7087 4A7MSAT1 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 7, 2004 8 9:30 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 7088 4A7MSAT1 1 2 (Trial resumed) 3 (In open court; jury not present) 4 THE COURT: Good morning, all. 5 I have a list that was handed to me. 6 MR. BARKOW: Yes, your Honor. Is it the list with 7 just a chart and the three columns? I handed that to counsel 8 and up to Mr. Fletcher. It is the sets of exhibits. When we 9 finished the Yousry search, it is the final set of exhibits. I 10 just put it together so the Court and counsel were aware of the 11 defendants against whom they are being offered and the 12 instructions that we believe should accompany them, and I've 13 given them all that chart to counsel as well. They are from 14 different places, your Honor. Only two of them are on 15 Mr. Morvillo's Yousry search chart and the others are from 16 different places and that's why we put them together in one 17 chart since it is in order, the last set of exhibits that we 18 are intending to present. 19 THE COURT: Mr. Morvillo's chart, the next exhibit was 20 going to be 542. 21 MR. BARKOW: Yes. After we finish Mr. Morvillo's 22 chart, we then would move to this table, and so we are going to 23 finish Mr. Morvillo's chart with -- actually, there is two that 24 are listed on Mr. Morvillo's chart at the very end that we are 25 not doing right now. Mr. Morvillo will finish his chart except SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7089 4A7MSAT1 1 for the last two. Then we will move to the thing that we just 2 passed up this morning. Then we will do those. That chart 3 includes the two at end of Mr. Morvillo's chart. We will do 4 the ones on the chart we passed up this morning and then we 5 will be done. 6 MR. RUHNKE: Just a question. I don't know the answer 7 to it. Is whether 2057, which is Sheikh Rahman's will, is 8 actually in evidence at this point. 9 MR. DEMBER: Your Honor, there is one correction to 10 the chart. 11 THE COURT: Hold on. 12 MR. RUHNKE: Your Honor, I'm informed that it is, your 13 Honor. I'm sorry. 14 MR. TIGAR: Your Honor, may I confer with Mr. Paul? 15 THE COURT: Yes. 16 MR. PAUL: with regard to Exhibit 2028 that's on the 17 chart that's been handed up and served on all counsel this 18 morning, that is a reference to Osama Bin Laden, and once again 19 I would ask your Honor to give the additional instruction you 20 have given in the past with reference to Osama Bin Laden not 21 being a coconspirator in this case, not named in any charge in 22 the indictment that the jury is considering. 23 THE COURT: I will remind them that Osama Bin Laden is 24 not alleged to be a member of any of the conspiracies charged 25 in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7090 4A7MSAT1 1 The reason that I'm pausing is I explained -- the 2 parties didn't ask me, but they agree that I should instruct 3 the jury on 2313-6 with respect to the letter from Mr. 4 Fitzgerald and its enclosures, that is, the letter and the 5 enclosures are not received for the truth of the any of the 6 matters asserted in those documents. And I just wanted to put 7 that into context for the jury. 8 What I had planned to tell the jury is, yesterday I 9 admitted two faxes, Government Exhibits 2313-6 and 2313-8 with 10 certain instructions. And I explained that the faxes are dated 11 August 28, 2000 and include enclosures of a letter from Mr. 12 Fitzgerald with enclosures. I explained that the letter from 13 Mr. Fitzgerald and the enclosures were not admitted for the 14 truth of the matters asserted when I admitted Government 15 Exhibit 2313-8. I should have given you that same instruction 16 with respect to Government Exhibit 2313-6, namely, the letter 17 from Mr. Fitzgerald and the enclosures are not received for the 18 truth of any of the matters asserted in those documents. