6596 4A4MSAT1 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 October 4, 2004 8 9:15 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 6597 4A4MSAT1 1 (Trial resumed) 2 (In open court; jury not present) 3 MR. TIGAR: Good morning, your Honor. 4 THE COURT: Good morning. 5 MR. TIGAR: The government had filed a letter 6 concerning the cross-examination of Ms. Soliman and we would 7 like to address that. 8 Second, your Honor, we have received your Honor's 9 opinion of last evening and would like to make a response to 10 that for our own planning purposes for our case. 11 Third, we had received Mr. Morvillo's letter about Mr. 12 Fitzgerald and have, since my very brief and quick response, 13 found some case authority to present to your Honor. And I 14 would like to do that now, if that meets with the Court's 15 approval. 16 THE COURT: Sure. 17 MR. TIGAR: Does your Honor have a preference about 18 the order? 19 THE COURT: Actually, that order is fine. I was going 20 to begin with the issue with respect to Ms. Soliman in any 21 event because I wanted to deal with any issues that were 22 related to the imminent presentation of evidence this morning. 23 MR. TIGAR: May I use the lecturn and the Elmo, your 24 Honor, to show some exhibits? 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6598 4A4MSAT1 1 MR. TIGAR: The Court will recall that Ms. Soliman was 2 called as a witness and she is going to talk about translating 3 the exhibits that are on 1320L and this is the document on 4 1320. This is the document 1320L that reflects what's on 5 there. The controversy appears to arise with respect to a 6 column called last modified. And that's on 1320L. 7 Now, the government has produced to us and I have 8 marked as LS53 -- I'd like to show it to the Court. This is 9 the document that was attached to the government's letter and, 10 as the Court can see, there is some handwriting here that 11 apparently is Ms. Soliman's. And according to the government 12 she was furnished this document or it was prepared by Ms. Baker 13 as a form on which she could make her notes. 14 Her notes of the work that she did, in our view, are 15 clearly admissible. She is an expert. This represents an 16 initial draft towards a conclusion about which she was 17 testifying. And also these things that are written on here are 18 indeed material to the issues that are being presented, which 19 is, what's on these calls, is anything missing, how are they 20 broken up, what can you hear when you listen to them? After 21 all, the calls as to much of the material are in Arabic and one 22 would need a translator in order to understand that. 23 Now, the government says that Ms. Baker typed this. I 24 have no reason to doubt that. Last modified. The question 25 then would be, where did she get it? Well, it is clear to us SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6599 4A4MSAT1 1 that she got it, as the government says, from the material 2 produced to the defense in discovery or from something 3 substantially identical to that material. And here is what I 4 have marked as LS51. I am going to ask to be made a court's 5 exhibit. This is a screen shot, your Honor, of a file called 6 .VOC dump 3_1067448488_2 that I have marked as LS51, which has 7 a court's exhibit. This is a screen shot of the directory of 8 what was furnished to us in discovery. 9 THE COURT: Why do I need to mark it as a court 10 exhibit? You have identified it as LLS51 for identification 11 and the parties should retain their exhibits. 12 MR. TIGAR: I'm sorry. That was a solipsism on my 13 part, your Honor. What I meant, your Honor, I want to offer it 14 in evidence, but not for the jury. I want it to be part of the 15 record, your Honor, but not for the jury. And I've given it an 16 LS exhibit number. 17 On this page of the document that I have identified 18 here -- it is hard to see on the Elmo, but we have highlighted 19 the five file names that are involved on the Soliman exhibit 20 that I had marked as LS53 that we had intended to use to 21 cross-examine. And the Court can see the date modified on 22 these. I can zoom in a little bit. And that's 10/28 at 2003. 23 The reason it is helpful is that this screen shot 24 shows that the copying process was going on over a period of 25 time and it does appear indeed that Ms. Soliman had, going back SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6600 4A4MSAT1 1 to LS53, the same five files, these top five here as are on 2 that .VOC dump that was provided to us. So it is true that 3 what she was working with was a copy, an exact copy using the 4 same last modified date as to what was furnished to us in 5 discovery. 6 In other words, whoever did that had the capacity to 7 make copies of files and have the last modified date and time 8 be exactly the same. That is, Ms. Soliman could not have used 9 the same CD we were using. She had to be using a different one 10 because she was never in our office. 11 The question becomes -- she probably can't answer 12 this, but it becomes something that is relevant just to ask 13 her. Is this the sheet that you were given as a basis on which 14 you were to do your translation? That's the only question I 15 want to ask. Is this the sheet that you were given by the 16 government as a basis for doing your translations, or on which 17 to make notes? Did you make some notes? What do the notes 18 say? What do they mean? And I think I know what some of them 19 are because we have listened to the recordings, this 20 unidentified male, what do you mean dialing number and so on. 21 It is going to be helpful to the jury to get some explanation 22 of this. 23 That's all this is. This is a document furnished to 24 her by the government. They are exactly right that that's what 25 it was. And I am not sure what adverse inference they are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6601 4A4MSAT1 1 trying to head off here or what problem there would be about 2 cross-examining the witness about that and then putting in 3 evidence LS53. That's the whole cross-examination, your Honor. 4 If the government objects to my doing that cross-examination in 5 that form, then -- and says there is some harm that might come 6 from my doing it, then I will be happy to rebut that. That's 7 all that I want to do. 8 THE COURT: Mr. Barkow. 9 MR. BARKOW: Your Honor, my letter made clear what our 10 objection is and that is to Mr. Tigar displaying or stating to 11 the jury the typewritten material without an adequate 12 foundation that it is in fact something that Ms. Soliman knows 13 about, wrote or has any knowledge, personal knowledge 14 whatsoever about what that information is. Otherwise, if she 15 does not, all that's happening is that a document is being 16 placed before the jury and leaving open all sorts of possible 17 inferences. 18 And the one that we are obviously concerned about is 19 that a discovery diskette -- information from a discovery 20 diskette will be put before the jury and create sow confusion 21 because Mr. Tigar has, as part of the defense, tried to create 22 an issue about last modified dates. That's the reason why we 23 don't want this document displayed to the jury until and unless 24 adequate foundation is laid, which we submit can never happen 25 because Ms. Soliman didn't generate it. And all that happened SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6602 4A4MSAT1 1 was, she was asked to listen to these calls and to basically 2 tell us what was on them. 3 Secondly, Ms. Soliman testified in court after having 4 had a recording played for her in court. She didn't harken 5 back to what she did before. So the only 3500 material or the 6 only thing that would be relevant to her testimony, perhaps, is 7 whether she listened to them before; and, if so, whether she 8 drew conclusions about them. That's the handwritten portion, 9 not the typewritten portion, which was simply something 10 generated by Ms. Baker off of the discovery disk. And 11 Ms. Baker is actually going to rise, if that's okay with the 12 Court, to explain the source of that information because she is 13 the one that generated it. 14 I think the government's concern is clear here; that 15 is, that the jury can be confused by putting something before 16 it -- that is, the typewritten portion -- that is wholly 17 irrelevant to the case because it relates to discovery, wholly 18 irrelevant to assist Soliman's testimony because she doesn't 19 know about it, we proffer to the Court, and she only testified 20 to two of the files on the DVD. That's the basis of our 21 application. If it turns out that we submit it did not happen, 22 she generated this document. If Mr. Tigar can -- perhaps the 23 equation will change. Until and unless an adequate foundation 24 is laid, this document, which is totally irrelevant to the 25 case, and her testimony, the typewritten portion, that is, not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6603 4A4MSAT1 1 be shown or referred to to the jury. 2 If Ms. Baker can explain the source of the typewritten 3 portion. 4 MS. BAKER: As I understood Mr. Tigar's argument and 5 the relevance claim that he was trying to make, which the 6 government submits fails anyway, he was assuming that the piece 7 of paper on which Ms. Soliman wrote her notes was a listing of 8 the entire contents of a disk that was somehow created by 9 someone from the discovery disk without the last modified dates 10 of the files changing, and that is not correct. That document, 11 the printed or typewritten portion of it was created by me from 12 the discovery disk directly. 13 And when I say discovery disk, what I mean is, a DVD 14 with a very large number of .VOC files that was given to 15 Ms. Stewart's lawyers as part of the pretrial discovery and the 16 disk had that name that was at the top of that screen shot that 17 Mr. Tigar had on the screen a few minutes ago. And the disk, 18 the DVD has on it hundreds of .VOC files, some very large 19 number. 20 The reason why only the five of them appear on that 21 piece of paper is because those five were the only ones that 22 were relevant for what the government was doing at the moment. 23 And the government's original thinking, had Agent Kerns not 24 been able to quickly burn a new DVD with just the relevant 25 files on it, the government actually considered offering the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6604 4A4MSAT1 1 discovery DVD into evidence, but not the entire contents of the 2 DVD; just the relevant files on the DVD, which is why I created 3 that document listing just the relevant files. 4 Just for the Court's information, the way it was 5 created, I had the discovery DVD in the DVD drive of my 6 computer, and I opened WordPerfect and there is a function in 7 WordPerfect, print file list. And it then gives you choices on 8 whether you want to print to paper or print to a related 9 software application called Word Pad. And I chose word pad. 10 And from the discovery DVD into Word Pad the entire list of all 11 of the hundreds of .VOC files on that DVD was copied. And it 12 was a list that looked very similar to the document that 13 Mr. Tigar put on the Elmo a few minutes ago. 14 From that list of the hundreds of .VOC files I then 15 copied into a separate WordPerfect document just the relevant 16 files. There isn't any other DVD. It is the discovery DVD 17 itself which Mr. Tigar has had for however many months or a 18 year and a fraction. And so his premise about the creation of 19 the document is wrong. 20 Moreover, Ms. Soliman's testimony isn't ultimately 21 based on the discovery DVD. It is based on 1320, which is the 22 newly created DVD which was played for her in the courtroom and 23 that is what she testified about. The government respectfully 24 submits that there is no relevance to the information on that 25 document and that it can serve no purpose but to create SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6605 4A4MSAT1 1 confusion. 