE COURT: All right. Please be seated, all. 4 Ladies and gentlemen, I understand that the sound was 5 water pumping, and it has stopped now, but it was expected to 6 continue for some time, so if it should start again, we'll try 7 and keep the sound up for you. 8 If at any time the noise starts and it interferes with 9 your ability to follow or it so bothers you that any of you 10 want a break, by all means, just raise your hand, okay? 11 Thank you. All right. 12 MS. BAKER: Your Honor, we will begin again at the 13 same point, which on screen is Page 30 line 22. 14 (At this point, Government Exhibit 1722 X, in 15 evidence, was displayed and read to the jury) 16 THE COURT: All right. 17 MR. BARKOW: Your Honor, at this point I'd like to 18 read and publish to the jury a stipulation between the parties 19 and offer that. Mr. Rambaud can step down. 20 THE COURT: All right. You may step down. 21 (Mr. Rambaud left the witness stand) 22 MR. BARKOW: Your Honor, at this point, I offer into 23 evidence a signed stipulation between the parties, Government 24 Exhibit 1763, and ask to publish it, if I can publish it on the 25 Elmo? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6278 49TJSAT2 1 THE COURT: Yes. What is the number again, please? 2 MR. BARKOW: 1763, your Honor. 3 THE COURT: Government Exhibit 1763 received in 4 evidence. 5 (Government's Exhibit 1763 received in evidence) 6 (Government Exhibit 1763 was displayed and read to the 7 jury) 8 MR. BARKOW: At this point, your Honor, I offer into 9 evidence Government Exhibit 1716 TX, on the basis of that 10 stipulation. 11 THE COURT: All right. Government Exhibit 1716 TX 12 received in evidence. 13 (Government's Exhibit 1716 TX received in evidence) 14 MR. BARKOW: If I may at this point read an oral 15 stipulation between the parties? 16 THE COURT: All right. 17 MR. BARKOW: The parties hereby stipulate and agree 18 that the excerpt of the DVDs of the July 2001 prison visit that 19 is about to be played to you is excerpted from the admitted 20 portion of the beginning of the visit that occurred on July 21 13th, 2001. The playing at this time of this excerpt to the 22 jury resulted from negotiations between the parties. 23 Your Honor, with that, at this point, we request 24 permission to play Government Exhibit 1716 TX, with the 25 accompanying transcript 1716 TXT, and ask if the jurors could SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6279 49TJSAT2 1 put their headphones on. 2 THE COURT: All right. Ladies and gentlemen, put your 3 headphones on, turn them on, the dot facing forward. 4 MR. BARKOW: Your Honor, the video will be on the big 5 screen and the transcript will be in front of the jurors. 6 May we proceed? 7 THE COURT: Yes. 8 (At this point, Government Exhibit 1716 TX, in 9 evidence, was displayed and played for the jury) 10 MR. MORVILLO: Your Honor, that is the end of the 11 excerpted portion of Government Exhibit 1716. The jurors can 12 remove their headsets. 13 THE COURT: Okay. Ladies and gentlemen, take off your 14 headsets. 15 MR. MORVILLO: Your Honor, at this time, the 16 government would request permission to read and publish to the 17 jury Government Exhibit 2200 S, which is a stipulation, and I 18 also offer that stipulation into evidence at this time as 2200 19 S, as in SAM. 20 THE COURT: Government Exhibit 2200 S received in 21 evidence. 22 (Government's Exhibit 2200 S received in evidence) 23 MR. MORVILLO: May I display it on the Elmo, your 24 Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6280 49TJSAT2 1 (At this point, Government Exhibit 2200 S, in 2 evidence, was displayed and read to the jury) 3 MR. MORVILLO: Your Honor, at this time the government 4 would call Peter Grasso. 5 THE COURT: All right. 6 . 7 PETER F. GRASSO, 8 called as a witness by the Government, 9 having been duly sworn, testified as follows: 10 DIRECT EXAMINATION 11 BY MR. MORVILLO: 12 Q. Good morning, Mr. Grasso. 13 How are you employed? 14 A. Excuse me? 15 Q. How are you employed? 16 A. I am employed as a special agent with the Federal Bureau of 17 Investigation. 18 Q. Agent Grasso, if you could move your chair a little bit 19 forward and speak into the microphone, that would help. Thank 20 you. 21 How long have you been employed as a special agent 22 with the Federal Bureau of Investigation? 23 A. 7 and a half years. 24 Q. What is your current assignment within the FBI? 25 A. I am the assistant supervisory special agent in charge of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6281 49TJSAT2 Grasso - direct 1 the Computer Analysis and Response Team. 2 Q. Is the Computer Analysis and Response Team also sometimes 3 referred to as the CART team? 4 A. Yes, it is. 5 Q. What does the CART team do? 6 A. We assist in the gathering of computer evidence, digital 7 evidence, and the examination of that evidence. 8 Q. What do you mean by computer evidence? What types of 9 computer evidence? 10 A. Computers, your hard drives, media being diskettes, CDs, 11 DVDs, personal digital assistant, the small address books, 12 items like that. 13 Q. You stated that you are the acting supervisory special 14 agent for the CART team? 15 A. Yes, correct. 16 Q. Is that the New York Field Office? 17 A. Yes. 18 Q. How long how long have you been with CART? 19 A. Two and a half years. 20 Q. Did you receive any specialize training to become a CART 21 agent? 22 A. Yes. 23 Q. Could you briefly describe what type of training you 24 receive. 25 A. There are some of the industry standard courses that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6282 49TJSAT2 Grasso - direct 1 take. It is probably about 6 or 8 courses that we are required 2 to take before we become certified. Some are the industry 3 standards, some are by the actual tools that we use, the 4 companies that produce those tools, and some are in-house 5 design courses. 6 Q. Prior to your assignment to the CART team two and a half 7 years ago, what did you do for the FBI? 8 A. I was a special agent on a squad that specialized in 9 computer crimes. 10 Q. How long were you on that squad? 11 A. Approximately four years. 12 Q. Prior to your joining the FBI, did you have a background in 13 computers? 14 A. Yes, I did. 15 Q. Would you briefly describe to the jury what your background 16 in computers was. 17 A. I have my undergraduate, my bachelors degree in 18 electromechanical and computer technologies. I worked for 19 approximately two years for IBM, where I was a computer service 20 representative. Basically, I repaired computers. 21 When I left IBM, I started my own business. I had a 22 computer consulting business for about 7 years, where we 23 installed networks. 24 Following that business, I worked for the New York 25 City Police Department in their IT department for approximately SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6283 49TJSAT2 Grasso - direct 1 four years. Then I was employed as a special agent with the 2 Bureau. 3 Q. What is an IT department? 4 A. Information technology, computers. 5 Q. Directing your attention, Agent Grasso, to the summer of 6 2004, this past summer, were you assigned to CART at that time? 7 A. Yes, I was. 8 Q. Did there come a time this past summer when you worked with 9 some digital evidence in connection with this case? 10 A. Yes. 11 Q. Can you generally describe what you did. 12 A. I printed documents from diskettes that are identified by 13 the case agent as being pertinent to this case. 14 Q. When you say "diskettes," what kind of diskettes were they? 15 A. Three and a half inch computer diskettes. 16 Q. Where did you get the diskettes from? 17 A. The case agent. 18 Q. Can you please explain to the jury the process that you 19 used to print the documents off of the diskettes that you 20 received from the case agent. 21 A. We take each diskette, we examine it to make sure it is 22 write protected so we can't write data to it. 23 Q. Excuse me. What does "write protected" mean? 24 A. There is a physical switch on three and a half inch 25 diskettes that you move in one or two positions so they can SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6284 49TJSAT2 Grasso - direct 1 either allow information to be written to a diskette, or write 2 protection, it doesn't allow the computer to write information 3 at all to that diskette. 4 Q. You observed these diskettes to be in a write-protected 5 state? 6 A. Correct, they were all write-protected. 7 Q. What did you do with the diskettes? 8 A. We insert it in the examination computers and brought up 9 each diskette inside of a program called Windows Explorer. It 10 is a utility that comes with Windows, the operating system, and 11 it looks at the directory structure of the diskette and file 12 names associated with those diskettes. 13 Q. Once you brought up Windows Explorer and looked at the 14 directory structure of the diskette, what did you do? 15 A. I did a printout of that screen so I could see what the 16 name of the file was. I highlighted each file. I printed out 17 a screen shot of that, and then I opened up that file inside 18 its native application, whichever application most closely that 19 I could tell created that document. 20 Q. Once you opened the document in its native application, 21 what did you do? 22 A. I printed it. 23 Q. After you printed the documents, did you do anything with 24 the documents? 25 A. Labeled each document, both the screen shot and the printed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6285 49TJSAT2 Grasso - direct 1 documents. 2 Q. Why did you label them? 3 A. So I could identify them, I could identify which Explorer 4 screen shot goes with which document. 5 Q. Did you do anything about the process that you explored 6 this past summer to print out those documents, to your 7 knowledge, alter in any way the contents of the electronic 8 files that you printed? 9 A. No. 10 MR. MORVILLO: May I approach, your Honor? 11 THE COURT: Yes. 12 (Pause) 13 BY MR. MORVILLO: 14 Q. Agent Grasso, I've placed before you what has been marked 15 for identification as Government Exhibits 22O1, 2201 A, 2201 B, 16 2201 AL, and 2201 BL. 17 Directing your attention to Government Exhibit 2201, 18 what is that? 19 A. It is a three and a half inch computer diskette. It is a 20 diskette that I've labeled with this case number and the Q 21 number of this piece of evidence. 22 Q. Q number? What is a Q number? 23 A. It is a laboratory expression for questioned item or 24 questionable item. It means it is something we have to 25 examine. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6286 49TJSAT2 Grasso - direct 1 Q. Have you seen this diskette before? 2 A. Yes, I have. 3 Q. Directing your attention now to Government Exhibit 22O1 A, 4 do you see that? 5 A. Yes, I do. 6 Q. Do you recognize that document? 7 A. Yes, I do. 8 Q. How do you recognize it? 9 A. It is labeled with two labels that, as I printed these 10 documents, I labeled them, and on it is two labels, one with 11 the derivative evidence number I gave a whole series of 12 documents but, more importantly, on the bottom is another label 13 with my initials on it, as the case number, Q number, and the 14 date it was printed and the document name that I assigned it. 15 Q. When you say "derivative evidence number," what does 16 derivative evidence mean? 17 A. It is simply evidence that is in another form from what we 18 have in original evidence. Any document I take off the 19 original evidence then becomes derivative evidence. 20 Q. From where did you obtain Government Exhibit 22O1 A? 21 A. QNY 114, which is Government Exhibit 22O1. 22 Q. So, in other words, that is a document you printed off of 23 that computer disk? 24 A. Correct. 25 Q. Directing your attention now to Government Exhibit 22O1 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6287 49TJSAT2 Grasso - direct 1 AL -- 2 A. Yes, sir. 3 Q. -- do you recognize that document? 4 A. Yes, I do. 5 Q. How do you recognize it? 6 A. It is also labeled with a case number, the Q number, my 7 initials, the date and the document name. That document name 8 matches the document name on 2201 A. 9 Q. What is that document, 2201 AL? 10 A. It is a Windows Explorer screen shot. It is a printout of 11 the Windows Explorer program. 12 MR. MORVILLO: Your Honor, at this time, the 13 government would offer into evidence Government Exhibit 22O1, 14 2201 A, and 2201 AL. 15 THE COURT: All right. Government Exhibits 22O1, 2201 16 A and 2201 AL received in evidence. 17 (Government's Exhibits 2201, 2201 A and 2201 AL 18 received in evidence) 19 MR. MORVILLO: May I approach, your Honor, and 20 retrieve them? 21 THE COURT: Yes. 22 (Pause) 23 MR. MORVILLO: Your Honor, may I publish Government 24 Exhibit 22O1, the computer diskette, to the jury on the Elmo? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6288 49TJSAT2 Grasso - direct 1 BY MR. MORVILLO: 2 Q. Agent Grasso, Government Exhibit 22O1 that is on the screen 3 in front of you, that is the diskette from which you printed 4 Government Exhibit 22O1 A? 5 A. Yes. 6 Q. I've just flipped it over to the backside of this diskette 7 and published that to the jury. Do you see the sticker with 8 the bar code on it? 9 A. Yes. 10 Q. What is that information? 11 A. The number on the top of the bar code is the case file 12 number. The information on the bottom, the N Y O, is New York 13 office, Q number being 114. We sometimes use the letters Q or 14 QNY, and it is the same thing. 15 Q. Who put that sticker on this exhibit? 16 A. I did. 17 MR. MORVILLO: Your Honor, may I publish Government 18 Exhibit 22O1 A to the jury for a moment? 19 THE COURT: Yes. 20 BY MR. MORVILLO: 21 Q. Agent Grasso, directing your attention to the 22 bottom-right-hand corner of Government Exhibit 22O1 A, do you 23 see those two stickers there? 24 A. Yes. 25 Q. Would you please explain to the jury what those stickers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6289 49TJSAT2 Grasso - direct 1 are. 2 A. The top sticker is a DENY number, derivitive evidence 3 number I assigned a series of documents I printed, in this 4 case, the NY8. 5 The bottom sticker, the first number on the top left 6 is the case number. Directly below it is the date I printed 7 this document. On the top-right side is the Q number, QNY 8 number, and below that is the sequential document letter that I 9 assigned this particular document, and then on the bottom left 10 side my initials. 11 Q. Those are your initials? 12 A. My initials. 13 Q. On what date did you print this document? 14 A. June 2nd, 2004. 15 Q. The Q number is QNY 114? 16 A. Correct. 17 MR. MORVILLO: Your Honor, may I publish Government 18 Exhibit 22O1 AL to the jury? 19 THE COURT: Yes. 20 BY MR. MORVILLO: 21 Q. Agent Grasso, turning the document lengthwise, in the 22 bottom-right-hand corner do you see a sticker? 23 A. Yes. 24 Q. What is that sticker on this document? 25 A. It is my identification sticker with the case number, the Q SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6290 49TJSAT2 Grasso - direct 1 number, the document letter matching the first document, and my 2 initials. 3 Q. Do the stickers on this document correspond to the sticker 4 on Government Exhibit 22O1 A? 5 A. Yes. 6 Q. And so could you please tell the jury what this exhibit is, 7 what this document is. 8 A. It is a directory structure of a diskette. In this case, 9 it is the sub-directory that the document Arab.1.text.4.gif was 10 located. 11 Q. Starting with the upper-left-hand corner of the document, 12 there appears to be an image of an open file folder with an 13 extension. What does that information tell you? 14 A. That tells me that this Explorer, right now, at that time 15 was looking at the A drive, the three and a half diskette drive 16 in my examination computer. It is looking at the sub-directory 17 on that diskette called untitled document -- underscore -- 18 files. It is looking at the files located in that 19 sub-directory. 20 Q. Now, directing your attention to the column that is called 21 "name," do you see that? 22 A. Yes. 23 Q. What information is contained under that column? 24 A. The file name of any files that are located in that 25 directory. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6291 49TJSAT2 Grasso - direct 1 Q. How many document are contained in this directory? 2 A. Only one. 3 Q. Can you read off the name of that file? 4 A. Arab.1.text.4.gif. 5 Q. What does "G I F" stand for? 6 A. It is a graphic file format. It is an image file. 7 Q. The next column is denoted, "size." What information is 8 contained under that column? 9 A. The size of the file, in this case 90 kilobytes. 10 Q. What is a kilobyte? 11 A. It is a physical representation of the amount of space the 12 file is taking up on the drive. 13 Q. The next column is denoted, "type." What kind of 14 information is contained under that column? 15 A. The Windows operating system keeps track of different 16 applications you have in your machine, in your computer, and it 17 assigns programs to different kinds of files. 18 In this particular instance, I have the program on my 19 examination machine called CompuPic Pro, and my machine tries 20 to open up any CompuPic profiles, any G I F files with CompuPic 21 Pro. 22 So it is not representative of anything really 23 significant in the case as more how my machine is configured. 24 Q. Now the last column is called, "modified." What 25 information is contained under that column? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6292 49TJSAT2 Grasso - direct 1 A. The last time that this file on this diskette was opened, 2 modified in some way and saved. 3 Q. Can you read that information to the jury. 4 A. "7/16/1994, so July 16th, 19 -- excuse me -- 1999, at 4:15 5 pm." 6 Q. Agent Grasso, you also still have before you what has been 7 offered for identification as Government Exhibits 22O1 B and 8 2201 AL? 9 A. Yes. 10 Q. Do you recognize both of those documents, taking 2201 B 11 first? 12 A. Yes. 13 Q. What is that document? 14 A. This is another document that I printed. When I started 15 printing, first started printing these documents, I didn't 16 print two labels. I started by handwriting. 17 I realized the volume of documents, so I started 18 printing labels. I handwrote on this one the case number, the 19 Q number, the date, my initials and the document name, and 20 there is also a label showing the derivative evidence number. 21 Q. From which diskette did you print out Government Exhibit 22 22O1 B? 23 A. QNY 114. 24 Q. Is that the same diskette that you were just examined on a 25 moment ago? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6293 49TJSAT2 Grasso - direct 1 A. Yes. 2 Q. Directing your attention to Government Exhibit 22O1 BL, do 3 you recognize that document? 4 A. Yes, I do. 5 Q. What is that? 6 A. It is the Windows Explorer screen shot. I recognize it by 7 the case number and the Q number and the date, initials and 8 document name that I handwrote on the document as well. 9 Q. Does that Government Exhibit 22O1 BL correspond to 10 Government Exhibit 22O1 B? 11 A. Yes, by the document name. The same document, Document K. 12 Q. Is that document in 2201 BL the screen shot of the file 13 directory contained Government Exhibit 22O1 B? 14 A. Yes. 15 MR. MORVILLO: May I approach, your Honor? 16 THE COURT: Yes. 17 (Pause) 18 MR. MORVILLO: Your Honor, at this time, the 19 government would offer into evidence Government Exhibits 22O1 B 20 and 2201 BL. 21 THE COURT: All right. Government Exhibits 22O1 B and 22 2201 BL received in evidence. 23 (Government's Exhibits 2201 B and 2201 BL received in 24 evidence) 25 BY MR. MORVILLO: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6294 49TJSAT2 Grasso - direct 1 Q. Agent Grasso, I've just handed you what has been marked for 2 identification as Government Exhibit 22O2, 2202 A, 2202 B, 2202 3 C, and 2202 CL. 4 MR. MORVILLO: If I may approach again, your Honor. 5 Q. I am going to hand you Government Exhibits 22O2 AL and 2202 6 BL. 7 THE COURT: All right. 8 (Pause) 9 BY MR. MORVILLO: 10 Q. Directing your attention to Government Exhibit 22O2, Agent 11 Grasso, do you recognize that? 12 A. Yes, I do. 13 Q. What is it? 14 A. It is a three and a half inch diskette that is labeled NYOQ 15 111, with the case number for this case on it that I printed 16 documents from. 17 Q. What documents did you print from that diskette? 18 A. Looking at the other documents in front of me, all three of 19 these documents were printed from it. 20 Q. That would be Government Exhibit 22O2 A, 2202 B and 2202 C? 21 A. Yes. 22 Q. How do you know that? 23 A. By the markings on the diskettes -- excuse me -- on the 24 documents, the labels with my initials on all three documents. 25 Q. Is the information contained on the labels on Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6295 49TJSAT2 Grasso - direct 1 Exhibit 22O2 A, 2202 B, and 2202 C the same information that is 2 contained on the labels for Government Exhibit 2201 A and B? 3 It is the same type of information? 4 A. The same time of information. 5 Q. The Q number? 6 A. Yes. The only difference is that 2202 C is from a 7 different derivative evidence group. It is DENY 11 instead of 8 B. 9 Q. Why is that? 10 A. It was requested at a different time. 11 Q. Directing your attention now to Government Exhibits 22O2 12 AL, 2202 BL and 2202 CL, do you recognize those documents? 13 A. Yes. 14 Q. What are they? 15 A. They're also Microsoft Explorer screen shots of the 16 corresponding documents. 17 Q. So, in other words, Government Exhibit 22O2 AL is the file 18 directory screen shot of -- 19 A. 220 -- 20 Q. -- the computer disk that contained 2202 A? 21 A. Yes. 22 Q. How do you recognize those? 23 A. By the markings on the label. 24 Q. Do they contain your initials? 25 A. No, they do not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6296 49TJSAT2 Grasso - direct 1 Q. What information do you look at on those labels that 2 indicates to you that they correspond to the documents? 3 A. The document name or letter assigned to each document. 4 There came a time when there were so many documents 5 that I didn't document every page -- I didn't initial every 6 page. 7 Q. Does it have the same Q number as well? 8 A. Yes. 9 Q. And the same date? 10 A. Yes. 11 Q. And the same case number? 12 A. Correct, yes. 13 MR. MORVILLO: Your Honor, the government offers 14 Government Exhibit 22O2, 2202 A, 2202 B, 2202 C, 2202 AL, 2202 15 BL, and 2202 CL. 16 THE COURT: All right. Those exhibits are received in 17 evidence. 18 (Government's Exhibits 2202, 2202 A, 2202 B, 2202 C, 19 2202 AL, 2202 BL and 2202 CL received in evidence) 20 MR. MORVILLO: May I approach, your Honor? 21 THE COURT: Yes. 22 (Pause) 23 MR. MORVILLO: Your Honor, may I publish Government 24 Exhibit 22O2 to the jury? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6297 49TJSAT2 Grasso - direct 1 (At this point, Government Exhibit 22O2, was displayed 2 for the jury) 3 BY MR. MORVILLO: 4 Q. I have just put up Government Exhibit 22O2 which is the 5 computer disk. Would you read into the record the label that 6 is handwritten on the light sticker on that. 7 A. It looks like booty, B O O T Y, Shoheed, S H O H E E D, 8 jihad, G I H A D, 1, 2, 3. 9 Q. Do you know who put that label on that diskette? 10 A. No, I do not. 11 Q. I am now showing you the other side of Government Exhibit 12 22O2. This diskette that contains a sticker with a bar code. 13 You put that sticker on there? 14 A. Yes, I did. 15 Q. What information is on that sticker? 16 A. The case number for this investigation and the field office 17 initials and the Q number. 18 MR. MORVILLO: Your Honor, may I publish Government 19 Exhibit 22O2 CL to the jury? 20 THE COURT: Yes. 21 BY MR. MORVILLO: 22 Q. Agent Grasso, I'm showing you what is in evidence as 23 Government Exhibit 22O2 CL. You testified that this is a 24 screen shot of the sub-directory containing documents that you 25 printed out from Government Exhibit 22O2? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6298 49TJSAT2 Grasso - direct 1 A. In this case, it is actually the root directory. 2 Sub-directory is actually the main directory of the diskette. 3 Q. Did you say root directory, R O O T? 4 A. R O O T. 5 Q. What does that mean? 6 A. The main directory. There can be sub-directories 7 underneath that, sub-files underneath that, but this is the 8 main directory. 9 Q. Under the "name" column, how many documents are listed 10 there? 11 A. Five. 12 Q. In preparing documents for this matter, this case, how many 13 files from this diskette did you print out? 14 A. From this printout, I printed this one, but there is one 15 printout for each document that I printed. We just saw three 16 documents printed from this diskette. 17 Q. So a you printed a total of three documents from this 18 diskette? 19 A. Yes. 20 Q. Can you identify those three documents on Government 21 Exhibit 22O2 CL? 22 A. Well, this exhibit shows GIHAD3.DOC. I am not sure what 23 the other two documents were. I have to look. 24 Q. You know that how? 25 A. By it is highlighted. Each time I printed this out, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6299 49TJSAT2 Grasso - direct 1 highlighted the document I was about to print out. 2 Q. So this screen shot corresponds to a printout of 3 GIHAD3.DOC? 4 A. Correct. 5 Q. Can you read to the jury the modified date for GIHAD3.DOC? 6 A. November 7th, 1998, at 10:32 pm. 7 Q. The size of the file of GIHAD3.DOC? 8 A. 216 kilobytes. 9 Q. What is the type of document that is? 10 A. Again, corresponding to my computer disk, this is a 11 Microsoft Word document. 12 MR. MORVILLO: May I publish to the jury Government 13 Exhibit 22O2 AL? 14 THE COURT: Yes. 15 BY MR. MORVILLO: 16 Q. Agent Grasso, I've placed on the Elmo what is in evidence 17 as Government Exhibit 22O2 AL. What is this document? 18 A. It is a screen shot again of QNY 111. It is the Explorer 19 screen shot of the document I was about to print out. 20 Q. What is the name of the file that you printed out that 21 corresponds to the printout? 22 A. GIHAD1.DOC. 23 Q. What is the size of that file? 24 A. 242 kilobytes. 25 Q. What was the modified date on that file? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6300 49TJSAT2 Grasso - direct 1 A. 1/25/1999, at 6:22 pm. 2 Q. Incidentally, Agent Grasso, do you see GIHAD3.DOC on this 3 directory? 4 A. Yes. 5 Q. Does that contain the same information as Government 6 Exhibit 22O2 CL? 7 A. Yes. 8 Q. Is GIHAD3.DOC highlighted on Government Exhibit 22O2 AL? 9 A. On the first document? 10 Q. No. This document? 11 A. This is AL? Yes, it is. 12 MR. MORVILLO: Your Honor, may I publish Government 13 Exhibit 2202 AL? 14 THE COURT: Yes. 15 (At this point, Government Exhibit 2202 AL, in 16 evidence, was displayed for the jury) 17 BY MR. MORVILLO: 18 Q. Agent Grasso, I have put on the Elmo what is in evidence 19 Government Exhibit 22O2 AL. Do you recognize this document? 20 A. Yes. 21 Q. This is the screen shot that corresponds to Government 22 Exhibit 22O2 B? 23 A. Correct. 24 Q. Of the file directory for Government Exhibit 22O2 B? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6301 49TJSAT2 Grasso - direct 1 Q. What file, what is the file name from which you printed 2 Government Exhibit 22O2 B? 3 A. GIHAD2.DOC. 4 Q. What is the size of that document? 5 A. 216 kilobytes. 6 Q. What was the modified date of that document? 7 A. 1/25/1999, at 6:23 pm. 8 Q. Now, there is a text box in the middle of this document 9 that says, "Type: Microsoft Word document." 10 Do you see that? 11 A. Yes. 12 Q. What is that text file? What information is contained on 13 there? 14 A. There is information about a lot files saved within Word 15 documents. Besides the viewable text that you see when you 16 open up a Word document, there is additional information, 17 things like who is the author, information you would go in and 18 enter yourself, so that can give you more information about 19 that file. This represents some of that information. 20 Q. For the file that is highlighted on this document? 21 A. Yes. 22 Q. The typed Microsoft Word document, but underneath that it 23 says author, colon, and then there is text. Is that another 24 language? Do you recognize that text? 25 A. I don't recognize the text. I am not sure why it is in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6302 49TJSAT2 Grasso - direct 1 that format. It might be some -- might be the language -- 2 MR. TIGAR: Objection. 3 THE COURT: Sustained. 4 A. It might have been -- 5 THE COURT: Agent, I have sustained the objection. 6 THE WITNESS: I am sorry. 7 (Pause) 8 MR. MORVILLO: May I approach again, your Honor? 9 THE COURT: Yes. 10 (Pause) 11 THE COURT: Ladies and gentlemen, why don't we take a 12 break. We'll break for 10 minutes. Please remember my 13 continuing instructions not to talk about the case and to keep 14 an open mind. Again, if anyone needs a break, please raise 15 your hand. Please don't talk while you're in the jury room. 16 Thank you. Please remember my continuing instructions 17 not to talk about the case and keep an open mind. 18 (Jury excused) 19 THE COURT: The witness may step down. 20 (The witness left the witness stand) 21 THE COURT: I saw the one juror beginning to talk to 22 the other juror, so I called a break. 23 (Recess) 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6303 49TMSAT3 1 MR. RUHNKE: My client is not right outside at the 2 moment. I'm sure he will be back in a moment. 3 THE COURT: Sure. 4 MR. RUHNKE: We are ready now, your Honor. 5 THE COURT: We are breaking at noon today with the 6 jury. 7 Let's bring in the jury, please. 8 MR. TIGAR: May I confer with Mr. Morvillo, your 9 Honor? 10 THE COURT: Sure. 11 (Jury present) 12 THE COURT: The witness is on the stand. 13 Mr. Fletcher. 14 THE DEPUTY CLERK: Agent Grasso, you are reminded 15 you're still under oath. 16 THE WITNESS: Yes, I understand. 17 THE COURT: Mr. Morvillo, you may proceed. 18 MR. MORVILLO: Thank you, your Honor. 19 BY MR. MORVILLO: 20 Q. Agent Grasso, before we broke I approached and placed 21 before you what's been marked for identification as Government 22 Exhibits 2203, 2203A, and 2203AL. Do you recognize those three 23 exhibits? 24 A. Yes, I do. 25 Q. Taking them one at a time, can you please explain to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6304 49TMSAT3 Grasso - direct 1 jury what they are? 2 A. Exhibit 2203 is a three and a half inch diskette that I 3 labeled with the case number and the Q No. 154. 2203A is a 4 printout of a document from that diskette that I labeled as 5 document T. It has my markings on it, my initials and the 6 label with the case number, the date of the printing, the Q 7 number and the document name. And 2203AL is the Windows 8 Explorer screen shot highlighting the document that I printed, 9 Government Exhibit 2203A, with my markings, with my initials, 10 the case number, the Q number, and also listed as document T, 11 which matches 2203A. 12 MR. MORVILLO: Your Honor, the government would offer 13 into evidence Government Exhibits 2203, 2203A, and 2203AL. 14 THE COURT: Government Exhibits 2203, 2203A, and 15 2203AL received in evidence. 16 (Government's Exhibits 2203, 2203A, and 2203AL 17 received in evidence) 18 Q. Agent Grasso, referring to Government Exhibit 2203AL, is 19 there a file highlighted on that document? 20 A. Yes. 21 Q. And can you read the last modified date of that document? 22 A. 1/25/1999 at 6:20 p.m. 23 Q. And just so the record is clear, Government Exhibit 2203A 24 is a document that you printed off of Government Exhibit 2203? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6305 49TMSAT3 Grasso - direct 1 Q. And 2203AL is the file directory that contained that 2 document? 3 A. Yes. 4 MR. MORVILLO: May I approach, your Honor? 5 THE COURT: Yes. 6 Q. Agent Grasso, I've just handed you what's been marked for 7 identification as Government Exhibits 2204, 2204A, and 2204AL. 8 Will you please look at those three exhibits and let me know 9 whether you recognize them? 10 A. Yes, I recognize them. 11 Q. Can you please explain to the jury what those exhibits are 12 and how they relate to one another? 13 A. Exhibit 2204 is a three and a half inch diskette that I 14 labeled again with the case number, the Q number, and the field 15 office initials. 2204A is a document labeled document C that I 16 marked with my initials and all the rest of the markings that 17 correspond to this diskette. And 2204AL is the Microsoft 18 Explorer screen shot with this document highlighted in the root 19 directory, again also document C, which matches 2204A. 20 Q. When you say document C, what do you mean? 21 A. That's the name that I gave each of these documents. 22 MR. MORVILLO: Your Honor, the government would offer 23 into evidence Government Exhibits 2204, 2204A, and 2204AL. 24 THE COURT: Government Exhibits 2204, 2204A, and 25 2204AL received in evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6306 49TMSAT3 Grasso - direct 1 (Government's Exhibits 2204, 2204A, and 2204AL 2 received in evidence) 3 Q. Agent Grasso, just so the record is clear, Government 4 Exhibit 2204A is a document that you printed off of Government 5 Exhibit 2204? 6 A. Yes. 7 Q. And 2204AL is a screen shot of the file directory on that 8 disk, 2204, that contained 2204A, correct? 9 A. Yes. 10 MR. MORVILLO: May I approach again, your Honor? 11 THE COURT: Yes. 12 Q. Agent Grasso, I have placed before you what's been marked 13 for identification as Government Exhibit 2205, 2205A, and 14 2205AL. Do you see those exhibits? 15 A. Yes, I do. 16 Q. Can you please review them and let me know whether you 17 recognize them? 18 A. Yes, I recognize them. 2205 is a three and a half inch 19 diskette that I have labeled with the case number, the office 20 initials and the Q number, Q170. Exhibit 2205A is the document 21 that I printed from that diskette. It has my markings and my 22 initials. It is labeled with my identifier document E. And 23 Exhibit 2205AL is a Windows Explorer screen shot showing the 24 file directory of Exhibit 2205 with the document Exhibit 2205A 25 highlighted. It also has my markings on it, my initials, the Q SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6307 49TMSAT3 Grasso - direct 1 number, the case number, the date of the printing, and my 2 initials. 3 MR. MORVILLO: Your Honor, the government offers 4 Government Exhibit 2205, 2205A, and 2205AL. 5 THE COURT: All right. Government Exhibits 2205, 6 2205A, and 2205AL received in evidence. 7 (Government's Exhibits 2205, 2205A, and 2205AL 8 received in evidence) 9 Q. Agent Grasso, directing your attention to the spring of 10 2002, did there come a time when you did some CART-related work 11 on this case? 12 A. Yes. 13 Q. And at that time did you see what's now marked in evidence 14 as Government Exhibit 2201, 2202, 2203, 2204, and 2205? 15 A. Yes. 16 Q. Can you explain generally for the jury what you did at that 17 time that related to this case? 18 A. Each of those diskettes I labeled -- first, I 19 write-protected them, I labeled them, and then I made image 20 files of them. I imaged the diskettes. 21 Q. What does an image mean? 22 A. Using a forensic tool we read the entire disk whether it is 23 the files that are located -- including the files that are 24 located on it that we see here, deleted files of the space 25 that's not being used by that diskette. The entire diskette SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6308 49TMSAT3 Grasso - direct 1 gets imaged. It creates one file that contains all of that 2 information. 3 Q. To your knowledge, did anything about the imaging of these 4 diskettes in any way alter the contents of the documents on the 5 files on those diskettes? 6 A. No. 7 MR. MORVILLO: May I have a moment, your Honor? 8 THE COURT: Yes. 9 MR. MORVILLO: Your Honor, I have no further 10 questions. If I may just approach and retrieve these exhibits. 11 THE COURT: Yes. 12 MR. RUHNKE: I have just a couple quick questions. 13 THE COURT: Absolutely. 14 MR. MORVILLO: Your Honor, may I have a moment to 15 confer with Mr. Tigar and Mr. Ruhnke? 16 THE COURT: Yes. You may also confer with Mr. Ruhnke. 17 Mr. Ruhnke, you may examine. 18 CROSS-EXAMINATION 19 BY MR. RUHNKE: 20 Q. Good morning, Agent. 21 A. Good morning. 22 Q. Your job is basically to take the hard equipment that comes 23 to you and pull out from it anything that you're asked to pull 24 out from it, is that correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6309 49TMSAT3 Grasso - cross 1 Q. And the determination as to what gets done with that, 2 what's going to be used in a case, that's left up to other 3 people, is that correct? 4 A. It is up to the determination of the case agent. 5 Q. The case agent in conjunction with the trial attorneys who 6 actually present the case, correct? 7 A. All my instructions come from the case agent. 8 Q. So that you're not involved at all in deciding what's 9 relevant, what's irrelevant; your job is to find out whatever 10 is there? 11 A. Correct. 12 Q. And recover whatever you can? 13 A. Yes. 14 Q. As part of your work on this particular investigation do 15 you remember examining a Texas Instruments laptop that may have 16 been identified as being seized from the home of Mohammed 17 Yousry? 18 MR. MORVILLO: Objection, your Honor. 19 THE COURT: Overruled. 20 Q. Do you remember doing that? 21 A. No, I do not. 22 Q. Do you remember examining a Dell desktop computer that may 23 have been identified to you as having been seized during the 24 search of the home of Mohammed Yousry? 25 A. No, I do not. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6310 49TMSAT3 Grasso - cross 1 MR. RUHNKE: Thank you very much, Agent. 2 MR. TIGAR: May I inquire, your Honor? 3 THE COURT: Yes, Mr. Tigar, you may examine. 4 CROSS-EXAMINATION 5 BY MR. TIGAR: 6 Q. Agent, I want to first ask you, did you do any analysis or 7 work on any hard drives or computers taken from Ms. Stewart's 8 office? 9 A. I do not know where any of the equipment came from. I was 10 not the search -- I was not at the search sites. I did not 11 conduct the search. 12 Q. Turning now to the material about which you have testified 13 today, you first encountered these diskettes that you were 14 shown in 2002, is that correct? 15 A. Yes. 16 Q. And was that in April or May of that year? 17 A. I believe it was in April of 2002, when he first opened the 18 case. 19 Q. You were asked to make copies of the diskettes, the 20 contents of the diskettes for various purposes, is that right? 21 A. I do not recall making copies of the diskettes. I imaged 22 the diskettes. 23 Q. What is the difference between imaging and making a copy? 24 A. A copy would be a file or file copy of it so you can 25 actually put that disk back in the computer and see the files SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6311 49TMSAT3 Grasso - cross 1 on it. An image creates one file that contains -- sort of a 2 container, Tupperware, so to say. Everything is inside of it. 3 We can't do everything with it. It is one big file that 4 contains all the information about that diskette within it. 5 Q. Now, you first testified today about Government Exhibit 6 2201. 7 MR. TIGAR: May I show that on the Elmo, your Honor? 8 THE COURT: Yes. 9 Q. And you didn't put those words on this label, did you, sir? 10 A. No, I did not. 11 Q. It was in that shape when you got it, right? 12 A. Correct. 13 Q. This was an exhibit that you knew as NYO Q114, correct? 14 A. Yes. 15 Q. When you first attempted to open Q114, did you have some 16 problems with it? 17 A. I believe Q114 we did have problems opening the file, 18 opening the diskette to image it. 19 Q. And you first attempted to utilize a program called XDF to 20 get at Q114, correct? 21 A. We first -- I would have to refer to my notes to see the 22 exact sequence. 23 MR. TIGAR: May I approach, your Honor? 24 THE COURT: Yes. 25 Q. Showing you now, sir, what's been produced to us as Grasso SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6312 49TMSAT3 Grasso - cross 1 3520 bravo, that's your memorandum, is it not, sir? 2 A. Yes, it is. Those are my case numbers. 3 Q. Would it refresh your recollection, sir, if you looked at 4 this information about Q114? Just answer yes or no. 5 A. Yes. 6 Q. Did you have enough time to look at it or would you like to 7 keep it? 8 A. You can take it back. 9 Q. I am going to ask you questions, sir, and ask you, please, 10 if you remember, please give us an answer. If you don't, just 11 tell us you're looking at your notes. 12 A. Okay. 13 Q. So you first attempted to access Q114 with the XDF program, 14 correct? 15 A. Correct. 16 Q. And XDF is a proprietary program that the FBI licenses? 17 A. Yes. 18 Q. And basically you went through a number of steps to try to 19 get at the information on this diskette and finally you 20 succeeded, correct? 21 A. Yes. 22 Q. What was the problem? Why were you having trouble getting 23 in here? 24 A. It was actually a piece of tape partially or fully covering 25 one of the density indicators on the diskette. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6313 49TMSAT3 Grasso - cross 1 Q. So it wasn't one of those high-tech problems? 2 A. Nope. 3 Q. It was a piece of Scotch tape? 4 A. A piece of Scotch tape. 5 Q. Once you removed the piece of Scotch tape it opened up just 6 fine? 7 A. Yes, it did. 8 Q. On this file, 2201, you took a picture of a directory, 9 correct? 10 A. A screen shot? 11 Q. Yes, a screen shot. 12 A. One of the exhibits we saw, yes. 13 MR. TIGAR: May I show 2201AL, your Honor? 14 THE COURT: Yes. 15 Q. This is what you've identified as a screen shot, right? 16 A. Correct. 17 Q. And is that the sort of thing that on some computers you 18 get if you push a little button that says print screen? 19 A. In this case on the Windows it no longer does that 20 function, so it is actually -- you take the screen shot of it 21 using the print screen button, as you said, and then bringing 22 it to another application called Word Pad and using that to 23 print out the screen. 24 Q. So however we do it, if I have a computer or if you have a 25 computer that's running Windows and I go into Windows Explorer, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6314 49TMSAT3 Grasso - cross 1 I see something like this information, correct? 2 A. Correct. 3 Q. Now, the information on here, this is one that's hard to 4 read. That, you said, is a GIF file, right? 5 A. That is what the extension is on that file. It says 6 arab.1.text.4.gif. 7 Q. And it is in a directory on the A drive called untitled 8 document, underscore, files, correct? 9 A. Correct. 10 Q. Now, was that directory name given by you or was that on 11 the diskette, 2201, when you got it? 12 A. That was on the diskette. 13 Q. And a directory is just a way of organizing files in a 14 particular storage place, like a drive A or C, correct? 15 A. Yes. 16 Q. Now, this diskette, 2201, that we have looked at here and 17 all these others, they are floppy diskettes each with a 1.44 18 meg capacity, correct? 19 A. Yes. 20 Q. When we look over here at modified, would you tell us, 21 again, what does modified mean? 22 A. The last -- that the file was opened, changed in some 23 format and saved. 24 Q. So if you opened the file but didn't change it in any way, 25 would the modified date be the same as when you opened it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6315 49TMSAT3 Grasso - cross 1 A. I believe so, yes. 2 Q. In other words, if you don't make any changes it just goes 3 back to being modified, right? 4 A. It doesn't change -- 5 Q. It shows the same thing, correct? 6 A. Yes. 7 Q. In other words, you attempted -- excuse me. 8 You preserved the integrity of the data on this 9 diskette by write-protecting it, correct? 10 A. Correct. 11 Q. And you write-protect it by toggling some little plastic 12 button on the actual diskette, correct? 13 A. Yes. 14 Q. And you did that, did you not, in order that there wouldn't 15 be any changes to the file? 16 A. Yes. 17 Q. You wanted the file that you printed out to be the same 18 file that existed at the time the diskette was taken from 19 wherever it was taken, right? 20 A. Yes. 21 Q. Now, in addition to finding out or in addition to 22 write-protecting and printing out and then taking the diskette 23 out, did you do any examination to determine when these various 24 files were created? 25 A. I don't think so. I'm trying to think if I did a specific SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6316 49TMSAT3 Grasso - cross 1 examination of when the files were created. No, not that I 2 recall. 3 Q. Is it possible for a computer person opening a Microsoft 4 Word file to go in and find out when the file was first 5 created? 6 A. Yes. 7 Q. And the system that the file is on keeps a record of that, 8 correct? 9 A. Well, on a diskette it is slightly different. There was 10 some reference to a hard drive on those files. So I don't know 11 if the file was created on a diskette or the file was created 12 on a computer and then copied to a diskette. 13 Q. So there would be some creation information, but you don't 14 know whether that meant created on the computer or created on 15 the diskette, right? 16 A. Correct. 17 Q. In addition to -- 18 MR. TIGAR: May I show the witness 2202AL, your Honor? 19 THE COURT: Yes. 20 Q. I'm going to show you now 2202AL in evidence. And this is 21 a screen shot, is it not, of a diskette that has the Jihad 22 files on it, correct? 23 A. Yes. 24 Q. And that particular diskette is in evidence as government 25 2202, is it not, sir? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6317 49TMSAT3 Grasso - cross 1 A. Yes. 2 MR. TIGAR: Your Honor, may I lay that diskette right 3 on top of this exhibit? 4 THE COURT: Yes. 5 Q. This particular diskette that I'm pointing to that's on the 6 Elmo now, it doesn't have any subdirectories, correct? 7 A. No, it does not. 8 Q. So that when a person that has a computer opens up their my 9 computer or Windows Explorer they will see, here is the three 10 and a half inch floppy, right? 11 A. Yes. 12 Q. As soon as they click on it and open it they will see these 13 five files, correct? 14 A. Yes. 15 Q. And each one of these files is a Microsoft Word file, 16 correct? 17 A. According to my computer, it would be. You have to examine 18 the documents perhaps a little bit closer to make sure that 19 they would. The explorer goes by the extension, the DOC 20 extension. It therefore assumes that it is a Microsoft Word 21 document. 22 Q. So that when your computer sees a DOC extension it gives 23 you a Microsoft Word document, right? 24 A. Yes. 25 Q. And if for some reason the person who made this diskette SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6318 49TMSAT3 Grasso - cross 1 was using that extension for some other purpose, you would know 2 that when you tried to open the file, correct? 3 A. Correct. 4 Q. Now, in fact, when you printed out this file it was a 5 Microsoft Word file, correct? 6 A. Yes. 7 Q. And was it in a foreign language? 8 A. I would have to see the document. I don't recall. 9 MR. TIGAR: May I show the witness 2202A, your Honor? 10 THE COURT: Yes. 11 Q. Just the front page, sir, of what's in evidence as 2202A. 12 You see that? 13 A. Yes. 14 Q. That's what you printed out, correct? 15 A. Yes. 16 Q. That's in a foreign language, right? 17 A. It is not English. I don't know what it is. 18 Q. It is not a language you know, correct? 19 A. Correct. 20 Q. And when we go down to the bottom of 2202A we see DENY 8, 21 et cetera, right? 22 A. Yes. 23 Q. You gave it the name deny 8? 24 A. It is an acronym for derivative evidence, New York. It is 25 a standard that the entire FBI uses. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6319 49TMSAT3 Grasso - cross 1 Q. That's not a name that you gave it on the computer; that's 2 just a name you gave it on the sticker, right? 3 A. Yes. 4 Q. Now? 5 MR. TIGAR: May I place 2202AL on the Elmo again, your 6 Honor? 7 THE COURT: Yes. 8 Q. Looking again at 2202AL, you said that this author and 9 title language is not something you recognize as a language you 10 know, correct? 11 A. Correct. 12 Q. Did anyone ever ask you to try to figure out who the author 13 is of this document Gihad1 or Gihad1 as it appeared on the 14 diskette? 15 A. No. 16 Q. So that's not an examination you did, correct? 17 A. Correct. 18 Q. Now, after you first got these files in the year 2002, 19 April and May, when is the next time you started working on 20 them? 21 A. After the initial examination would be this summer. 22 Q. In August or so? 23 A. I believe it was in August of 2004. 24 Q. And who gave you the direction as to what to go look for 25 and try to copy or print? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6320 49TMSAT3 Grasso - cross 1 A. A case agent. 2 Q. That would be Ms. Whittle? 3 A. Ms. Whittle. 4 Q. Are you familiar with a program called Bookmark or do you 5 have something called Bookmark that you work with? 6 A. Yes. 7 Q. Now, Bookmark is a program that does permit you to find out 8 file creation modification and access dates, correct? 9 A. Well, the program is actually the forensics tool kit. A 10 function of that is a Bookmarking, is simply when you highlight 11 the files we Bookmark it. It is a way of documenting or 12 Bookmarking, setting aside files that you want that are of 13 interest to a case agent. It is just a recordkeeping matter. 14 Q. So there came a time when the case agent asked you to 15 Bookmark certain files, right? 16 A. Correct. 17 Q. And you Bookmarked them and printed out what you had done, 18 correct? 19 A. As part of my case notes, yes. 20 Q. In your case notes you had -- you listed the name of each 21 diskette by its Q number, correct? 22 A. I would have to look -- it is an automatic process. It 23 generates a report of what files the case agent selected. 24 MR. TIGAR: Your Honor, may I place this diskette on 25 the Elmo, 2201 in evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6321 49TMSAT3 Grasso - cross 1 THE COURT: Yes. 2 MR. TIGAR: And may I approach the witness? 3 THE COURT: Yes. 4 Q. Agent, I'm showing you now what has been furnished to us as 5 your examination notice. Do you recognize those at your notes? 6 A. Yes, I do. 7 Q. And turning here, do you see this Bookmark? 8 A. Yes. 9 Q. And now I'm leafing through here and do you see on page 4 10 of your Bookmark the files Gihad1, 1, 2, and 3? 11 A. Yes, I do. 12 Q. And were you able with your analysis -- and these files, 13 these three files, it says, are on Q111, is that right? 14 A. Yes. 15 Q. And Q111 is a diskette that's in evidence, right? 16 A. Yes. 17 MR. TIGAR: May I return and put that one on the Elmo, 18 your Honor, for the jury? 19 THE COURT: Yes, sure. 20 Q. That's Q111, right? 21 A. Yes. 22 Q. That's the one we looked at the screen shot of, correct? 23 A. Yes. 24 Q. Now, these three files, Gihad1, 2, and 3, according to 25 Bookmark, were each created on what date? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6322 49TMSAT3 Grasso - cross 1 A. 4/5/1999 -- looking at 1, 2, and 3? 2 Q. Yes. 3 A. All the same, 4/5/1999. 4 Q. All at about 6 p.m. in the evening? 5 A. 6:04, 6:04 -- about 6:04 p.m. 6 Q. When the record of when it was created was made, is that in 7 the local time of the place it was created? 8 A. Whatever time and date was on the computer. 9 Q. That's right. Because if you put the wrong time in your 10 computer or date, when you initialize it, then everything will 11 be wrong, right? 12 A. Correct. 13 Q. Garbage in, garbage out? 14 A. Correct. 15 Q. That's a saying in the computer industry? 16 A. Sure. 17 Q. Then there is a modification date on each one of these 18 files. As to the first two that is April -- the first one is 19 January 25 of '99, right, for 1 and 2? 20 A. Yes. 21 Q. And for Gihad3 it is November 7, '98, correct? 22 A. Yes. 23 Q. Now, then there is a little note here that says: ACC colon 24 as to these three files. What does that mean? 25 A. That was the last time the file was accessed, when someone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6323 49TMSAT3 Grasso - cross 1 opened it up and did anything with it without even saying it. 2 Q. With respect to Gihad1, Gihad2, and Gihad3, when is the 3 last time that somebody opened it up and read it and looked at 4 it? 5 A. April 5, 1999. 6 Q. And that's before the fall of 1999, correct? April is in 7 the spring? 8 A. I guess so, yes. 9 Q. It is okay. We can agree on that? 10 A. Yes, sure. 11 Q. And the diskettes you've told us were seized from 12 Mr. Sattar's home, as you were informed, on April -- you're 13 looking at me. 14 A. I never said that. I don't know when they were searched 15 and seized. 16 Q. You first saw the diskettes in April of 1999, correct? 17 MR. MORVILLO: Objection. 18 MR. TIGAR: The objection is well taken. I withdraw 19 the question. 20 Q. You first saw the diskettes in April of 2002, correct? 21 A. Correct. 22 Q. And it was your information that these were items seized 23 under a search warrant dated April 8, 2002, correct? 24 A. I am not familiar with the search warrant. I would have to 25 see the search warrant. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6324 49TMSAT3 Grasso - cross 1 MR. TIGAR: May I approach, your Honor? 2 THE COURT: Yes. 3 Q. Would it refresh your recollection, sir, if I showed you an 4 FBI 302 form, 3520 alpha, that bears your name? 5 A. Yes. 6 Q. Having looked at that, does that refresh your recollection 7 that these were seized -- 8 A. Yes. 9 Q. Let me finish my question if I may, sir -- that these were 10 seized under a search warrant issued April 8, 2002? 11 A. Yes. 12 Q. As a computer technician or computer response person in the 13 FBI, you're very concerned, are you not, with the integrity of 14 the evidence? 15 A. Yes. 16 Q. And does your Bookmark program help you to maintain the 17 integrity of evidence? 18 A. Does the Bookmark program -- the Bookmark is a function of 19 the forensics tool kit. The forensics tool kit maintains the 20 integrity of the evidence, yes. 21 Q. A part of maintaining the integrity of evidence is to make 22 sure that files that are seized at a certain time are not 23 modified while they are in your custody, correct? 24 A. Correct. 25 Q. Computer evidence is digital evidence, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6325 49TMSAT3 Grasso - cross 1 A. Correct. 2 Q. And digital files are as compared to, let us say, analog 3 files on magnetic tapes, like you would have cassette tapes, 4 relatively easy to alter if we have a computer and you can open 5 them up, right? 6 A. I'm not familiar with that analog information. I cannot 7 make the analogy. 8 Q. If you had a Note Pad file, for example -- that's a program 9 you're familiar with? 10 A. Yes. 11 Q. Note Pad is a function of Microsoft Windows, right? 12 A. Correct. 13 Q. And you can open up a file in Note Pad, right? 14 A. Correct. 15 Q. And with a few key strokes you can change what's in there, 16 right? 17 A. Yes. 18 Q. Then when you save the Note Pad file after you have changed 19 it with your few keystrokes, what happens to the directory? 20 A. The directory itself? 21 Q. Yes. 22 A. The name or are you referring to the modified dates -- 23 Q. The modified date in the directory. 24 A. The modified date would be updated or the modified field 25 would be updated to the current date and time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6326 49TMSAT3 Grasso - cross 1 Q. And if you're operating the machine correctly and you save 2 the file without changing it, the modified date should stay the 3 same, right? 4 A. Correct. 5 MR. TIGAR: May I have a moment, your Honor? 6 THE COURT: Yes. 7 MR. TIGAR: Thank you very much, sir. I have no 8 further questions. 9 MR. MORVILLO: Your Honor, very brief redirect. 10 THE COURT: Yes. 11 REDIRECT EXAMINATION 12 BY MR. MORVILLO: 13 Q. Agent Grasso, you testified a moment ago that the access 14 date for Gihad1.doc, Gihad2.doc, and Gihad3.doc was April 5 of 15 1999? 