2 MR. TIGAR: Your Honor, with respect the government's 3 answer, creates more difficulty or confusion I think than it 4 solves, at some point in time, which I will establish with this 5 witness if permitted, she was given this piece of paper that we 6 have marked as a Stewart exhibit. And it is LS53. That's this 7 one that Ms. Baker just described created. She was also given 8 some files to listen to. 9 Now, apparently, either -- the files she was given are 10 what is now 1320. She took what is now 1320 and listened to it 11 and just used this to make notes. Or she was given some other 12 thing in which to make the translation. I don't know. I will 13 ask her. But the fact is that she was given this piece of 14 paper on which she was told to make notes or she was given the 15 opportunity to make notes. Again, I don't know because I have 16 not talked to her. This is rather similar to a form that is, 17 if you have an employee who does a regular job, you give them a 18 form on which they can make their notes or findings or whatever 19 so that when the reviewing person -- in this case, the lawyers, 20 does it, they will know what everybody is talking about. 21 This is an expert witness, your Honor. And I 22 analogize this to bench notes made by a forensic chemist, for 23 example, in a process because you're supposed to keep track as 24 an expert of what you do at each step. And that's all I want 25 to do here with the cross-examination of this witness. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6606 4A4MSAT1 1 What the government is really worried about is that 2 there is a file last modified date and it is not the last 3 modified date that appears on Government Exhibit 1320L. And as 4 Agent Kerns said when he testified, I have repeatedly told you 5 that the modified date changes when I copy the files across 6 from a UNIX platform to a windows platform. Well, I don't have 7 to believe that. The jury doesn't have to believe that. 8 Mr. Grasso has in his tool kit a device that would make sure as 9 to whether something happened in that process or not. And if 10 at the end of the day the jury looks at this document and draws 11 that inference, there are plenty of documents in this record 12 that show that the modified date on these files is well after 13 the date on which the conversations were said to have been 14 recorded. 15 And I respectfully submit that's a permissible 16 inference if the jurors choose to draw it because the 17 government has done nothing; I repeat, nothing; I repeat, 18 nothing in this case to establish the internal integrity of the 19 FBI system to ensure that modification dates are not changed, 20 which they are not in the ordinary course of simple file 21 copying as files are moved across different platforms. That, 22 as I say, is not something I intend to ask Ms. Soliman about 23 because she doesn't know. I want to find out, Ms. Soliman, 24 what disk did you listen to when you were attempting to do 25 these translations? Were you given this form as a basis for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6607 4A4MSAT1 1 it? And leave it at that. 2 MR. BARKOW: Your Honor, I would only briefly say that 3 this issue arose before in the context, I believe, of our 4 motion to preclude inquiry into the pretrial discovery process. 5 And all this is is an effort to bring before the jury 6 information relating to the pretrial discovery process because 7 that's what this printout shows. And if Ms. Soliman had 8 written on a document, written on the newspaper or something 9 like that, then the preprinted information on the newspaper 10 still wouldn't have been relevant to the case. Perhaps, what 11 she wrote would have been and what we are targeting here is the 12 typewritten material which is information produced, as 13 Ms. Baker said, to put on this document, but information 14 derived from the discovery process. 15 THE COURT: The document can be marked. It shouldn't 16 be shown to the jury unless the witness testifies that she 17 created or has personal knowledge of what the last modified 18 column means on the particular document, personal knowledge. 19 You can make another copy of the document, redacting the last 20 modified column, leaving all of her handwritten notes. And 21 with that copy of the document, you certainly can cross-examine 22 her about any comments that she previously made with respect to 23 what it was that she listened to and how that may affect her 24 testimony. But if the document were admitted and there was no 25 basis in her testimony for the last modified column, then it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6608 4A4MSAT1 1 will be redacted. Because the relevance of that column is 2 outweighed by the dangers and unfair confusion. 3 MR. TIGAR: Your Honor, I will give a copy of this 4 document to a member of our team and take a couple of minutes 5 to get a copy made with a redaction. 6 Thank you. The second issue is with respect to your 7 Honor's opinion which we received. Your Honor, we would like 8 to call Mr. Elliot as the first witness in our case and examine 9 him as an adverse witness. And in that connection we will 10 produce to the Court and the government tomorrow a book of 11 every exhibit that we would intend to use in that process. And 12 in that way we can have a meaningful discussion with the 13 government about which of those exhibits it would consent to 14 the admission of and the use and which would require some 15 action by the Court. 16 I would also like, because the Court had told the 17 government that Mr. Elliot might be called in some form in 18 somebody's case, I'd like them to consider whether or not I 19 could meet with him next Monday afternoon to prepare him to 20 testify. 21 And I note in reading the Court's opinion that there 22 is one issue that I did not see the Court resolve and that may 23 have been because we didn't say it right. Because I know the 24 Court and the parties worked very hard over these materials. 25 But we received as a part of the production a CD containing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6609 4A4MSAT1 1 so-called DDR files out of the Lockheed Martin system. That 2 was represented to be a diskette of files taken directly from 3 the electromagnetic tapes without conversion into .VOC. 4 Now, your Honor will recall that there has been this 5 dispute added to as a result of Friday about how things were 6 received at Lockheed Martin, what happened to the files when 7 they were put on the electromagnetic tapes, and then how they 8 were decompressed. And the government said they can't find the 9 compression algorithm and then made a representation. We 10 sought the decompression algorithm. We had noted to the Court 11 that it would take 410 person hours to attempt to recreate a 12 decompression algorithm based on the lines of code that the 13 government had given us. Therefore, we had asked that the 14 algorithm be produced. The Court said anything that is not 15 given to us in the motion is denied. So I can take it that 16 that is denied. And if that's the ruling, that's the ruling. 17 We don't get it. 18 An alternative relief we proposed is we have a CIPA 19 procedure, Classified Information Procedures Act procedure, 20 because the algorithm is supposed to be classified. We had 21 suggested -- I thought we did -- if we didn't, then I'm 22 sorry -- that a member of our team with a clearance could go in 23 there and watch this work or look at the program as it is 24 running to try to do that Daubert thing of repeatability and 25 see what kind of data loss we can infer had occurred. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6610 4A4MSAT1 1 If none of those options, a CIPA hearing, putting a 2 cleared person, getting an algorithm, if the Court denies all 3 of that and that's on the record, then, of course, our next 4 step will be to seek the authorization, which we know how to 5 do, to have somebody spend 10 weeks recreating the algorithm. 6 That, of course would be for the Court to decide that. That 7 would be another motion that we would make. I didn't see that 8 expressly addressed in the Court's opinion. And it is of 9 sufficient importance to us in terms of our contentions, I 10 didn't want to let it go by. 11 THE COURT: Ms. Baker. 12 MS. BAKER: Your Honor, I don't really know how to 13 respond because we have essentially a factual dispute. The 14 government has produced on paper what the FBI says is the 15 decompression algorithm. It hasn't been produced as part of 16 the larger electronic package in which it resides because, 17 first of all, to produce it in electronic form raises 18 classification issues whereas printing it out on paper and 19 producing it the way we did, it could be unclassified. So that 20 would solve that issue. 21 Second, as we previously advised, in the larger 22 program in which it resides, it is designed to convert an 23 entire Lockheed Martin system tape at a time from the original 24 Lockheed Martin format to the .VOC file format. And, 25 therefore, even if it were possible to disclose that entire SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6611 4A4MSAT1 1 program to the defense, even if we could get it declassified -- 2 and I don't know whether or not that's possible -- but even if 3 it were, the defense won't be able to just put it on a computer 4 and run it because they cannot be given any entire original 5 Lockheed Martin tape because every tape contains recordings 6 from surveillances other than the surveillances involved in 7 this case. 8 So it seems to me that the FBI has provided the only 9 thing that it can reasonably provide under the circumstances, 10 and I understand that Mr. Tigar disputes that that's what it 11 is. But, as we have previously represented more than once, 12 that code printed on those pieces of paper that we produced is 13 the code that the FBI's engineers used to write the larger 14 conversion program. And so I don't believe that there is any 15 reason for a CIPA hearing or any of the other relief that 16 Mr. Tigar seeks. 17 Moreover, just to go back to the larger context here, 18 there still has been no issue raised by the defense as to why 19 this is really relevant as it actually relates to the 20 recordings that are in evidence. Again, I understand that 21 theoretically the defense is raising an issue with the fact 22 that the Lockheed Martin files were compressed. But that has 23 never been linked to the accuracy of any of the recordings that 24 are actually in evidence here. There has never been a claim 25 that there is anything missing from any recording by virtue of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6612 4A4MSAT1 1 the fact that when it was recorded on the Lockheed Martin 2 system it was compressed. 3 MR. TIGAR: May I respond, your Honor? 4 THE COURT: Sure. 5 MR. TIGAR: First, the FBI did not say this is the 6 decompression algorithm. They said, these are lines of code. 7 As I think counsel did acknowledge, you probably won't be able 8 to do anything with these lines of code, or we won't guarantee 9 that you will because the Lockheed Martin system did not 10 separate calls into files. It was a continuous system. I 11 understand that response better now that I have reviewed the 12 additional material the government has created. The Lockheed 13 Martin platform simply strung everything together and then they 14 had to go back in and find it. 15 But the point, the allegation that we have never 16 identified anything specific, we have said the following 17 specific things: First, based on the code that has been 18 provided to us, it appears that the Lockheed Martin system 19 achieved compression by deleting data. That is a statement 20 that I made to the Court, I represent to the Court. That's 21 what our technical expert said. It deleted data. What kind of 22 data did it delete? It deleted data where the system wasn't 23 hearing something that was loud enough to keep going or that 24 the system regarded as unexpected in some way. 25 Ms. Shellow-Lavine filed with the Court a letter SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6613 4A4MSAT1 1 showing that fully a third of the telephone calls in evidence 2 are broken up where more than one call was broken into multiple 3 pieces. The very evidence about which Ms. Soliman is 4 testifying, we submit at the end of the day, will show a 5 51-second gap and indeed there is a 51-second gap. The 6 question will be whether there were any words that were lost as 7 a result of that series of calls. You can take it from looking 8 at -- the SRIs would bear this out, that the breaking up of 9 calls into parts which could be a result of this on-hook or 10 off-hook situation, or it could be a result of silences that 11 caused the thing to shut down and make another file -- and I'll 12 get to that in a minute -- is a function of this decompression 13 program. That is, so far the only thing we know for sure -- 14 and I think the technology that we have seen shows it is -- 15 that the Lockheed Martin system doesn't know how to handle 16 clicking the telephone hook for call waiting or three-way. 17 But another way the Lockheed Martin system could break 18 calls into multiple files is by a decompression algorithm that 19 simply eliminates, creates a disconnect. And the way that 20 would work is this, your Honor. The Lockheed Martin system, as 21 counsel has explained, takes 14 gigabytes of information having 22 been compressed from something four times that much and strings 23 it all together. It is all one big file on that 14-4, as I 24 understand it. That's why when the government produced the 25 thing we asked for, here is some Lockheed Martin files, they SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6614 4A4MSAT1 1 were very careful to say, you won't be able to do anything with 2 these because they are not strung together so it is worthless. 3 What is all strung together is then pulled back apart in some 4 kind of decompression system that we don't yet fully 5 understand. And that's what's necessary to explore. 6 Why the gaps, your Honor? Why the gaps? So that's 7 our materiality argument. And if the government says, we can't 8 answer that question unless we let you inside our secret room, 9 then, gee, if we have established materiality, that is a CIPA 10 question. If the Court is not prepared to rule on that now, of 11 course, we have an expert witness who is coming in our case and 12 I can ask him about it. 13 THE COURT: I really did consider each of the requests 14 for documents and measured them against standards of 15 materiality and the right to production and the standards for 16 the admissibility and reliability of the recordings and the 17 state of all of the evidence in the case. And I considered 18 this request and determined that it was not warranted because 19 the material that was being sought compared to what was given 20 was not material, and so I denied it. 21 I did not say that you cannot, if you wish, pursue 22 your own expert. I have authorized substantial assistance and, 23 you're right. You know how to ask for it and the procedures 24 with respect to checking with the other people that have 25 knowledge about computer assistance. On the record that's been SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6615 4A4MSAT1 1 produced for me in the course of the trial, the briefing, which 2 has gone on for a long period of time, ultimately culminating 3 in the motion on Friday. 4 I was unpersuaded that this request was for documents 5 that were material, and I set out the standards in the opinion. 6 I considered every request. I did not obviously go over the 7 detail of each request, so the parties have briefed the details 8 of each request at length. And I've also indicated you're 9 welcome to continue to pursue any of this, whether by 10 compulsory process or requests for additional funds. It does 11 appear to me -- and I was not as blunt in the opinion as to the 12 strained, in my view, nature of some of the requests. But I 13 have reviewed them individually and reached the conclusions 14 that I reached in the opinion. 15 MR. TIGAR: I appreciate the clarification, your 16 Honor. And it lets us know what we have to do. As I've said, 17 we will be tendering those exhibits to the government. 18 We also received Mr. Morvillo's letter of October 1 -- 19 THE COURT: By the way, one thing in the argument, 20 there was a representation that in response to one request for 21 a summary that the summary, to the extent that there was a 22 summary, was work product prepared by the trial team. And no 23 one asked me to do anything else with that or to get it or seal 24 it. 25 MR. TIGAR: The notebook we are doing, your Honor, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6616 4A4MSAT1 1 would give to the government and the Court. So that will 2 preserve any -- you're talking about the government's trial 3 team? 4 THE COURT: No. Ms. Banout's summary which Ms. Baker 5 said was work product prepared for the trial team. And I 6 accepted that representation. 7 MR. TIGAR: Your Honor, as I understand the law -- and 8 I either do or don't -- if it is work product but otherwise 9 producible under Jencks, then you need a Goldberg analysis to 10 see if it comes out the other end and we get it. I think that 11 issue is mooted, as I understand it, by the Court's opinion 12 with respect to these issues. 13 THE COURT: If the parties wanted me to review that 14 summary and preserve it for purposes of review, that was my -- 15 MR. TIGAR: I'm sorry, your Honor. I'm a step behind. 16 Yes, your Honor, if -- I'm afraid I overlooked that issue. We 17 do not concede that work product is a valid objection to a 18 Jencks request. 19 THE COURT: Ms. Baker. 20 MR. TIGAR: I think that's the Goldberg case. 21 MS. BAKER: Your Honor, I would have to look at the 22 Goldberg case to be sure. If it is the one that I'm recalling, 23 there is a line of cases -- I assume that Goldberg is part of 24 it -- that say where a government lawyer is interviewing a 25 witness and taking notes of what the witness is saying that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6617 4A4MSAT1 1 work product doesn't protect the government lawyer's notes of 2 what the witness is saying. If that's this case, that's not 3 apposite here. 4 The issue here is Ms. Banout was asked by the 5 government trial team as part of the government trial team's 6 preparations for trial to prepare summaries of certain calls so 7 that the government trial team could decide whether or not it 8 wished to use those calls as evidence in its case. There is 9 nothing on the face of those summaries that's going to indicate 10 that. The summary identifies a call by its date and time and 11 then describes its contents. If the Court wishes to look at 12 those summaries we will provide them. But the factual 13 predicate for the claim of work product is not on the face of 14 the document. It is the facts that I have just proffered to 15 the Court. 16 MR. TIGAR: We have been given similar summaries 17 throughout the case, your Honor, in the form of tech cuts. I 18 don't know what's different about these. 19 MS. BAKER: Your Honor, there is a difference. The 20 tech cuts were given before the -- predated the commencement of 21 the prosecution. These summaries are different. They are not 22 tech cuts. They were prepared specifically during the 23 government trial team's preparation for the trial and that is 24 the very essence of work product. 25 MR. TIGAR: Surveillance began in 1995. Ever since it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6618 4A4MSAT1 1 began, litigation has been in place between one or more of the 2 coconspirators, the defendants in this case, and the United 3 States of America. In any rate, that's our position. 4 With respect to Mr. Morvillo's letter -- 5 THE COURT: Could you give me a letter, Ms. Baker, 6 and, if necessary, the summary that was referred to in the 7 motion? 8 MS. BAKER: Yes, your Honor. When you say you want a 9 letter, do you want me to proffer again the facts that I have 10 just stated? 11 THE COURT: No. If there is anything else to be said. 12 Look at the request and I'll take the proffer as to the way in 13 which the summary was prepared, unless anyone wants to me to do 14 anything further on that. 15 MS. BAKER: We will do that. The only other thing is, 16 if Mr. Tigar wants to move on to discussing the Pat Fitzgerald 17 issue, that's fine, but I do need to respond to Mr. Tigar's 18 request about calling Mr. Elliot. There is a scheduling issue. 19 MR. TIGAR: I would like to know the scheduling issue. 20 THE COURT: All right. 21 MR. TIGAR: We may not call any witnesses other than 22 Mr. Elliot. 23 MS. BAKER: The scheduling issue is that Mr. Elliot 24 has a long-standing commitment to be out of the country on 25 other official business of the FBI from this Thursday, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6619 4A4MSAT1 1 October 7, through October 16. So he would not be available 2 again to testify after this Wednesday until October 18, which 3 is the Monday after his return. 4 MR. TIGAR: I had thought, your Honor, based on what 5 the Court said to the government, that Mr. Elliot would be 6 warned that he might be called. And I relied on that and did 7 not issue a protective subpoena for him which would have said, 8 I think, and laying aside all other business, get to the court. 9 The defense has for months agreed as to the order in 10 which it would go. And the Court's opinion I reviewed 11 carefully and it is our respectful request that the Court tell 12 the government to have Mr. Elliot here next Tuesday so that we 13 can begin our case with him. 14 THE COURT: Ms. Baker, I am very, very attentive to 15 the needs of all of the parties and the witnesses, but this 16 request has been out there for a while. And the government 17 resisted calling Mr. Elliot in its own case. I left that open 18 as a possibility. The defendant said no. We will call 19 Mr. Elliot as part of our case. So be it. 20 We said that the defense case would begin with 21 Ms. Stewart, that it would begin on Tuesday. And it is 22 difficult to believe that there is any business so important 23 that a potential witness could not be subpoenaed to appear in 24 the court based upon a long-standing commitment. I ask jurors, 25 what happens if you took ill? What happens if for some reason SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6620 4A4MSAT1 1 you couldn't be there? Is there nothing else? I fully 2 appreciate other commitments of witnesses. But I'm confident 3 that other arrangements can be made so that for the few days 4 that it would be necessary to interrupt this trip, other 5 arrangements can be made. 6 MS. BAKER: Your Honor, as soon as we have a break I 7 will reach out to Mr. Elliot and try to get more information. 8 THE COURT: You know, I have accommodated in terms of 9 the evidence a honeymoon. People have been called away for 10 other meetings. But an assertion that he has other FBI -- 11 long-standing FBI business brought to my attention for the 12 first time today when it was plain that as of last week or 13 perhaps the week before that one of the real possibilities -- 14 in fact, one that the government was asking for was that 15 Mr. Elliot be called as part of defendant's case, not as part 16 of the government's case. And the defendant's case was going 17 to begin on Tuesday. And having said that, it is not clear to 18 me that you, rather than Mr. Elliot, keeps Mr. Elliot's 19 calendar or adjusts his schedule of priorities. 