16 A. Yes. 17 Q. And the modified date, the last modified date for those 18 documents, do you recall what that was? 19 A. No, I do not. 20 MR. MORVILLO: Your Honor, may I display on the Elmo 21 Government Exhibit 2202AL? 22 THE COURT: Yes. 23 Q. Agent Grasso, do you see screen in front of you displaying 24 Government Exhibit 2202AL? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6327 49TMSAT3 Grasso - redirect 1 Q. This is the screen snapshot of the root directory for 2 Government Exhibit 2202, is that correct? 3 A. Yes. 4 Q. What is the modified date for Gihad1.doc and Gihad2.doc? 5 A. 1/25/1999. 6 Q. And what is the modified date for Gihad3.doc? 7 A. 11/7/1998. 8 Q. Now, you testified that the access date was April 5 of 9 1999? 10 A. Okay, yes. 11 Q. And you also testified that the create date was April 5 of 12 1999? 13 A. Correct. 14 Q. How is it possible that a document could be created after 15 it is modified? 16 A. If a document is created or a file is created on a computer 17 and is then -- it would get the creation date and the modified 18 date and the access date assigned to it at that point. And 19 when you copy it to another media, to another hard drive, to a 20 floppy, to a CD, to some other piece of media, it would create 21 a new create date on that media. If it went from a hard drive 22 to a diskette, the diskette's create date would be the date 23 that it was copied. The modified date would copy over from the 24 original media. So the modified and access date would come 25 over with it or the modified date would come over from the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6328 49TMSAT3 Grasso - redirect 1 original media. 2 Q. So is it surprising to you that in this instance there was 3 a create date that was later than the last modified date? 4 A. No. 5 MR. TIGAR: Objection to leading. 6 THE COURT: Sustained. 7 Q. Is there anything surprising to you about the dates that 8 the document was created and the date that the document was 9 modified? 10 A. No. 11 Q. You also testified that the document was last accessed on 12 April 5 of 1999, is that correct? 13 A. Yes. 14 Q. All three of these documents, actually. 15 Does that access date tell you anything about what was 16 done with the document, when it was accessed? 17 A. No. 18 Q. Could it have been printed out at that time? 19 A. Yes. 20 Q. Could it have been e-mailed to someone else? 21 A. Yes. 22 Q. Could it have been copied to another medium? 23 A. Yes. 24 MR. MORVILLO: May I have a moment, your Honor? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6329 49TMSAT3 Grasso - redirect 1 MR. MORVILLO: I have no further questions, your 2 Honor. 3 MR. TIGAR: May I approach, your Honor? 4 THE COURT: Yes. You may examine, limited to 5 redirect. 6 MR. TIGAR: Thank you, your Honor. 7 RECROSS EXAMINATION 8 BY MR. TIGAR: 9 Q. Showing you what we have marked as LS50, is that page 4 of 10 the Bookmark? 11 A. Yes. 12 MR. TIGAR: We offer it, your Honor. 13 MR. MORVILLO: No objection, your Honor. 14 THE COURT: LS50 received in evidence. 15 (Defendant's Exhibit LS50 received in evidence) 16 MR. TIGAR: May I display it on the Elmo, your Honor? 17 THE COURT: Yes. 18 Q. This is LS50, sir. And here are the Gihad1, 2, and 3 about 19 which we were speaking, correct? 20 A. Yes. 21 Q. Now, let's look at create first. To your understanding, 22 if, for example, a document called Gihad1.doc was copied onto a 23 floppy disk from somebody's hard drive, it would bear a create 24 date of the date of copying, correct? 25 A. Correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6330 49TMSAT3 Grasso - recross 1 Q. So that's not the date that somebody actually typed the 2 document in; that's the date of the creation of what was on 3 this diskette, correct? 4 A. Correct. 5 Q. Then there is a modified? 6 A. Yes. 7 Q. We already talked about that. Nobody got in and modified 8 it after the modified date that's shown here so far as this 9 shows, correct? 10 A. Correct. 11 Q. Now, what does access mean? 12 A. The last time a file was opened but not necessarily saved. 13 Any activity that was done on that file, printing, just 14 viewing. 15 Q. So any of that, right? And is this date, April 5, '99, the 16 latest date that you know of in all of your work that these 17 three files were accessed? 18 A. Other than by myself? 19 Q. Other than by yourself, yes. 20 A. Yes. 21 MR. TIGAR: No further questions. 22 THE COURT: No further questions. The witness is 23 excused. You may step down. 24 (Witness excused) 25 MR. BARKOW: Your Honor, we have a witness here, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6331 49TMSAT3 Grasso - recross 1 given the time we are not going to make it very far, if 2 anywhere. 3 THE COURT: We will break for the day. 4 I had told you, ladies and gentlemen, that we would 5 break at noon today. And it is very close to noon. So we will 6 break for today and resume at 9:30 tomorrow morning. 7 Please, ladies and gentlemen, remember all of my 8 continuing instructions. Please, don't talk about this case at 9 all among yourselves or with anyone when you go home. Please 10 always remember, don't look at or listen to anything to do with 11 the case. If you should see or hear something inadvertently, 12 simply turn away. 13 And always remember to keep an open mind until you 14 have heard all of the evidence, I've instructed you on the law, 15 and you've gone to the jury room to begin your deliberations. 16 Fairness and justice to the parties requires that you do that. 17 With that, have a good day and I look forward to 18 seeing you tomorrow. 19 All rise, please. Please follow Mr. Fletcher to the 20 jury room. 21 (Jury not present) 22 THE COURT: Why don't we take five minutes and then we 23 will resume. 24 (Recess) 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6332 49TJSAT4 1 (In open court; jury not present) 2 THE COURT: Please be seated, all. 3 All right, I've mentioned before, but every now and 4 then I see a juror looking at another juror's notes. Do the 5 parties want me to give any instructions to the jurors? No? 6 No. 7 With respect to timing, Ms. Stewart said yesterday 8 that one of the things that she seeks is to have Mr. Elliot and 9 Agent Kerns recalled. Now, I haven't read the papers so I 10 don't know exactly. These are papers that are only going to be 11 submitted to me tomorrow, but the government expects to rest 12 early next week. So I don't know what the disposition will be 13 of the application. Prudence would suggest that the witnesses 14 be available. 15 MR. RUHNKE: Your Honor, in terms of timing, as your 16 Honor has just raised, we have been discussing that issue with 17 the government, and we are going to have a particular request 18 to make. I would like to confer a little more with the 19 government before I make it. Maybe before we adjourn today, we 20 should just discuss that issue, as to whether there will be a 21 break between the government case and the defense case, how 22 long, timing of the Rule 29 motions. 23 I would like an opportunity to speak a little bit more 24 with the government on that, if I can. It would take 30 25 seconds when we get to it. I know your Honor has an agenda of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6333 49TJSAT4 1 things. 2 THE COURT: My agenda is your agenda. The item that I 3 obviously wanted to cover and was prepared to cover now, and 4 then we could also take a break, is the Stewart search 5 exhibits. 6 MR. RUHNKE: That is fine. We'll come back to it. 7 THE COURT: Then we'll take a break, which is fine. 8 Some of the Stewart search exhibits are newspaper 9 articles. The court has already explained that there are some 10 circumstances under which newspaper articles are admissible. 11 In particular, for the purposes of the Stewart search exhibits, 12 the newspaper articles are not offered for their truth, but for 13 their effect on the knowledge, intent and state of mind of Ms. 14 Stewart. 15 The articles will be subject to a limiting 16 instruction. See generally Coyne v. Taber Partners, 53 F.3d, 17 454, 461 (1st Cir. 1995); Burgess V Premier Corp., 727 F.2d, 18 826,835 (9th Cir. 1984); Roniger against McCall, 119 F. Supp. 19 2d 407,410 (S.D.N.Y. 2000). 20 The newspaper articles are not general articles that 21 appeared in the press, but articles that were clipped and some 22 of which were underlined and that were in Ms. Stewart's files 23 and from which the jury could take the appropriate or probative 24 value for their effect on Ms. Stewart's own knowledge, intent 25 and state of mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6334 49TJSAT4 1 In reviewing the individual articles, the court has in 2 each case balanced the relevance of the evidence for the 3 proposed evidentiary purpose against any dangers of unfair 4 prejudice, including any risk that the evidence would be 5 considered for its truth rather than for its effect on Ms. 6 Stewart's knowledge, intent and state of mind. 7 As the court noted in ruling on the Sattar search 8 exhibits, the fact that some of the exhibits relate to a period 9 before the indictment does not render them irrelevant. Given 10 the careful limiting instructions and the balancing analysis 11 that the court will perform with respect to each article, the 12 relevance of the evidence is not outweighed by the danger of 13 unfair prejudice or confusion, except as explained below. See 14 Burgess 727 F.2d at 835. 15 It is also useful at the outset to deal with the 16 numerous exhibits that Ms. Stewart has proposed, that she asks 17 be admitted for the purposes of the Rule 6 of completeness and 18 particularly under Federal Rule of Evidence 106, which provides 19 that: 20 "When a writing or reported statement or part thereof 21 is introduced by a party, an adverse party may require the 22 introduction at that time of any other part or any other 23 writing or recorded statement which ought in fairness to be 24 considered contemporaneously with it." 25 Under this principle, "An omitted portion of a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6335 49TJSAT4 1 statement must be placed in evidence, if necessary, to explain 2 the admitted portion, to place the admitted portion in context, 3 to avoid misleading the jury, or to ensure fair and impartial 4 understanding of the admitted portion. The completeness 5 doctrine does not, however, require the admission of portions 6 of a statement that are neither explanatory of nor relevant to 7 the admitted passages." 8 United States against Jackson, 180 F.3d, 55, 73 (2d 9 Cir. 1999), citation omitted; United States v. Southland Corp., 10 760 F.2d 1366, 1378 (2d Cir. 1985). 11 Ms. Stewart does not proffer any other parts of any 12 other documents proffered by the government. Rather, she 13 offers other documents that were contained in the same Redwell 14 and urges that all of them should be introduced under the rule 15 of completeness. She has not attempted to analyze the 16 individual documents or to explain why any of them are 17 admissible under the rule of completeness in view of the 18 documents proffered by the government, and she cites no 19 authority for her position. 20 She argues that the documents addressed, "The very 21 same issues addressed by the newspaper clippings -- the ongoing 22 struggle in Egypt between a repressive government and various 23 political forces in the country." Letter of Michael Tigar, 24 dated September 27, 2004. 25 But that formulation is far too broad and does not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6336 49TJSAT4 1 deal with the specific articles, the specific items covered in 2 the articles and the relevance of those articles to the 3 specific knowledge, intent and state of mind of Ms. Stewart in 4 connection with the issues in this case. 5 The allegations of civil rights abuses in Egypt, which 6 is the subject of most of the defendants' exhibits, would in no 7 way be necessary under the rule of completeness to articles 8 that concern alleged killings by the Islamic Group offered for 9 their effect on Ms. Stewart's state of mind. 10 In any event, the court has carefully considered all 11 of Ms. Stewart's proposed exhibits, and all but two of the 12 exhibits proffered by Ms. Stewart are not necessary to be 13 considered to be considered with the exhibits proffered by the 14 government. The exhibits proffered by the government are in no 15 sense incomplete, and the exhibits proffered by Ms. Stewart are 16 not necessary to understand them or place them in context. 17 Ms. Stewart has proffered no authority for the 18 admissibility of her proposed exhibits under the rule of 19 completeness. The two exceptions are the two decisions of the 20 immigration judge in Nasser Ahmed's case. Stewart 286 and 21 Stewart 2877. 22 These decisions, in turn, are not necessary for 23 completeness for the great bulk of the exhibits proffered by 24 the government. However, the decision itself deals explicitly 25 with the government's submission in that hearing with respect SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6337 49TJSAT4 1 to the Islamic Group, Government Exhibit 2622 and the issue of 2 the April 1996 killing of 18 tourists in Cairo and the possible 3 responsibility of Sheikh Rahman for that massacre. 4 This is also the subject of five newspaper articles 5 proffered by the government; Government Exhibit 2611, 2612, 6 2626, 2627 and 2628. Each of these five proffered government 7 exhibits is not offered for the truth of the matters asserted, 8 but rather for their effect on Ms. Stewart's knowledge, intent 9 and state of mind. 10 When the immigration judge dealt explicitly with the 11 government's submission and the events of the April 1996 12 massacre, the immigration judge's decision, which was also kept 13 by Ms. Stewart, should in fairness be considered with the 14 government's submission for the effect on Ms. Stewart's state 15 of mind, in considering the government exhibits. 