20 MS. BAKER: I am certainly not quarreling with the 21 Court's direction. I wanted simply to advise the Court that as 22 soon as we have a break, I will speak with Mr. Elliot. And if 23 his schedule absolutely positively cannot be changed -- all I 24 know is that it is an important matter that involves a specific 25 number of other people. If it absolutely positively cannot be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6621 4A4MSAT1 1 changed, the government will have to bring him here before he 2 leaves. But I want the Court to know of the issue and to know 3 that I will address it as soon as we have an opportunity to do 4 so at the next break. 5 THE COURT: There are planes. People come, they go. 6 MS. BAKER: I do understand that, your Honor. One way 7 or the other, we will get this issue resolved. But I want the 8 Court and defense counsel to know that I will provide 9 additional information as soon as we have a break. 10 THE COURT: Should we deal with the -- 11 MR. TIGAR: Your Honor, I can understand we want to 12 bring in the jury. May I give the Court the citation of two 13 cases about the matter, about the Fitzgerald issue? 14 THE COURT: Hold on a moment. 15 Mr. Fletcher advises me that one juror's aunt passed 16 away and the wake is tomorrow evening and therefore the juror 17 requests that we break at 4:00 tomorrow. We can certainly 18 break at least by 4:00 tomorrow. So I will just tell the 19 jurors at an appropriate time today that we will be breaking at 20 4:00 tomorrow. 21 MR. TIGAR: With respect to the Fitzgerald matter, 22 your Honor, United States v. Aaron, 457 F.2d 865, and that is 23 discussed, although the defendant did not prevail, in the case 24 in United States v. Ortega. All we have is a Lexis cite 2002 25 U.S. Dist. Lexis 22183. It is Judge Cote's opinion, July 17, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6622 4A4MSAT1 1 2002, 00 Cr. 432. And we would like to make some observations 2 about it, your Honor, but, obviously, it is not an urgent 3 matter and we would await the Court's and the trial schedule's 4 right time for that. Whenever the Court wanted. 5 THE COURT: When do the parties want to discuss the 6 issue of additional 3500 material? 7 MR. TIGAR: We are ready right now, your Honor. 8 THE COURT: It is a quarter after 10. I would prefer 9 to move with the jury and take this up at lunch or a break. 10 MR. MORVILLO: Your Honor, the government is prepared 11 to deal with it whenever the Court wants to deal with it, after 12 court today, at the lunch break, at the morning break. 13 THE COURT: Maybe we should do it at the lunch break. 14 Tell me what the schedule -- 15 MR. MORVILLO: Of witnesses today, your Honor? 16 THE COURT: Yes. And if we are going to be dealing 17 with any documents as to which I've ruled as to limiting 18 instructions, I want to have the limiting instructions 19 available to me. So what's -- 20 MR. MORVILLO: The first witness, your Honor, as the 21 Court is aware, will be the conclusion of the testimony of 22 Ms. Soliman. I believe following that, Mr. Dember is going to 23 be presenting some of the materials in Ms. Stewart's search, 24 and I'll let him address limiting instructions. 25 MR. DEMBER: Your Honor, with respect to those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6623 4A4MSAT1 1 exhibits which we will be publishing to the jury, some of which 2 we will be reading, I believe the only limiting instructions 3 that apply will be your instruction that the document is not 4 being considered for their truth. It is the defendant 5 Stewart's state of mind, intent and knowledge. 6 With respect to -- I'll list the exhibits. Do you 7 want me to do that, your Honor? 8 THE COURT: Sure. 9 MR. DEMBER: They are Exhibit 2625, 2630, 2623, 2624, 10 2628, 2626, 2612, 2611, 2627, 2619, 2622. And 2666, your 11 Honor, that is the immigration court decision that your Honor 12 ruled under the rule of completeness would be required to be 13 presented with those other exhibits -- some of those exhibits I 14 have just mentioned. We marked that as 2666. 15 THE COURT: There were two immigration decisions. 16 MR. DEMBER: Both of them. They are actually one 17 document stapled together. We marked them with one exhibit 18 number, your Honor. 19 By the way, this I have just read you, that is the 20 order in which they are coming in, your Honor, with no other 21 exhibits in between so far. And also 2620 and 2671. I 22 realized this morning there is two exhibits that were not 23 objected to by the defense which are Exhibits 2675 and 2776. 24 They are letters from the United States Department of State 25 which essentially give opinions about the Egyptian government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6624 4A4MSAT1 1 and what was transpiring in Egypt back in 1996. It is our 2 position clearly they are hearsay, your Honor. They were only 3 meant and intended to be offered to go to the defendant's state 4 of mind and her knowledge and intent, and we believe the same 5 instruction would apply to those two exhibits as well. 6 Your Honor, those are the only exhibits that we intend 7 to offer and publish to the jury at this point in the 8 presentation. There are a few others, but nothing that we will 9 be offering right now. 10 THE COURT: I'd have to compare these lists against 11 what I ruled. The representation is that all of these exhibits 12 come in with the instruction that these exhibits are not 13 offered for the truth of what is said in the exhibit and solely 14 with respect to Ms. Stewart's knowledge, intent, and state of 15 mind. 16 MR. TIGAR: Your Honor, we are hearing the list and 17 the order in which the government intends to present them for 18 the first time as well, and we do not know now which exhibits 19 the government intends to publish in full, which in part, and 20 how. And, of course, so as not to interrupt the proposed 21 publication with what are essentially 106 type objections, 22 shouldn't you be reading more and so on, that would be helpful 23 information for us. 24 Also, I assume that with respect to 2634, which is 25 Ms. Stewart's notebook, that the actual notebook will be in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6625 4A4MSAT1 1 evidence. 2 THE COURT: That wasn't one of the exhibits that was 3 listed. 4 MR. DEMBER: It was not listed, your Honor. I advised 5 counsel last week this is the exhibit which originally -- we 6 were just allowed to see and offered the last page of the 7 notebook. I offered counsel at the end of last week that we 8 were agreeing -- we had agreed to offer the entire notebook 9 into evidence. It is so marked that way. I advised counsel of 10 that last week. But there is no limiting instruction 11 associated with that exhibit, your Honor. 12 MR. TIGAR: There is. This is clearly I think the 13 extrinsic evidence shows that this is Ms. Stewart's writing and 14 therefore it comes in. But the copy we were given is not a 15 copy of all the pages of the notebook. That was my question. 16 I am asking whether or not the whole thing is coming in or not. 17 Ms. Grant, I can hear her saying it is a copy of all 18 pages that have writing. The significance, your Honor, is the 19 pages that don't have writing are important because the single 20 page that the government wanted to use is in fact separated 21 from the rest. And as long as the whole thing is coming in, I 22 have no objection. 23 MR. DEMBER: Your Honor, I thought I stated the whole 24 notebook has been marked as an exhibit and is all coming in. 25 Maybe I didn't make that clear. If I didn't, I apologize. But SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6626 4A4MSAT1 1 the whole notebook physically is coming into evidence, 2 including blank pages. 3 THE COURT: It seems to me that we should take a break 4 after Ms. Soliman's testimony and before we go through the 5 search exhibits relating to Ms. Stewart. 6 Are we ready to continue with Ms. Soliman and bring in 7 the jury? All right. 8 Mr. Fletcher, let's bring in the jury. 9 MR. BARKOW: Your Honor, before the jury comes in, 10 Mr. Tigar just provided me the redacted copy of this document 11 and we object to the redaction. It still has a header, last 12 modified. And our objection is any reference -- in fact, our 13 initial objection is any reference to the typewritten material 14 at all without sufficient foundation, and in particular to the 15 entire last modified column. This redaction still has at the 16 top last modified underlined and what's below that has been 17 redacted. 18 THE COURT: The last modified -- I think the last 19 modified column should come out. 20 MR. TIGAR: Including the words last modified. 21 THE COURT: Right. 22 MR. BARKOW: Your Honor, just to make clear, the 23 objection is, there should be no reference at all to the words 24 in that column until and unless a foundation is laid. 25 MR. TIGAR: I understand the Court's direction now. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6627 4A4MSAT1 1 had not understood it before. In fact -- 2 THE COURT: Do you need time? 3 MR. TIGAR: In fact, your Honor, may I confer briefly 4 with Mr. Barkow? Because I think we can resolve this now that 5 we understand the Court's order. 6 THE COURT: Absolutely. I will ask the jury to stay 7 out there for just a moment. 8 MR. TIGAR: Your Honor. 9 THE COURT: Let's, please take a moment before the 10 jury comes in. Mr. Fletcher, could you hold up. Give us five 11 more minutes, please. 12 MR. TIGAR: We have resolved the issue, your Honor. 13 We are just blacking out something here. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6628 4a4esat2 1 MR. TIGAR: We've agreed, your Honor, the document 2 Mr. Barkow's given to me is being shown to the witness to 3 refresh her recollection, and then there's no chance that she 4 would read something off it or say something off it that would 5 implicate what you just ruled on. 6 THE COURT: OK. So -- 7 MR. TIGAR: So we're ready. 8 THE COURT: All right. Mr. Fletcher, let's bring in 9 the jury. 10 (Recess) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6629 4a4esat2 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. It's 3 good to see you all. 4 As I have told you, I deal with various issues with 5 the parties early in the morning and again at the end of the 6 day. I try to deal with those issues without inconveniencing 7 you sitting in the jury box. And so sometimes the time when 8 you come in is somewhat delayed. I'm sorry about that. I try 9 to deal with issues as expeditiously as I can and to start as 10 early as I can, but as I say, I think it's more convenient for 11 you to wait in the jury room. 12 And we really don't in this case have sidebar 13 conferences and the like which exist in some other cases. And 14 that's because I try to deal with these issues in a way that, 15 among other things, is convenient for you. So if you're 16 delayed in coming in in the morning or at any of the breaks, I 17 appreciate your indulgence. It's all my responsibility and it 18 has nothing to do with anything that you'll decide in the case. 19 So I very much appreciate your indulgence, and as I said, it's 20 good to see you all. 21 Ms. Soliman is on the stand. 22 THE DEPUTY CLERK: Ms. Soliman, you are reminded you 23 are still under oath. 24 THE COURT: All right. Mr. Tigar, you may examine. 25 MR. TIGAR: Thank you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6630 4a4esat2 1 CROSS EXAMINATION 2 BY MR. TIGAR: 3 Q. Ms. Soliman, good morning. 4 A. Good morning. 5 Q. You were asked by some of the government lawyers to 6 translate -- excuse me, to listen to some calls that you were 7 telling us about, right? 8 A. Right. 9 Q. And you've -- at the time you were doing that, did you make 10 some notes on a piece of paper about what you could hear on 11 these calls? 12 A. Yes, I did. 13 Q. Would it help you to have a copy of those notes to look 14 back at while I'm asking you questions? 15 A. Yes. 16 MR. TIGAR: May I approach, your Honor. 