16 Thus, if the government seeks to offer Government 17 Exhibits 2622, 2611, 2612, 2626, 2627, or 2628, which, as the 18 court will shortly discuss, are admissible with limiting 19 instructions, then the two decisions by the immigration judge 20 should also be admitted in fairness for completeness. 21 These exhibits would also be subject to the limiting 22 instruction that they are not offered for the truth of any 23 matters asserted, but solely with respect to the knowledge, 24 intent and state of mind of Ms. Stewart. If the government 25 does not offer any of those six exhibits, there is no SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6338 49TJSAT4 1 reasonable argument that the two immigration decisions should 2 be admitted for the purposes of completeness with respect to 3 the remaining exhibits. 4 Finally, it should be plain none of the other 5 documents proffered by the defendant should be admitted for the 6 purposes of completeness. They do not fall within the 7 reasonable interpretation of the rule of completeness or 8 Federal Rule of Evidence 106. As the court has explained, the 9 court has read in detail each of the proposed exhibits and 10 compared them against the exhibits sought to be admitted by the 11 government. 12 I will now turn to the individual exhibits, Government 13 Exhibits 2611 and 2612. The objection to these exhibits are 14 overruled. They could be admitted subject to the limiting 15 instruction. These are newspaper articles. They are not 16 received for the truth of any of the matters asserted in the 17 articles, but solely with respect to the knowledge, intent and 18 state of mind of Ms. Stewart. However, I've also explained 19 that if these articles are admitted, then the two decisions by 20 the immigration judge should also be admitted. 21 Government Exhibit 2614. The defendant objects on the 22 grounds of hearsay, but the objection is overruled. The 23 exhibit is not received for the truth of any of the matters 24 asserted in the letter. It is relevant to Ms. Stewart's 25 knowledge, intent and state of mind. The defendant objects to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6339 49TJSAT4 1 the fact that Osama Bin Laden is mentioned, but the mention of 2 Bin Laden does not mean that the relevance of the exhibit is 3 outweighed by any danger of unfair prejudice. 4 Government Exhibit 2619. The objection to this 5 newspaper article is overruled, for the reasons already 6 explained. The article will be admitted subject to the 7 limiting instruction. This is a newspaper article. The 8 article is not received for the truth of any of the matters 9 asserted in the article, but solely with respect to the 10 knowledge, intent and state of mind of Ms. Stewart. 11 Government Exhibit 2620. This article is the same as 12 Government Exhibit 544, which the court has already ruled on. 13 It is admissible subject to the limiting instruction for 14 newspaper articles, as in Government Exhibit 2611, but the 15 article should be redacted in the same way as Government 16 Exhibit 544. 17 Government Exhibit 2622. These are various documents 18 declassified in connection with an immigration proceeding 19 relating to Nasser Ahmed. As I've already explained, the 20 government does not offer this exhibit for the truth of what is 21 contained in the exhibit, but for its effect on Ms. Stewart's 22 knowledge, intent and state of mind. 23 As I've also explained, if this exhibit is to be 24 introduced and the two decisions by the immigration judge which 25 deal with this exhibit and consider this exhibit should also be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6340 49TJSAT4 1 admitted not for the truth, but for the effect on Ms. Stewart's 2 knowledge, intent and state of mind and should, in fairness, be 3 considered together. 4 As separate objections, the defendant argues that the 5 document contains hearsay, excluded by Federal Rule of Evidence 6 803 (8). That argument is misplaced. Federal Rule of Evidence 7 803 (8) is an exception to the hearsay rule pursuant to which 8 certain documents can be admitted for their truth as an 9 exception to the hearsay rule. 10 The government does not seek to offer these documents 11 for their truth, but for their effect on Ms. Stewart, who had 12 them, and for their effect on her knowledge, intent and state 13 of mind. Therefore, the government does not rely on 803 (8), 14 and 803 (8) is not an obstacle to admissibility. 15 The defendant also objects on the grounds that 16 materials have been redacted, and the court should review the 17 redactions for possible inclusion under Rule 106. That 18 argument is without merit. The document as redacted was in the 19 defendants' file. It is being received for the effect of the 20 unredacted portions on the defendant; and, therefore, the 21 redacted material could not affect the defendant's state of 22 mind and is not necessary to be considered for the purposes of 23 completeness. 24 However, as the court has already explained, the 25 immigration judge's treatment of this document should for the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6341 49TJSAT4 1 purposes of completeness and fairness be considered at the same 2 time as this document is considered. 3 If the document is admitted, it will be received 4 subject to the limiting instruction that it is not being 5 received for the truth of any of the matters asserted in the 6 document, but solely with respect to Ms. Stewart's knowledge, 7 intent and state of mind. If the document is admitted, I would 8 also redact on Page 4 the second full paragraph that refers to 9 the trial judge's description of the potential effects of 10 Sheikh Rahman's plots. The relevance of that description is 11 outweighed by the danger of unfair prejudice. 12 Government Exhibits 2623, 2624, 2625, 2626, 2627, 13 which is the same as Government Exhibit 2611, and 2628 are all 14 newspaper articles in which specific claims of violence are 15 claimed for the Islamic Group. They're each newspaper articles 16 that were in Ms. Stewart's file. They are relevant to her 17 knowledge, intent and state of mind. 18 Their relevance for the limited purpose is not 19 outweighed by the danger of unfair prejudice, particularly 20 because they will be subject to the same limiting instruction. 21 Each of the exhibits is a newspaper article. They're not 22 received for the truth of any statements in the articles, but 23 solely with respect to the knowledge, intent and state of mind 24 of Ms. Stewart. 25 However, for the reasons already explained, if the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6342 49TJSAT4 1 government offers Government Exhibits 2626, 2627 and 2628, then 2 the two decisions by the immigration judge should also be 3 admitted for the purposes of fairness and completeness. 4 Government Exhibit 2629 are two newspaper articles, 5 but the primary thrust of the articles concern, "The Islamic 6 Justice Group." The parties appear to agree that that group 7 has nothing to do with this case. Therefore, I will exclude 8 the article on 403 grounds. 9 Government Exhibit 2630 is similar to Government 10 Exhibit 2623. For the same reasons, it is admissible subject 11 to the same limiting instruction. 12 Government Exhibit 2631 is a May 13, 1996 Daily News 13 article. It refers to fears of federal officials as to what 14 the effect of Sheikh Omar Abdel Rahman's words from prison 15 might be. It also refers to a statement by an American Islamic 16 Group, which does not appear to be the same as any group 17 alleged in the indictment. 18 Given the possibilities of confusion and unfair 19 prejudice, the probative value of the exhibit or its effect on 20 the knowledge, intent and state of mind of Ms. Stewart does not 21 warrant its admission and will be excluded under Federal Rule 22 of Evidence 403. 23 Moreover, it is also plain that this article would 24 trigger the admissibility of the two immigration judge 25 decisions. It deals with the various issues with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6343 49TJSAT4 1 immigration judge, the timing of the issuance of Sheikh 2 Rahman's statement and Cairo massacre. 3 It also notes the arrest of Nasser Ahmed as a threat 4 to national security, which was also discussed by the 5 immigration judge. 6 Government Exhibit 2634 is a note concerning 7 interruption and an English translation. I've already 8 explained earlier the admissibility of this exhibit, and the 9 parties were going to discuss how much of the entire notebook 10 was going to be admitted in evidence. 11 Government Exhibits 2637 and 2638 are typewritten 12 statements attributed to Sheikh Omar Abdel Rahman and appear to 13 be statements from prison, calling for action upon his death. 14 The objection is authenticity, because Sheikh Omar Abdel Rahman 15 does not type. But the authenticity of the statements as 16 statements of Omar Abdel Rahman from prison for the purposes of 17 admissibility is sufficiently established by their location at 18 his lawyer's office, the internal content of the statements, 19 including the attribution and content of the statements and 20 their similarity to the statements found in the search of 21 Mr. Sattar's premises. 22 The documents will be subject to the same limiting 23 instruction as the exhibit found in the search of Mr. Sattar's 24 premises, Government Exhibit 2057, namely, "These exhibits are 25 not received for the truth of any of the matters asserted in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6344 49TJSAT4 1 the exhibits." 2 Government Exhibit 2639. This is a letter from CNN to 3 Ms. Stewart, dated November 24, 1998. The objection is hearsay 4 and the fact that it refers to Bin Laden. The letter is not 5 offered or received for the truth of any of the matters 6 asserted in the letter, and the jury will be so instructed. 7 Therefore, the hearsay objection is not well-founded. 8 The government is correct that the letter is relevant 9 to the allegations in Count 1 of the indictment. Ms. Stewart 10 received the list of questions from CNN for Sheikh Omar Abdel 11 Rahman on subjects such as Osama Bin Laden, the Sheikh's will 12 and calls for violence against Americans. 13 This letter should be placed in the context of Ms. 14 Stewart's letter to CNN, dated November 20, 1998, in which Ms. 15 Stewart asks for detailed questions for the Sheikh and points 16 out that there will be another call with the Sheikh on November 17 27th. 18 In any event, the list of questions themselves is 19 relevant to the knowledge, intent and state of mind of Ms. 20 Stewart. Therefore, the limiting instruction is, "This 21 document is not received for the truth of any of the matters 22 asserted in the exhibit." 23 Government Exhibit 2657. This is the republication of 24 the August 3rd, 2000 letter from Mr. Fitzgerald to Ms. Stewart 25 with its attachments. Ms. Stewart does not object to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6345 49TJSAT4 1 admission of the document, but to "republication" of the 2 Fitzgerald material. 3 There should be some limits on the reading of the same 4 exhibits because they are found in separate files. The court's 5 recollection is that most of this exhibit was read to the jury 6 during Mr. Fitzgerald's testimony and again recently I believe 7 as an exhibit found in the Sattar search. 8 The newspaper articles, if the court's recollection is 9 correct that they've been read twice, do not have to be read a 10 third time. This exhibit does have cover fax pages, and the 11 Fitzgerald letter can be read along with the cover fax pages. 12 The exhibit can be displayed to the jury. The attached 13 newspaper articles, if the court's recollection is correct, 14 should not be read a third time, but simply displayed to the 15 jury. The titles, dates and authors of the articles can be 16 read to the jury. 17 Government Exhibit 2671. This appears to be a 18 translation in handwriting of an October 26th, 1998 Al Hayat 19 article. It is plainly relevant to the knowledge, intent and 20 state of mind of Ms. Stewart, and that relevance is not 21 outweighed by any danger of unfair prejudice. It will be 22 subject to the limiting instruction, "This exhibit is not 23 received for the truth of any of the matters asserted in the 24 exhibit, but solely with respect to the knowledge, intent and 25 state of mind of Ms. Stewart." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6346 49TJSAT4 1 I believe that that covers all of the search exhibits. 2 MR. TIGAR: Yes, your Honor, it does. 3 May I make a few very brief comments, not to argue 4 with your Honor, but to note -- 5 THE COURT: Sure. 6 MR. TIGAR: -- first, the reference to the articles 7 being clipped. We noted that many of them came from a clipping 8 service; and, thus, it can't be said -- and we proffer to the 9 court -- Ms. Stewart didn't clip them. 10 Then your Honor mentioned some are underlined. I 11 proffer to the court Ms. Stewart doesn't underline articles, 12 that somebody else did that. 13 Your Honor then said that we did not cite any 14 authority for our Rule 106 positions, and we did not cite a 15 case, your Honor, but it had been our view that, as Justice 16 Thomas said to the court in Connecticut National Bank versus 17 San Germain, when Congress writes a text, it means what it says 18 in the text and the text means what the Congress said, and 19 these are statutes, after all, even though drafted by the rules 20 committee. 21 So it seems to us as throughout the case that the text 22 and Advisory Committee notes to 106, both of which we have 23 repeatedly had given to resolve questions was enough, and that 24 was our authority. 25 More broadly, your Honor -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6347 49TJSAT4 1 THE COURT: I -- 2 MR. TIGAR: I am sorry, your Honor. I didn't mean 3 to -- 4 THE COURT: My comment with respect to the lack of 5 authority went to the court's analysis of the cases that have 6 interpreted Rule 106 and the rule of completeness, and I've set 7 out some of those cases. The rule normally arises in the 8 context of incomplete quotations from an individual document, 9 although the rule itself does also talk about other documents. 