17 THE COURT: Yes. 18 MR. TIGAR: And may I place before the witness the 19 notes of her work that she made. 20 THE COURT: Yes. 21 BY MR. TIGAR: 22 Q. And just pointing down here, that's your handwriting, 23 correct? 24 A. Yes. 25 Q. All right. Now, the first item on the -- let me go back a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6631 4a4esat2 Soliman - cross 1 ways. 2 When did you do the work that led you to make these 3 notes? When did you do the listening to the calls? 4 A. Before -- when I put the notes? 5 Q. Yes. 6 A. A day -- last week or the week before, I'm not sure when. 7 Q. Sometime in September of this year? 8 A. Yeah. 9 Q. And the first call that you listened to, the first thing 10 that you heard was just a sound of somebody punching some 11 digits, right? They were dialing some -- 12 A. Yes. 13 Q. And you could hear a voice that said, what do you mean, 14 right? 15 A. Right. 16 Q. And did you conclude from that that that was not a 17 completed telephone call, that was just somebody doing 18 something with the phone? 19 A. They were trying to dial a number, yes. 20 Q. But it didn't sound like they completed the call, correct? 21 A. No. 22 Q. It is correct it did not sound like they were completing 23 the call? 24 A. They did not. 25 Q. OK. And then the next thing on was you could hear on the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6632 4a4esat2 Soliman - cross 1 next one down somebody dialed a number, correct? 2 A. Correct. 3 Q. And you could hear Mr. Yousry and Mr. Sattar talking, 4 right? 5 A. Yes. 6 Q. And in what languages or language were they speaking? 7 A. Arabic. 8 Q. In Arabic. And you are an Arabic speaker, right? 9 A. Right. 10 Q. So you could hear what they were saying, correct? 11 A. Correct. 12 Q. Then after a while that call -- that file finished, right? 13 A. The -- what finished? 14 Q. Their conversation that they were having? 15 A. Yeah, uh-huh. 16 Q. And the next file you listened to had some dialing but no 17 voices, right? 18 A. Correct. 19 Q. And the next file you listened to had Mr. Sattar talking to 20 Mr. Clark's home but -- and Mr. Yousry was also on, correct? 21 A. Correct. 22 Q. And that's when you heard someone at Mr. Clark's home say 23 that he's not there, correct, or did you listen to that part? 24 A. I did listen, but he spoke to them. 25 Q. With whom did -- who spoke with whom? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6633 4a4esat2 Soliman - cross 1 A. Mr. Clark. 2 Q. So your -- it's your recollection -- well, did you at any 3 time hear a -- on the call someone say, Mr. Clark is not here? 4 A. Yes. 5 Q. On which of the calls was it where Mr. Clark wasn't there? 6 A. You know, there's so many calls I do, I don't know just by 7 indicating, yes, this one and that one. There are hundreds of 8 calls. But I know from this piece of paper, I remember very 9 well that at one point his wife or someone said, he's not here, 10 and then after that he came, he came to the phone and they had 11 a conversation, three-way conversation, Yousry, Sattar and 12 Clark. 13 Q. So let -- then let's go back, then. 14 First file you listened to was just dialing, no 15 completion, correct? 16 A. Yes. 17 Q. Then you heard Mr. Yousry and Mr. Sattar start to have a 18 conversation, right? 19 A. Yes. 20 Q. Then Mr. Sattar and -- Mr. Sattar or somebody dialed in the 21 third party, which would be Mr. Clark's home, correct? 22 A. Correct, yes. 23 Q. Then someone, it sounded like Mrs. Clark, answered, 24 correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6634 4a4esat2 Soliman - cross 1 Q. And said he's not home, right? 2 A. Correct. 3 Q. And then next do you remember that there was dialing to 4 Mr. Clark's office and I think -- and people spoke to him 5 there? 6 A. Yes. 7 Q. Then do you remember that the conversation continued? 8 A. Yes. 9 Q. And do you remember that eventually Mr. Yousry got off the 10 phone and then somebody called on Mr. Mohammed Salah, and 11 Mr. Clark and Mr. Yousry spoke to Mr. Mohammed Salah, do you 12 remember that? 13 A. No. 14 Q. That was not -- that conversation, Mohammed Salah, was not 15 on the calls that you were asked to look at last September, 16 that is to say, ten days, two weeks ago, right? 17 A. (Nods head) 18 Q. As far as the calls you were asked to look at, it was -- as 19 far as it went, was Mr. Yousry and Mr. Sattar speaking to 20 Mr. Clark in his office, right? 21 A. Right. 22 Q. And from the point where you heard the dialing and somebody 23 saying, what do you mean, down to the last call that you 24 listened to, how many actual files was that on the disk that 25 you were looking for -- listening on? Excuse me. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6635 4a4esat2 Soliman - cross 1 A. Six. 2 Q. Six. And -- thank you. 3 MR. TIGAR: I have no further questions -- excuse me, 4 your Honor, may I have one moment? 5 THE COURT: Yes, sure. 6 MR. TIGAR: Excuse me. 7 Q. Ms. Soliman, I am reminded that I probably misspoke. 8 The last call, that is when Mr. Yousry and Mr. Sattar 9 were calling, correct? 10 A. Yes. 11 Q. Now -- and I asked you, did you hear a later call where 12 Mr. Sattar and Mr. Clark continued to talk and they were 13 talking to Mr. Salah? 14 A. Not on this one. 15 Q. Not on this one. But you do remember another call that you 16 heard another time, do you, where Mr. Sattar and Mr. Clark were 17 talking to Mr. Salah; do you remember that one? 18 A. Yes. 19 MR. TIGAR: Thank you. No further questions. 20 MR. BARKOW: No questions, your Honor. 21 THE COURT: All right. Ms. Soliman, you're excused. 22 You may step down. 23 (Witness excused) 24 THE COURT: All right. Ladies and gentlemen, there 25 is -- I realize it's a bit early for you to take a midmorning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6636 4a4esat2 Soliman - cross 1 break, but we are going to take a midmorning break for about 15 2 minutes at this point. 3 So please remember my continuing instructions. Don't 4 talk about this case at all. Always remember to keep an open 5 mind until you've heard all the evidence, I've instructed you 6 on the law, you've gone to the jury room to begin your 7 deliberations. 8 (Continued on next page) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6637 4a4esat2 Soliman - cross 1 (In open court; jury not present) 2 THE COURT: I'll take a break, you can talk about the 3 exhibits and then I'll return. 4 (Recess) 5 MR. PAUL: Your Honor, we have one scheduling request. 6 THE COURT: All right. Mr. Paul? 7 MR. PAUL: Your Honor, Mr. Morvillo stated that 8 perhaps some issues might be brought up at the end of today's 9 proceedings. I just want to alert the Court that this Monday 10 happens to be one of those visitation Mondays that will affect 11 my client. So I would ask that we break at 4:30 and not 12 continue tonight. 13 THE COURT: Sure. 14 MR. TIGAR: Your Honor, Ms. Shellow-Levine and 15 Mr. Dember have discussed some of these items at the break and 16 reached agreement with respect to a substantial number of them. 17 However, the first item that the government wants to read is 18 Government Exhibit 2635. 19 THE COURT: I thought 2625. 20 MR. TIGAR: 2635, yes, your Honor. 21 THE COURT: Is it 25 or 35? 22 MR. TIGAR: Three five, your Honor. And that is a 23 copy which looks like it came over either a fax or a document 24 retrieval system, and it contains 28 CFR Section 501.3. And 25 the government intends to read only the first page, which is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6638 4a4esat2 Soliman - cross 1 the regulation. 2 As going to Ms. Stewart's knowledge, intent and state 3 of mind, we would ask that the entire document be read to the 4 jury, if any of it is to be read. And the reason for that is 5 that the document was apparently found as a single item. The 6 regulation in question is one that was revised as of July 1, 7 1997, the Court can see that from the first page. 8 The later material which the collector, the person, 9 Ms. Stewart had had the document wanted, consists of a lot of 10 comments. And what happened was that the DOJ put out a 11 proposed rule-making that became 501.3. They opened it for 12 notice and comment under Section 4 of the Administrative 13 Procedure Act. Then after a notice and comment period they 14 issued this regulation dated in evidence as 2635. 15 But they did so, your Honor will see, with a great 16 deal of legislative history. And that legislative history is 17 absolutely essential to the understanding of what these 18 regulations -- that is, on page one -- mean. That is shown, 19 among other things, by the government exhibit which is the very 20 first SAM issued to Omar Abdel Rahman, which was a -- a 21 translation of which was played for the jury by videotape. 22 And you may remember the translator translating least 23 restrictive alternatives as this is the least they could do. 24 The least -- the legislative history is a discussion of how the 25 Department of Justice does not intend to have anything in these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6639 4a4esat2 Soliman - cross 1 regulations interfere with constitutional rights. 2 And so in terms of knowledge, intent and state of 3 mind, of course the remaining part is in our view important. 4 And that is our application; that if any is to be read, that it 5 all be read; or in the alternative, your Honor, since various 6 versions of this regulation are in evidence as having been 7 seized hither and tither but without the explanatory material, 8 that the document be simply shown rather than read. 9 But that's our position on that. We haven't finished 10 all of our discussions with the government about some of these 11 other items, but certainly the first 19 items that the 12 government had intended to publish in any way, resolution has 13 been reached, as I say, with the exception of this one, which 14 is the first of that list of 19. 15 So we could go quite some way before getting to 16 something as to which a discussion still remains to be had. 17 THE COURT: Government? 18 MR. DEMBER: Your Honor, we don't think that it's 19 necessary to read anything but the first page. It is what was 20 in effect when the SAM went into effect. What you have -- what 21 would end up happening, your Honor, is if we read the 22 additional pages, they include a repetition of what's on the 23 first page. Much of it, while there is some other language in 24 there, there is also a repetition of the language which is rule 25 50 -- Section 501.3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6640 4a4esat2 Soliman - cross 1 And so, you know, the jury's just going to hear the 2 same thing over and over again. It's just simply a waste of 3 their time, your Honor. 4 THE COURT: OK. I can't -- as an alternative, 5 Mr. Tigar says display but don't read; admit, display, don't 6 read. 7 MR. DEMBER: I hear that, your Honor. And, frankly, 8 if your Honor directs me to read the entire document, I'm not 9 going to read the entire document; I'll simply display it. But 10 I don't think it's necessary -- sorry. 11 THE COURT: I didn't mean to interrupt you. It's just 12 I can't decide a completeness issue because it -- at this point 13 it depends on your statement that the rest of the document 14 includes several other readings of 501.3 and Mr. Tigar's 15 statement that there are -- there is some language in -- 16 somewhere in the rest of the document which I can't find, 17 having seen the document now, but some language that he wants 18 read; probably doesn't want the whole 501.3 read continually, 19 but wants some, quote, legislative history read. 20 Whether the parties can resolve that, I don't know, 21 but I can't resolve it without reading the whole document now. 22 MR. DEMBER: Understood, your Honor. 23 Under the circumstances, your Honor, I will simply 24 display this document. 25 THE COURT: OK. It was not a document which my notes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6641 4a4esat2 Soliman - cross 1 indicate there had been any objection to. 2 MR. TIGAR: Absolutely not, your Honor. And that was 3 because the document as a whole, taken as a whole, is quite 4 favorable to the defense position here and Ms. Stewart's 5 understanding of the department's serious reservations about 6 what it's doing in this... 7 THE COURT: And because there was no objection, there 8 was no request for a limiting instruction on 2635 either. 9 MR. DEMBER: Correct, your Honor, there was none. 10 MR. TIGAR: No, your Honor, it's admitted -- well, as 11 far as we're concerned, there's no need for a limiting 12 instruction. It is law, as to which the Court would instruct. 13 It does go to Ms. Stewart's knowledge, intent and state of 14 mind. There are backward looking statements in the document, 15 particularly in the third page, commentators have told us X, Y 16 and Z, but they don't appear to be important, just people 17 expressing opinions. 18 THE COURT: OK. 19 MR. TIGAR: I don't want the Court to be misled about 20 what we say is in the document, but we don't see a need for a 21 limiting instruction. 22 THE COURT: The government doesn't either? 23 MR. DEMBER: No, your Honor. 24 THE COURT: OK. The remaining 19 initial documents, 25 do they come in with a limiting instruction or not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6642 4a4esat2 Soliman - cross 1 MR. DEMBER: Your Honor, most of those documents 2 consist of the same two -- they're SAMs-related documents. 3 They're either versions of the SAMs that were found during the 4 search, they are letters that accompany the SAMs, they're 5 affirmations. Some are blank, some are signed. 6 THE COURT: That's not the list you directed me to 7 earlier. 8 MR. DEMBER: You asked me earlier for what exhibits 9 required instructions. 10 THE COURT: Ah. 11 MR. DEMBER: So I gave you the ones that required 12 instructions, which the Court gave instructions for. These are 13 not. 14 THE COURT: I was just unclear. So you've got 19 15 documents as to which there is no objection and no request for 16 limiting instructions? 17 MR. TIGAR: Just a moment, your Honor, just to make 18 sure. 19 2657, your Honor, does have the attached newspaper 20 articles, but I think the government does not intend to publish 21 or read those, only to show them. But to the extent it shows 22 them, that's the August 3rd, 2000, letter, your Honor. 23 MR. DEMBER: Your Honor ruled that we could read the 24 fax cover sheets, cover letter from Mr. Fitzgerald and the 25 titles, authors and dates of the accompanying articles but not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6643 4a4esat2 Soliman - cross 1 read the articles, and we're going to do just that. 2 THE COURT: I've previously, I think, given an 3 instruction on those articles. They're not received for the 4 truth, they're newspaper articles. 5 MR. TIGAR: Yes, your Honor. 6 THE COURT: I'll give that instruction again, though. 7 MR. TIGAR: In the first 19, that's the only one, your 8 Honor. 9 THE COURT: OK. We're able to bring in the jury. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6644 4a4esat2 Soliman - cross 1 (In open court; jury present) 2 THE COURT: All right. Mr. Dember. 3 MR. DEMBER: Your Honor, at this time we'd ask 4 permission to present to the jury some of the exhibits that 5 were seized from a search of Ms. Stewart's office in April of 6 2002. May we do that? 7 THE COURT: All right. 8 MR. DEMBER: Your Honor, may we first display for the 9 jury Government Exhibit 2635. 10 THE COURT: And when you do that, note that exhibits 11 are in evidence. 12 MR. DEMBER: I'm sorry, your Honor? 13 THE COURT: When you mention an exhibit, mention that 14 it's in evidence. 15 So Government Exhibit 2635 in evidence? 16 MR. DEMBER: In evidence, your Honor, yes. 17 THE COURT: All right. 18 (Government Exhibit 2635 displayed for the jury) 19 MR. DEMBER: Your Honor, at this time may we display 20 for the jury Government Exhibit 2636, which is in evidence. 21 THE COURT: All right. 22 MR. DEMBER: Your Honor, at the top it simply reads 23 attorney's affirmation. 24 (Government Exhibit 2636 displayed for the jury) 25 MR. DEMBER: May I go to the next page, at the top it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6645 4a4esat2 Soliman - cross 1 reads notification of Special Administrative Measures, May 11, 2 1998. 3 (Pause) 4 MR. DEMBER: Your Honor, may we display for the jury 5 Government Exhibit 2645. 6 THE COURT: In evidence? 7 MR. DEMBER: In evidence. I'm sorry, your Honor. 8 THE COURT: All right. 9 (Government Exhibit 2645 displayed for the jury) 10 MR. DEMBER: And with your permission, your Honor, I 11 will read the first page of the exhibit. 12 THE COURT: All right. 13 MR. DEMBER: It reads: Attorney's affirmation. Lynne 14 Stewart, pursuant to 28 U.S.C., Section 1746 hereby affirms 15 under the penalties of perjury the truth of the following: 16 One, I am counsel of record for inmate Omar Abdel 17 Rahman (USMS number 34892-054) and have read the "notification 18 of Special Administrative Measures" for inmate Omar Abdel 19 Rahman, dated May 11, 1998, and consisting of five (5) pages. 20 I understand the restrictions contained in that document and 21 agree to abide by its terms, including the fact that I will not 22 patch any calls by inmate Abdel Rahman through to third parties 23 (or otherwise transfer such calls), nor will I allow third 24 persons (other than cleared translators who will be present in 25 my office with me or my cocounsel) to participate in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6646 4a4esat2 Soliman - cross 1 conversations. I have also instructed the staff in my office 2 that such staff are not to patch any calls by inmate Abdel 3 Rahman through to third parties (or otherwise transfer such 4 calls), nor will such staff allow third persons (other than 5 cleared translators who will be present in my office with me or 6 my cocounsel) to participate in the conversations. I also 7 agree that I will not record any conversations with inmate 8 Abdel Rahman or allow any member of my office or staff to do 9 so. 10 Two, I also understand that during any visits to 11 inmate Abdel Rahman at any prison facilities, I shall again 12 employ only cleared translators/interpreters and shall not 13 leave such translator/interpreter alone with inmate Abdel 14 Rahman. Moreover, I shall only be accompanied by translators 15 for the purpose of communicating with inmate Abdel Rahman 16 concerning legal matters. 17 Three, I further understand that neither I nor any 18 member of my office shall forward any mail received from inmate 19 Abdel Rahman to a third person, nor shall I use my meetings, 20 correspondence or phone calls with Abdel Rahman to pass 21 messages between third parties (including, but not limited to, 22 the media) and Abdel Rahman. 23 Four, I understand that the Bureau of Prisons is 24 relying upon my sworn representations as a member of the bar in 25 this affidavit in affording inmate Abdel Rahman the opportunity SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6647 4a4esat2 Soliman - cross 1 to meet and/or speak and/or correspond with me and my office 2 and that any violation of these understandings could, among 3 other things, result in further limitation (or even 4 elimination) of inmate Abdel Rahman's ability to contact me or 5 my office. 6 It reads Lynne Stewart, Esquire, the signature name 7 Lynne Stewart, dated May 7, 1998, New York, New York. 8 Let's turn to the next page. And it reads, 9 notification of Special Administrative Measures, May 11, 1998. 10 Turn the page, please. 11 Your Honor, at this time may we display for the jury 12 Government Exhibit 2655, which is in evidence. 13 THE COURT: All right. 14 MR. DEMBER: May I have a moment, your Honor, to 15 consult with counsel. 16 THE COURT: Sure. 17 (Government Exhibit 2655 displayed to the jury) 18 MR. DEMBER: Your Honor, I'm going to read this first 19 page of the exhibit. It's dated August 23rd, 1999. It 20 indicates by Federal Express, addressed to Lynne Stewart, 21 Esquire, 21 Warren Street, Suite 3E, New York, New York 10007. 22 Re Omar Ahmad Ali Abdel Rahman. 23 Dear Ms. Stewart, enclosed please find your copy of 24 the "notification of Special Administrative Measures" (SAM) for 25 Omar Ahmad Ali Abdel Rahman. After reading the SAM, please SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6648 4a4esat2 Soliman - cross 1 sign the enclosed "attorney's affirmation" and return the 2 original to our office. 3 Very truly yours, Mary Jo White, United States 4 Attorney, Southern District of New York, by Gerard C. 5 Francisco, paralegal specialist, 212-637-1020. And there's a 6 signature from Mr. Francisco. 7 Could we just turn to the next page. It indicates the 8 attorney affirmation. Why don't we turn to the next page. 9 And at the top it reads, notification of Special 10 Administrative Measures, April 7, 1999. And why don't we go 11 through each of the pages, please. 12 Your Honor, may we display for the jury Government 13 Exhibit 2654, which is in evidence. 14 THE COURT: Yes. 15 (Government Exhibit 2654 was displayed for the jury) 16 MR. DEMBER: And I will read it. Letter dated May 9, 17 2000, via fax, 507-287-9603. Addressed to Warden Wise, FMC 18 Rochester, PO Box 4600, 2110 East Centre Street, Rochester, 19 Minnesota, 55072. 20 Re: Omar Abdel Rahman, 34892-054, legal visit. 21 Dear Warden Wise: I am writing with regard to a legal 22 visit with the above referenced inmate. I would be accompanied 23 as previously by interpreter Mohammed Yousry. We wish to visit 24 Mr. Rahman on Friday, May 19th, and Saturday, May 20, 2000. 25 Please contact my office as soon as possible to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6649 4a4esat2 Soliman - cross 1 confirm your approval of our planned visit on those dates. You 2 can speak to Pat, the paralegal in my office, with the 3 confirmation. 4 Thank you for your kind attention to this matter. 5 Very truly yours, Lynne F. Stewart. 6 There's a signature and the same name. 7 May we display for the jury Government Exhibit 2644, 8 which is in evidence. 9 THE COURT: All right. 10 (Government Exhibit 2644 was displayed to the jury) 11 MR. DEMBER: The first page is a fax cover sheet from 12 a Federal Medical Center. It indicates sensitive official 13 government business. 14 It's addressed to Lynne Stewart, Attorney, date, 15 May 12, 2000, fax number, 212-625-3939. Pages indicates two, 16 including this cover sheet. From Jeffrey E.E. Toenges, 17 attorney advisor. 18 Subject, Omar Rahman, register number 34892-054. 19 Below that in handwriting it appears to read, visit 20 approved, note, "new" warden. 21 And turn to the next page, please. 22 It's a letter dated May 12, 2000, addressed to Lynne 23 F. Stewart, attorney at law, 351 Broadway, Third Floor, 24 New York, New York 10013. 25 Re: Omar Abdel Rahman, federal register number SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6650 4a4esat2 Soliman - cross 1 34892-054. 2 Dear Ms. Stewart, this is in response to your 3 correspondence dated May 9, 2000, wherein you request to have a 4 legal visit with Omar Abdel Rahman on May 19 and May 20, 2000. 5 You also request that your interpreter, Mohammed Yousry, be 6 authorized to accompany you during the visit. 7 The warden has approved your request for a legal visit 8 with Mr. Rahman. Accordingly, you and Mr. Yousry are 9 authorized to visit with Mr. Rahman on May 19 and 20, 2000. 10 For your general information, you may be processed into the 11 institution at 8:30 a.m. on both days and the visits may last 12 until 3:00 p.m. on both days. 13 Finally, for your general information, Constance Reese 14 is the warden at the Federal Medical Center in Rochester, 15 Minnesota, a position she assumed after former warden Phill 16 Wise was promoted to assistant director of the health services 17 division of the Bureau of Prisons in March of 1999. 