10 The parties didn't give me any cases which analyzed 11 other documents, but, in any event, I read with great care each 12 of the documents proffered by the defendant, to ask under all 13 of the standards, the rule of completeness and Rule 106, 14 whether those articles under those standards should be 15 considered at the same time. 16 What I was saying is, there was no authority proffered 17 to me that suggested to me that the answer to that question was 18 other than I've explained. 19 MR. TIGAR: What I was saying, I wasn't meaning to 20 quibble with the court or to suggest that the court hadn't 21 reviewed these things. I wanted to make two what I think are 22 fundamental points about this. 23 The first is that Rule 106 advisory committee notes 24 speak of content. We pointed out to the court that these 25 articles that we submitted under Rule 106 were contained in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6348 49TJSAT4 1 very same Redwells or Manila pockets as the newspaper articles 2 selected by the government and that all of these Redwells and 3 Manila pockets were in files that indicated that they were part 4 of cases on which Ms. Stewart was working and that all of those 5 cases were ones that involved either political defendants or 6 asylum applicants, in which the issue always is -- or almost 7 always is -- how bad a person this is that she's representing. 8 What are the consequences of sending that person back 9 to their country of origin? What are the circumstances there? 10 As some of the documents that are in evidence reflect, 11 such as the State Department country reports, whose fault is it 12 that there's violence back in that country to which one seeks 13 to return this person? 14 Now, when we talk of context, therefor, even without 15 getting to the concept of a case such as an asylum case as a 16 whole story, as a holistic entity which is some modern thing 17 that people write about in books and so on, the context is what 18 we have suggested, that is to say, it is the whole case. 19 We suggest to select a part of is, it seems to us, 20 misleading. I think on reflection, we have what is State 21 Department country letters, which blend those things. It 22 regards it all as a part of the same ball of wax. This person 23 we don't know very much about, this violence going on caused by 24 extremist groups, this is the problem with the Egyptian 25 government. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6349 49TJSAT4 1 The more fundamental thing, and I know that the court 2 may disagree with this formulation, but this completeness 3 argument and this knowledge, intent and state of mind argument 4 arises in the context of a practicing lawyer, who, based on the 5 government's selection of files, specializes in the 6 representation of people charged with political offenses. 7 I don't mean to characterize it in that way, except 8 the political-offense exception is a well recognized one in 9 international law. Asylum cases deal with it. There is a 10 principle that people can't be sent back to their countries if 11 they face political persecution. It is a doctrine, a 12 well-known doctrine, a doctrine known -- and this is her 13 specialty, and so when she has files -- she, being presumed 14 innocent -- when she has files, she possesses them in a 15 different capacity than a citizen who is free to go to the 16 bookstore and to select this piece of paper, that piece of 17 paper and so on, this book, that book or whatever. 18 As a lawyer, I am required to collect things that may 19 very well suggest that the people I represent or the kind of 20 people I represent are very bad, and this -- I actually knew 21 about a case, I met a lawyer in South Africa a number of years 22 ago that was arrested by having a book by Nelson Mandela in his 23 car. He was acquitted by saying no, no, I represent terrorists 24 like this; and, therefore, I need to read the book to know what 25 they're like. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6350 49TJSAT4 1 That struck me as gee, that is interesting. I use 2 trial by newspaper or trial by library, which are rhetorical 3 devices, but I do want to suggest to the court, and I guess I 4 didn't do it as clearly as I should have in the letter, that 5 this knowledge, intent and state of mind statement uttered in 6 the abstract, as the government has, is particularly poignant 7 and difficult for us to be sure. When our case comes, we'll 8 have a chance to talk about what we think knowledge, intent and 9 state of mind means. 10 Of course, for a lawyer, that poses special problems 11 because lawyers operate based on a whole body of knowledge and 12 insight and so on, but talking about these exhibits, that 13 notion, how lawyers collect things is different than other 14 people do and the impact that can have on the right to counsel 15 and how we practice is something of particular concern to me 16 regardless of how I expressed it adequately in the papers 17 before. 18 THE COURT: All right. Anything else? 19 Well, the parties want an opportunity to talk, so I'll 20 take another break. In terms of timing, Mr. Ruhnke, you wanted 21 to talk about timing, and you also should report to me on the 22 search exhibits with respect to Mr. Yousry. 23 MR. RUHNKE: Yes, your Honor. We are meeting with Mr. 24 Morvillo on that issue after court today. We'll perhaps report 25 to you shortly on that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6351 49TJSAT4 1 (Recess) 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 6352 49TMSAT5 1 THE COURT: Are the parties ready? 2 MR. RUHNKE: Yes. 3 THE COURT: Please have a seat. 4 First, the government gave my clerks a note to ask to 5 check if the judge's copy of 2700TH has the original sticker on 6 it. 7 First, as I have said before, if the parties have 8 scheduling or technical issues, take it up with Mr. Fletcher, 9 not with my law clerks. 10 Second, I have a copy of 2700TH with a sticker on it, 11 what appears to be a sticker on it. It also has all of my 12 yellow Post-its when I read in detail 2700TH. If that's the 13 original, I can take off my yellow stickets and return it. Is 14 this the only -- 15 MR. BARKOW: No, your Honor. If I could just explain. 16 I think we can do without it, but this is why we were trying to 17 find if the original had accidentally been produced rather than 18 kept by us. The shading system, as the Court probably sees in 19 its copy, is quite distinct. You can tell the difference. It 20 is not as distinct in the copies because any time -- we used a 21 color copier. Any time you run it through the copy machine -- 22 MR. PAUL: We may have the originals in our binder. 23 2700TH with the original sticker is in our binder. 24 MR. BARKOW: That was the only reason we were asking, 25 so when we present it to the jury it is at clear as possible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6353 49TMSAT5 1 I think we can trade. 2 MR. PAUL: We will trade. 3 MR. RUHNKE: Your Honor, on the issue of timing, I 4 think we have an agreement with the government, but I will 5 stand ready to be corrected. 6 The government apparently is confident they will be 7 resting their case on Tuesday. We are asking you to schedule 8 Rule 29 motions at some point following the government resting 9 on Tuesday and that the defense be permitted to start its case 10 on the following Tuesday because the Monday is a holiday, 11 Columbus Day, October 11. So that is our application. I 12 believe the government consents to it, but I'm not a hundred 13 percent certain. 14 THE COURT: I'm not clear what your schedule is. The 15 government expects to complete its case on Tuesday and usually 16 Rule 29 motions are made at the conclusion of government's 17 case. What did you mean by scheduling Rule 29 motions? 18 MR. RUHNKE: It is my understanding that at least one 19 of the defendants, Ms. Stewart, wishes to file a written Rule 20 29 memorandum and I think wants 24 hours from the time the 21 government actually concludes its evidence to file that. In my 22 conversation with the government they indicate that they do not 23 wish to file a written response, but I will not speak for them. 24 That's what I understand. As soon as they receive that, they 25 are prepared to argue the Rule 29 motion. That's my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6354 49TMSAT5 1 understanding of the dynamics of that, and that however that 2 gets scheduled out during the rest of that week, the defense 3 starts the following Tuesday. 4 Mr. Tigar wants to address that briefly, too. 5 MR. TIGAR: Your Honor, the theory is that a week gap 6 between the end of the government's case and the beginning of 7 the defense case -- and according to an agreement amongst the 8 parties, Ms. Stewart will put on her case first. We will be 9 filing later today or very first thing tomorrow morning a 10 substantial motion, the disposition of which materially affects 11 the shape of our defense. And there are a number of 12 imponderables about that. 13 Also, reviewing the documents, the many documents and 14 preparing and filing that memorandum, has taken some time. It 15 just seems to us, your Honor, that in order to be able to make 16 the decisions we need to make and to present our defense 17 efficiently that that one-week period is essential to us. And 18 I can say to the Court that no matter how your Honor rules on 19 the various requests that we have made, we want to present our 20 defense in a way that is most efficient, that comes in cleanly, 21 crisply, doesn't waste the jurors' time, and we are able to do 22 that, it seems to us, only if we first have a clear picture of 23 what we face. 24 Moreover, at Rule 29 time, even if your Honor denies 25 the Rule 29s entirely, there are certain questions that your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6355 49TMSAT5 1 Honor would resolve in the course of such a ruling that define 2 for us the case we are to meet in a way that your ruling on the 3 indictment sufficiency did not. 4 For example, your Honor -- if the point isn't obvious, 5 I'll try to make it obvious. In Count 2 of the superseding 6 indictment, the defendants are charged with a conspiracy to 7 kill or kidnap in a, singular, foreign country. And 8 Ms. Stewart is charged in Count 4 and 5 in a certain 9 relationship to that. We have discussed that extensively. 10 In ruling on the sufficiency of the indictment the 11 Court held that the government did not have to specify a 12 foreign country, nor did it have to specify with any 13 particularity the persons to be killed or kidnapped, and also 14 the Court denied a motion for bill of particulars while making 15 certain holdings about the government's representations as 16 constituting such a bill. 17 However, at Rule 29 time, we would expect to have 18 clarity as to which country because if at that point -- I'm not 19 arguing this point now, but it seems to me fairly obvious. The 20 government said, well, really it was a lot of countries, or we 21 don't have to tell. That would then indeed be a not simply a 22 variance, but a material amendment of the grand jury's 23 indictment as to which no harmless error argument could ever 24 save them. 25 I don't have the cases at hand and I'm not, as I say, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6356 49TMSAT5 1 trying to argue that point. I'm saying, Rule 29 time is a time 2 when disclosures are made and rulings are made and things are 3 collected that materially affect the case we have to meet. And 4 that would also be true with respect to some of the identities 5 of the coconspirators and for what purposes. 6 So that's a long way of saying that the time we have 7 sought is as important to us, if not more so, than the time 8 that the government sought at an earlier procedural hour and 9 was given. 10 THE COURT: What time was that? 11 MR. TIGAR: The three weeks, your Honor. 12 THE COURT: I thought that was a mutual request. 13 MR. TIGAR: It was a request -- it was a mutual 14 request in the sense, your Honor, that we consented to it. I 15 recall consenting to it, but it was done so that what had to be 16 presented in the -- I'm not trying to back away from our 17 consent. But it was done so that what had to be presented in 18 the government's case could be assembled and presented 19 efficiently in a way that respected the jurors' time. 20 Again, I'm not trying to get into an argument about 21 who said what, but it was my perception that that was done in 22 the interest of jury efficiency. I'm saying as the lawyer that 23 agreed to go first here, this is the time that we need to be 24 effective. 25 THE COURT: You know, it is completely up to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6357 49TMSAT5 1 defendants, advised by counsel, whether they choose to put on a 2 case or not and that's completely up to the defendant, and the 3 Court doesn't get involved in that at all. 4 Could the parties give me some estimate? Because I've 5 heard from the parties vastly different estimates with respect 6 to the possible length of the trial. I've heard -- and all of 7 this is varying estimates which you have all given to me at 8 various times, because I attempt to keep the jury advised. So, 9 for example, I have told them, you know, that with respect to 10 the break over Thanksgiving I've given them the dates, even 11 though we don't know whether we will still be sitting at that 12 time. 13 MR. TIGAR: Between four and six trial days, your 14 Honor, for Ms. Stewart. And the difference between four and 15 six depends on how your Honor rules. 16 THE COURT: It would be more useful to me, by the way, 17 if I got a global estimate because I don't want to put any, any 18 commitments on any of the defendants at all. So are we talking 19 about December 21 or November 21, end of October? 20 MR. RUHNKE: Your Honor, I think we have a consensus 21 that the outside of the defense would be about four weeks. 