18 Sincerely, Jeffrey E.E. Toenges, attorney-advisor, and 19 with the signature of Mr. Toenges. And the letter is cc'ed 20 Constance Reese, warden. 21 The next page, your Honor, is a duplicate of letter, 22 hard copy letter -- it's the same letter. I will not read it. 23 And the final page of the exhibit, your Honor, is an 24 envelope addressed to Lynne Stewart from the Federal Bureau of 25 Prisons, Federal Medical Center in Rochester, Minnesota. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6651 4a4esat2 Soliman - cross 1 Your Honor, may we display for the jury Government 2 Exhibit 2653 which is in evidence. 3 THE COURT: Yes. 4 (Government Exhibit 2653 was displayed to the jury) 5 MR. DEMBER: And I'll just read the top two lines, 6 your Honor. They read, notification of Special Administrative 7 Measures, December 10, 1999. 8 And if you could just scroll through the pages, 9 please. 10 Your Honor, may we display for the -- I'm sorry. Your 11 Honor, may we display for the jury Government Exhibit 2662. 12 THE COURT: Yes. 13 MR. DEMBER: Which is in evidence. 14 THE COURT: Yes. 15 MR. DEMBER: And may we just focus in on the top of 16 the document, please, Ms. Griffith. 17 Again, it reads notification of Special Administrative 18 Measures, December 10, 1999. It appears to be another copy of 19 the same document as the previous exhibit, your Honor. 20 May we -- before we put up the next exhibit, may we 21 display -- 22 THE COURT: I'm sorry. The exhibit that you just 23 displayed was 2662? 24 MR. DEMBER: I'm sorry, your Honor. It is 2662. 25 THE COURT: OK. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6652 4a4esat2 Soliman - cross 1 MR. DEMBER: May we display Government Exhibit 2659, 2 which is in evidence. 3 THE COURT: All right. 4 (Government Exhibit 2659 was displayed to the jury) 5 MR. DEMBER: And I will read this exhibit, your Honor. 6 The top indicates it's from Lynne F. Stewart, attorney 7 at law, 351 Broadway, Third Floor, New York, New York 10013. 8 I'll skip down to the date. There's a telephone 9 number and fax number there. 10 The date is May 26, 2000. It's addressed to Paul W. 11 Butler, Assistant United States Attorney, Office of the United 12 States Attorney, Southern District of New York, One Saint 13 Andrew's Plaza, New York, New York 10007. 14 Re: Dr. Omar Abdel Rahman. 15 Dear Mr. Butler, enclosed please find my signed 16 "attorney's affirmation" with regard to Sheikh Omar Abdel 17 Rahman. 18 Very truly yours, Lynne F. Stewart. 19 And I will read the second page of the document. Why 20 don't we turn to the second page. It reads as follows: 21 Attorney affirmation. Lynne Stewart, pursuant to 28 22 U.S.C., Section 1746, hereby affirms under the penalties of 23 perjury the truth of the following: 24 One, I am counsel of record for inmate Omar Abdel 25 Rahman (USMS number 34892-054) and have read the "notification SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6653 4a4esat2 Soliman - cross 1 of Special Administrative Measures" for inmate Omar Abdel 2 Rahman, dated December 10, 2000, and consisting of eight pages. 3 I understand the restrictions contained in that document and 4 agree to abide by its terms, including the fact that I will not 5 patch any calls by inmate Abdel Rahman through to third parties 6 (or otherwise transfer such calls), nor will I allow third 7 persons (other than cleared translators who will be present in 8 my office with me or my cocounsel) to participate in the 9 conversations. I have also instructed the staff in my office 10 that such staff are not to patch any calls by inmate Abdel 11 Rahman through to third parties (or otherwise transfer such 12 calls) nor will such staff allow third persons (other than 13 cleared translators who will be present in my office with me or 14 my cocounsel) to participate in the conversations. I also 15 agree that I will not record any conversations with inmate 16 Abdel Rahman or allow any member of my office or staff to do 17 so. 18 Two, I also understand that during any visits to 19 inmate Abdel Rahman at any prison facilities I shall again 20 employ only cleared translators/interpreters and shall not 21 leave such translator/interpreter alone with inmate Abdel 22 Rahman. Moreover, I shall only be accompanied by translators 23 for the purpose of communicating with inmate Abdel Rahman 24 concerning legal matters. 25 Three, I further understand that neither I nor any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6654 4a4esat2 Soliman - cross 1 member of my office shall forward any mail received from inmate 2 Abdel Rahman to a third person, nor shall I use my meetings, 3 correspondence or phone calls with Abdel Rahman to pass 4 messages between third parties (including, but not limited to, 5 the media) and Abdel Rahman. 6 Four, I understand that the Bureau of Prisons is 7 relying upon my sworn representations as a member of the bar in 8 this affidavit in affording inmate Abdel Rahman the opportunity 9 to meet and/or speak and/or correspond with me and my office 10 and that any violation of these understandings could, among 11 other things, result in further limitation (or even 12 elimination) of inmate Abdel Rahman's ability to contact me or 13 my office. 14 Indicates Lynne Stewart, Esquire, and then signature 15 in the same name, dated May 16, 2000, New York, New York. 16 Your Honor, may we display to the jury Government 17 Exhibit 2652 in evidence. 18 (Government Exhibit 2652 was displayed to the jury) 19 THE COURT: Yes. 20 MR. DEMBER: Which is, your Honor, the same document I 21 just read for the jury. 22 May we display for the jury Government Exhibit 2657 in 23 evidence. 24 THE COURT: Yes. 25 (Government Exhibit 2652 was displayed to the jury) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6655 4a4esat2 Soliman - cross 1 MR. DEMBER: I'll read the first page. On the top it 2 appears to be a fax cover sheet, indicates it's from the law 3 offices of Lynne F. Stewart, 351 Broadway, Suite 300, New York, 4 New York 10012. There appears to be a phone number and fax 5 number. 6 The date indicates it's August 28, 2000. 7 Pages to follow: 15. 8 To: Ahmed Sattar, 718-442-3513, from Lynne F. 9 Stewart. 10 There is nothing on the line that indicates Re, 11 regarding, and below it reads, if you do not receive all these 12 pages, call Tanya. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6656 4A4MSAT3 1 MR. DEMBER: It appears to be the same type of fax 2 cover sheet. I'll read starting on the date line. The date 3 indicates it is August 28, 2000. Pages to follow indicates 15 4 to Abdeen Jabara/Clark, 979-1583, from Lynne F. Stewart. At 5 the very bottom it reads: If you do not receive all these 6 pages, call Tanya. 7 Ms. Griffith turn to the next page, please. 8 Again, it is a fax cover sheet. I'll start on the 9 date line. The date indicates it is 8/28/2000, August 28, 10 2000. Pages to follow indicates 15. To Yousry, 718, and then 11 crossed out are the numbers 396-1418. Written next to that are 12 429-9547. Below that is the name Abdeen Jabara from Lynne F. 13 Stewart, Esq. It reads: If you do not receive all these 14 pages, call Tanya. 15 Ms. Griffith, turn to the next page. 16 It is a letter dated August 3, 2000, addressed to 17 Lynne Stewart, Esq., 351 Broadway, Third Floor, New York, New 18 York 10014. RE: Omar Abdel Rahman. 19 Dear Ms. Stewart, several recent press articles have 20 been brought to my attention which appear to indicate that in 21 or about June of this year you visited Omar Abdel Rahman at the 22 Federal Medical Center in Rochester, Minnesota, and thereafter 23 released a statement (or statements) of inmate Abdel Rahman in 24 violation of the Special Administrative Measures imposed upon 25 him. I enclose copies of those articles as well as a copy of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6657 4A4MSAT3 1 your affirmation indicating your agreement to abide by those 2 conditions. Suffice it to say that the government is extremely 3 concerned that violations of the Special Administrative 4 Measures by persons given access to inmate Abdel Rahman can 5 lead to the loss of life in the United States or abroad. As 6 you are aware, Abdel Rahman was convicted at trial of various 7 terrorism offenses, including soliciting crimes of violence. 8 As you are also no doubt aware, terrorist actions have been 9 carried out in Abdel Rahman's name subsequent to his 10 conviction, including the killing of approximately 60 tourists 11 in Luxor, Egypt in November 1997 and the kidnaping of tourists 12 in the Philippines in the spring of 2000 (copies of several 13 press articles concerning these events are enclosed.) 14 Moreover, the Islamic Group with which Abdel Rahman is 15 affiliated has been officially designated a foreign terrorist 16 organization by the United States. 17 The intent of the Special Administrative Measures is 18 to deprive Abdel Rahman, convicted of terrorism offenses, of 19 communication facilities and equipment. Abdel Rahman has been 20 afforded a right to meet with counsel, which should not be 21 abused, to allow Abdel Rahman to pass messages which, simply 22 put, can get people killed and buildings blown up. 23 This office is recommending to the Office of 24 Enforcement Operations of the Department of Justice that you 25 must execute an amended affirmation recognizing the severity of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6658 4A4MSAT3 1 the consequences of a violation of the Special Administrative 2 Measures before any more legal visits can even be contemplated. 3 I enclose such an affirmation. 4 Very truly yours, Mary Jo White, United States 5 Attorney, Southern District of New York by Patrick J. 6 Fitzgerald, chief, organized crime terrorism unit, 7 212-637-1045. Above that is the signature of Patrick 8 Fitzgerald. 9 It is CC'd to Warden Constance Reese, FMC, Rochester; 10 Jeff Toenges, Esq., FMC Rochester; Michael Brave, Office of 11 Enforcement Operations, Department of Justice. 12 Next page is an attorney affirmation and it reads as 13 follows. 14 THE COURT: Attorney's affirmation. 15 MR. DEMBER: I'm sorry, your Honor? 16 THE COURT: Attorney's affirmation. 17 MR. DEMBER: Attorney's affirmation. 18 Reads as follows: Lynne Stewart, pursuant to 28 19 U.S.C. Section 1746, hereby affirms under the penalties of 20 perjury the truth of the following: 21 1. I am counsel of record for inmate Omar Abdel 22 Rahman (USMS No. 34892-54) and have read the notification of 23 Special Administrative Measures for inmate Omar Abdel Rahman, 24 dated December 10, 1999, and consisting of eight pages. I 25 understand the restrictions contained in that document and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6659 4A4MSAT3 1 agree to abide by its terms, including the fact that I will not 2 patch any calls by inmate Abdel Rahman through to third parties 3 (or otherwise transfer such calls), nor will I allow third 4 persons (other than cleared translators who will be present in 5 my office with me or my cocounsel) to participate in the 6 conversations. I have also instructed the staff in my office 7 that such staff are not to patch any calls by inmate Abdel 8 Rahman through to third parties( or otherwise transfer such 9 calls), nor will such staff allow third persons (other than 10 cleared translators who will be present in my office with me or 11 my cocounsel) to participate in the conversations. I also 12 agree that I will not record any conversations with inmate 13 Abdel Rahman or allow any member of my office or staff to do 14 so. I further specifically understand that the telephone calls 15 shall not be for the purpose of Abdel Rahman presenting 16 statements to the defense team for further dissemination to 17 third parties, including the media. I will only allow the 18 calls to be used for legal discussion between Abdel Rahman and 19 me. 20 I also understand that during my visits inmate Abdel 21 Rahman at any prison facilities, I shall again employ only 22 cleared translators/interpreters and shall not leave such 23 translator/interpreter alone with inmate Abdel Rahman. 