22 This would be all three defendants, which takes us to 23 essentially mid November if we start October 11, 12. It takes 24 us to November 12, roughly mid November. And it might be 25 shorter than that. I don't think it will be longer. All three SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6358 49TMSAT5 1 defendants' counsel have said their clients will testify. 2 Speaking for Mr. Yousry, that still goes. How long the 3 government cross-examines each defendant is something that we 4 can't control. But even building in a lengthy 5 cross-examination, just building in a lengthy cross-examination 6 of each defendant, I think four weeks is a generous estimate 7 for how much the defense is going to take. There are some 8 holidays in there, Veteran's Day is in there. Is Election Day 9 a holiday? 10 THE COURT: Yes. 11 MR. RUHNKE: Election Day is in there. Building in 12 those holidays, continuing on a four-day-a-week schedule, I 13 think four weeks is a generous estimate for the defense. 14 THE COURT: Mr. Tigar, you said that you are going to 15 be filing a motion. Is that a motion for a response to the 16 discovery issues? 17 MR. TIGAR: Your Honor, it is a response to the 18 ongoing discovery authentication electronic issues. We have 19 styled it a motion because it requests relief based on the 20 production. We presented to the Court this morning an 21 application to file the memorandum in support of the motion 22 under seal. The motion itself doesn't contain anything, but 23 obviously the memorandum refers to a lot of that material that 24 was produced under protective order. And, therefore, I think 25 that's noncontroversial. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6359 49TMSAT5 1 THE COURT: You can file it under seal. You will be 2 filing that today? 3 MR. TIGAR: We had authorization to file it first 4 thing tomorrow morning. 5 THE COURT: That's right. 6 MR. TIGAR: It is being edited as we speak. I 7 reviewed it last night and Ms. Shellow-Lavine is reviewing it 8 and making it final. 9 MS. BAKER: Your Honor, the government does not share 10 Mr. Tigar's views of the functions of a Rule 29 motion and I'll 11 elaborate on that in a minute. 12 But in light, in part, of our differing views of the 13 function of a Rule 29 motion, and in light of the fact that 14 this case involved a lengthy pretrial period, much longer than 15 in most cases, and that the government's case has been lengthy, 16 and that in the middle of the government's case a three-week 17 adjournment was required because the defense requested, under 18 the rule of completeness, that the government present evidence 19 in its case that the government trial team had never seen up to 20 that moment during the trial, because of that, there was a 21 three-week adjournment already once during this trial. 22 In light of the length of this trial and the length of 23 time that the jury has had to sit in this case, the government 24 believes that an additional adjournment is not appropriate and 25 that the defense case should follow on the government's case; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6360 49TMSAT5 1 but that if the Court disagrees and believes that an 2 adjournment really is required, that that adjournment should be 3 only until the Tuesday after whatever this upcoming holiday 4 is -- I believe it is Columbus Day -- regardless of whether the 5 government rests on Monday or Tuesday, which we expect to do if 6 Mr. Tigar does not obtain the right to recall witnesses in our 7 case as a result of his motion which, obviously we have not 8 seen yet and can't really speak to it in any meaningful way. 9 On the other hand, if his motion results in a ruling 10 that a witness or witnesses need to be recalled, then perhaps 11 the government will not be able to rest on Monday or Tuesday. 12 But nonetheless we would submit that if there is to be any 13 adjournment at all, it should not be beyond that Monday 14 Columbus Day holiday such that the defense case should begin on 15 the Tuesday after the holiday. 16 As to Mr. Tigar's preshadowing of his Rule 29 motion, 17 it is the government's view that the only relevant question or 18 the only legal question for the Court to address on a Rule 29 19 motion is whether the government has presented sufficient 20 evidence from which a reasonable jury could find proof beyond a 21 reasonable doubt of each of the essential elements of the 22 charges, and that that motion is not an occasion for the Court 23 to address other legal issues that the defense might find 24 helpful or to revisit issues that the Court has already ruled 25 on. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6361 49TMSAT5 1 And specifically the issue that Mr. Tigar raises about 2 Count 2 and which one foreign country is referred to in Count 3 2, this was briefed already in the pretrial context. And the 4 wording of the charge, the Count 2 in the indictment, is based 5 upon the wording of the title of Section 956, which is 6 entitled: Conspiracy to kill, kidnap, maim, or injure persons 7 or damage property "in a foreign country." But the wording of 8 the statute itself says that the act or the relevant conduct -- 9 sorry. I'm having difficulty reading it as I'm standing 10 here -- must occur at "any place outside the United States." 11 And we already briefed in the pretrial motion context 12 the fact -- and the Court ruled in accordance with the 13 government's arguments on this issue -- that the government is 14 not required to specify a foreign country. The law just does 15 not require it. And so the government need not specify any one 16 foreign country or any more than one foreign countries, plural. 17 We did not have to do that in the indictment and, therefore, it 18 is not an element of the offense for the foreign country to be 19 specified. We wouldn't expect the Court in instructing the 20 jury as to what they have to find are the elements of that 21 offense to instruct the jury as to any particular country 22 because that's not what the law requires, and so we don't see 23 the kinds of issues that Mr. Tigar sees. 24 He also mentioned, for example, that somehow he 25 expects the Rule 29 motions to result in identification of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6362 49TMSAT5 1 which persons are coconspirators in which conspiracies and for 2 which purposes. Again, those are not elements of the offense 3 and are not properly addressed in the context of a Rule 29 4 motion. 5 So if the defense wishes to file a written motion, 6 certainly, the Court can permit them to do that on a schedule 7 the Court deems appropriate. The government would request to 8 respond orally to the motion or motions at an appropriate point 9 in time after they are filed. And based on that scheduling or 10 plan and for all of the other reasons that I have already 11 mentioned, again, the government asks that there not be an 12 adjournment, or if there is to be one that it extend not past 13 the Monday holiday, regardless of whether the government ends 14 up resting on Tuesday -- Monday or Tuesday or at some point 15 later next week. 16 THE COURT: I believe you're talking about the same 17 date, which is the Tuesday of the following week. 18 MS. BAKER: Your Honor, perhaps Mr. Tigar might wish 19 to clarify, but Mr. Ruhnke specifically referred to starting on 20 Tuesday, the defense case on that Tuesday after the holiday. 21 But when he did that he prefaced that by saying that the 22 government expects to rest by Tuesday, which we do if witnesses 23 are not going to have to be recalled in our case and subjected 24 to lengthy cross-examination. 25 In contrast to the way Mr. Ruhnke phrased it, when SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6363 49TMSAT5 1 Mr. Tigar stood up, Mr. Tigar was careful to repeatedly say one 2 week and not to refer to the specific day, which is why I 3 framed my response by saying that even if we do -- even if we 4 are essentially forced to rest later in the week that we still 5 believe that if there is to be any adjournment at all, it 6 should not be beyond Monday, the holiday. 7 THE COURT: Do you want an opportunity to respond to 8 the motion to be filed tomorrow first thing, if not later 9 today? 10 MS. BAKER: Your Honor, without seeing the motion or 11 even knowing in any specific way the variety of forms of relief 12 that it seeks, it is difficult for me to commit. The 13 government would like to respond as quickly as possible because 14 we would like to continue on this pace and hope to persuade the 15 Court not to grant any relief, including not allow the recall 16 of witnesses in the government's case, but rather to say if 17 there is any appropriate cross-examination or examination based 18 on the documents that it be done as direct examination in the 19 defense case. And we would hope to try to persuade the Court 20 to that end quickly enough so we could go forward with our 21 current plan to finish presenting our case and rest on Monday 22 or Tuesday. But it is difficult for me to commit to that 23 without really knowing what's in the motion. 24 What I would propose to the Court at this point is 25 that if I am served with the motion later today or first thing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6364 49TMSAT5 1 tomorrow morning before the court session starts, that by no 2 later than the end of the lunch break and maybe sooner, but I 3 might need to wait until the lunch break to be able to read it 4 and think about it; by no later than the end of the lunch break 5 that I would let the Court know a response time. I would hope 6 to be able to respond without making a written submission. 7 And if I believe that I can respond without making a 8 written submission, my request to the Court would be that if 9 the Court has any time to see us on Friday, to see us on Friday 10 for me to address the motion orally so that the Court could 11 then rule as quickly as possible. But, again, I don't want to 12 commit to that until I have seen the motion. 13 MR. RUHNKE: Practically speaking, the Friday proposal 14 that Ms. Baker may or may not be making would cause enormous 15 difficulty, I think, for almost everybody gearing up for 16 appointments and other plans having to do with the defense in 17 this case. 18 THE COURT: I also would like to keep the case moving. 19 And the thought of listening to you at some point on Friday 20 with respect to the motion was -- whether I have to do it at 21 lunchtime or 9:00 in the morning or whatever was in fact one of 22 the thoughts that was also in my mind, to be able to listen to 23 the parties on that application. So you all can talk among 24 yourselves with respect to that. I know you have to talk about 25 some other things. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6365 49TMSAT5 1 I'll consider the various applications. The defense 2 case, if there is going to be a defense case -- and that's 3 completely up to the defendant, advised by counsel -- would 4 plainly begin no later than the Tuesday after the holiday. I 5 am not going to build in an additional one week and I don't 6 think that the defendants were really asking for that. 7 The Rule 29 motion should be made promptly at the 8 conclusion of the government's case. If anyone wants to give 9 me a written memo, they are welcome to do that. And the 10 government can consider whether it wishes to respond in writing 11 or orally, and I would hear you promptly after that. 12 I can't set the specific schedule, but it would seem 13 that the only thing that we are talking about is whether we sat 14 for jury days on Wednesday and Thursday of next week. If I 15 have to listen to arguments -- I would obviously listen to the 16 arguments on the Rule 29, so that would have to be scheduled 17 after the conclusion of the government's case in any event. So 18 we may not even be talking about two full days. 19 MR. RUHNKE: Your Honor, in that calculus your Honor 20 should build in that we are scheduled to break at 1 p.m. on 21 that Thursday, on the 7th, for a juror, and then for Judge 22 Karas's swearing in. Because of a juror's commitment, we were 23 breaking at 1:00 on Thursday. 24 MR. TIGAR: Your Honor, for our own purposes, I know 25 that Mr. Ruhnke said that Friday for many is chock-a-block with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6366 49TMSAT5 1 witnesses who need to be seen now and so on. How should we 2 communicate our scheduling difficulties, to whom? 3 THE COURT: Why don't you all talk about it. I will 4 put over anything else I have on Friday to another time to be 5 able to accommodate all of you from early in the morning to 6 late in the day, including the lunchtime. So talk among 7 yourselves, and I would think we are talking about perhaps an 8 hour and you can get back to me tomorrow morning. 9 Is there anything else that I can do now? 10 I'll see you at 9:15 tomorrow morning. 11 (Adjourned to Thursday, September 30, 2004 at 9:15 12 a.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6367 1 INDEX OF EXAMINATION 2 Examination of: Page 3 PETER F. GRASSO 4 Direct By Mr. Morvillo . . . . . . . . . . . 6280 5 Cross By Mr. Ruhnke . . . . . . . . . . . . 6308 6 Cross By Mr. Tigar . . . . . . . . . . . . . 6310 7 Redirect By Mr. Morvillo . . . . . . . . . . 6326 8 Recross By Mr. Tigar . . . . . . . . . . . . 6329 9 GOVERNMENT EXHIBITS 10 Exhibit No. Received 11 1763 . . . . . . . . . . . . . . . . . . 6278 12 1716 TX . . . . . . . . . . . . . . . . . 6278 13 2200 S . . . . . . . . . . . . . . . . . 6279 14 2201, 2201 A and 2201 AL . . . . . . . . 6287 15 2201 B and 2201 BL . . . . . . . . . . . 6293 16 2202, 2202 A, 2202 B, 2202 C, 2202 AL, 2202 B6296d 2202 CL 17 2203, 2203A, and 2203AL . . . . . . . . . 6304 18 2204, 2204A, and 2204AL . . . . . . . . . 6306 19 2205, 2205A, and 2205AL . . . . . . . . . 6307 20 DEFENDANT EXHIBITS 21 Exhibit No. Received 22 LS50 . . . . . . . . . . . . . . . . . . 6329 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300