24 Moreover, I shall only be accompanied by translators for the 25 purpose of communicating with inmate Abdel Rahman concerning SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6660 4A4MSAT3 1 legal matters. I further specifically understand that the 2 meetings shall not be for the purpose of presenting statements 3 to the defense team for further dissemination to third parties, 4 including the media. I will only allow the meetings to be used 5 for legal discussion between Abdel Rahman and me. 6 3. I further understand that neither I nor any member 7 of my office shall forward any mail received from inmate Abdel 8 Rahman to a third person. Nor shall I use my meetings, 9 correspondence or phone calls with Abdel Rahman to pass 10 messages between third parties (including but not limited to, 11 the media) and Abdel Rahman. I further specifically understand 12 that I shall not broadcast messages for Abdel Rahman directly 13 or indirectly to or through the media, including, but not 14 limited to, messages concerning Abdel Rahman's views -- 15 positive, negative or neutral -- concerning the propriety of 16 violence. I shall not pass any mail received on to any third 17 parties and shall ensure that all mail received is translated 18 by a cleared interpreter and reviewed by me or other cleared 19 counsel. I further understand that if Abdel Rahman wishes to 20 communicate in any way through the media he shall only do so by 21 making a request through the Bureau of Prisons. 22 4. I understand that the Bureau of Prisons is relying 23 upon my sworn representations as a member of the bar in this 24 affidavit in affording inmate Abdel Rahman the opportunity to 25 meet and/or speak and/or correspond with me and my office and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6661 4A4MSAT3 1 that any violation of these understandings could, among other 2 things, result in further limitation (or even elimination) of 3 inmate Abdel Rahman's ability to contact me or my office. I 4 further specifically understand that Abdel Rahman has been 5 convicted of terrorism offenses, including soliciting crimes of 6 violence, and that terrorist actions have been carried out in 7 his name subsequent to his conviction, including the killing of 8 approximately 60 tourists in Luxor, Egypt, in November 1997, 9 and the kidnaping of tourists in the Philippines in the spring 10 of 2000. Moreover, the Islamic Group with which Abdel Rahman 11 is affiliated has been designated a foreign terrorist 12 organization by the secretary of state. I thus understand that 13 a violation of the Special Administrative Measures, including 14 but not limited to, dissemination of messages on behalf of 15 Abdel Rahman can result in violence to persons or property here 16 in the United States or overseas. I specifically understand 17 that the intent of the Special Administrative Measures is to 18 deprive Abdel Rahman, convicted of terrorism offenses, of 19 communication facilities and equipment and that his opportunity 20 to consult with counsel is not to be converted into an 21 opportunity to use communication equipment and facilities for 22 any purpose other than legal consultation. 23 Below that is the name Lynne Stewart, Esq. It is 24 dated August -- the date itself is blank -- 2000, New York, New 25 York. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6662 4A4MSAT3 1 Can we turn to the next page, Ms. Griffith. 2 Your Honor, this is an article, dated Wednesday, June 3 14 -- 4 THE COURT: Before you do that, ladies and gentlemen, 5 there are some newspaper articles here and the newspaper 6 articles are not received for the truth of any of the matters 7 asserted in the articles but solely with respect to the 8 knowledge, intent, and state of mind of Ms. Stewart. 9 MR. DEMBER: Your Honor, this is an article dated 10 Wednesday, June 14, 2000. Its title is: Egypt, Spiritual 11 Chief of Egypt militants Renounces Truce by Esmat Salaheddin. 12 Why don't you go to the next page and the next page, 13 Ms. Griffith. 14 This is another article. It is dated Sunday, June 18, 15 2000. Its title is Egypt interview: Egypt's Moslem Militants 16 Reconsider Truce, by Esmat Salaheddin. 17 The next article is dated Monday, June 19, 2000. The 18 title of the article is: Lawyer: Imprisoned Militant Leader 19 Calls for Reevaluation of Group's Ceasefire, not its 20 cancellation, by Tarek El-Tablawy, Associated Press writer. 21 The next article is dated Friday, June 23, 2000 from 22 the Agence France-Presse. The title of the article is: 23 Egyptian Islamist Leader Renounces Ceasefire. 24 Your Honor, at this time may we display for the jury 25 and also read Government Exhibit 2651, which is in evidence? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6663 4A4MSAT3 1 THE COURT: All right. 2 MR. DEMBER: It is a letter from Lynne F. Stewart, 3 attorney at law, 351 Broadway, Third Floor, New York, New York. 4 It is dated September 1, 2000. It indicates it is via 5 facsimile and regular mail, addressed to Warden Constance 6 Reese, FMC Rochester. P.O. Box 4600, 2110 Center Street, 7 Rochester, Minnesota 55903. RE: Addendum to previous letter 8 RE: Interpreter accompanying attorney visit. Dr. Omar Abdel 9 Rahman, registration No. 34892-054. 10 Dear warden Reese: I am writing to request a legal 11 visit with my client, Dr. Omar Abdel Rahman, on Friday, 12 September 15 and Saturday, September 16, 2000. I will be 13 accompanied by interpreter Mohammed Yousry. 14 It is crucial to an ongoing discussion of his legal 15 problems and the conditions lawsuit we are preparing to file. 16 Please confirm this date with my office. Thank you. 17 Very truly yours, Lynne F. Stewart. And there is a 18 handwritten Lynne F. Stewart slash and I can't read the 19 initials. There is a CC to AUSA Patrick Fitzgerald and Jeff 20 Tsongas, legal department, FMC, Rochester. 21 Next page is a fax cover sheet from the law offices of 22 Lynne F. Stewart. The date is September 1, 2000. Pages to 23 follow is one. To Warden Reese; CC: Jeff Tsongas/encircled 24 AUSA Patrick Fitzgerald, from Lynne F. Stewart, Esq.; RE, 25 Rahman/legal visit. If you do not receive these pages, call SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6664 4A4MSAT3 1 Pat, 625-9696. 2 Your Honor, may we display and read for the jury 3 Government Exhibit 2650 in evidence? 4 THE COURT: Yes. 5 MR. DEMBER: The letterhead indicates it is from the 6 Federal Bureau of Prisons, Federal Medical Center, P.O. Box 7 4600, Rochester, Minnesota. The date is September 11, 2000. 8 Addressed to Lynne Stewart, attorney at law, 351 Broadway, 9 Third Floor, New York, New York 10014. RE: Omar Abdel Rahman. 10 Register No. 34892-054. 11 Dear Ms. Stewart: After a recent legal visit at the 12 Federal Medical Center in Rochester, Minnesota, you made 13 statements to the press that violated the Special 14 Administrative Measures imposed upon Omar Abdel Rahman. I am 15 informed that as a result of your actions, the United States 16 Attorney for the Southern District of New York requested that 17 you execute an amended affirmation before any future legal 18 visits are approved. I understand that as of today, September 19 11, 2000, you have not yet executed the amended affirmation. 20 Accordingly, I am rescinding my previous approval of your legal 21 visit with Omar Abdel Rahman scheduled for September 15 and 16, 22 2000. 23 Consideration for future legal visits will be given 24 after you have executed the required amended affirmation. 25 Sincerely, Constance Reese, Warden. And there is a CC SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6665 4A4MSAT3 1 to Pat Fitzgerald, AUSA, and file. 2 Your Honor, may we display and read to the jury 3 Government Exhibit 2648, which is in evidence? 4 THE COURT: Yes. 5 MR. DEMBER: The top reads: Attorney's affirmation. 6 Lynne Stewart, pursuant to 28 U.S.C. 1746, hereby 7 affirms under the penalties of perjury the truth of the 8 following: 9 1. I am counsel of record for inmate Omar Abdel 10 Rahman (USMS No. 34892-054) and have read the "notification of 11 Special Administrative Measures" for inmate Omar Abdel Rahman, 12 dated March 26, 2001, and consisting of eight pages. I 13 understand the restrictions contained in that document and 14 agree to abide by its terms, including the fact that I will not 15 patch any calls by inmate Abdel Rahman through to third parties 16 (or otherwise transfer such calls), nor will I allow third 17 persons (other than cleared translators who will be present in 18 my office with me or my cocounsel) to participate in the 19 conversations. I have also instructed the staff in my office 20 that such staff are not to patch any calls by inmate Abdel 21 Rahman through to third parties (or otherwise transfer such 22 calls), nor will such staff allow third persons (other than 23 cleared translators who will be present in my office with me or 24 my cocounsel) to participate in the conversations. I also 25 agree that I will not record any conversations with inmate SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6666 4A4MSAT3 1 Abdel Rahman or allow any member of my office or staff to do 2 so. I further specifically understand that the telephone calls 3 shall not be for the purpose of Abdel Rahman presenting 4 statements to the defense team for further dissemination to 5 third parties, including the media. I will only allow the 6 calls to be used for legal discussion between Abdel Rahman and 7 me. 8 2. I also understand that during my visits to inmate 9 Abdel Rahman at any prison facilities, I shall again employ 10 only cleared translators/interpreters and shall not leave such 11 translator/interpreter alone with inmate Abdel Rahman. 12 Moreover, I shall only be accompanied by translators for the 13 purpose of communicating with inmate Abdel Rahman concerning 14 legal matters. I further specifically understand that the 15 meetings shall not be for the purpose of presenting statements 16 to the defense team for further dissemination to third parties, 17 including the media. I will only allow the meetings to be used 18 for legal discussion between Abdel Rahman and me. 19 3. I further understand that neither I nor any member 20 of my office shall forward any mail received from inmate Abdel 21 Rahman to a third person. Nor shall I use my meetings, 22 correspondence or phone calls with Abdel Rahman to pass 23 messages between third parties (including, but not limited to, 24 the media) and Abdel Rahman. I further specifically understand 25 that I shall not broadcast messages for Abdel Rahman directly SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 6667 4A4MSAT3 1 or indirectly to or through the media, including, but not 2 limited to, messages concerning Abdel Rahman's views -- 3 positive, negative or neutral -- concerning the propriety of 4 violence. I shall not pass any mail received on to any third 5 parties and shall ensure that all mail received is translated 6 by a cleared interpreter and reviewed by me or other cleared 7 counsel. I further understand that if Abdel Rahman wishes to 8 communicate in any way through the media, he shall only do so 9 by making a request through the Bureau of Prisons. 10 4. I understand that the Bureau of Prisons is relying 11 upon my sworn representations as a member of the bar in this 12 affidavit in affording inmate Abdel Rahman the opportunity to 13 meet and/or speak and/or correspond with me and my office and 14 that any violation of these understandings could, among other 15 things, result in further limitation (or even elimination) of 16 inmate Abdel's Rahman's ability to contact me or my of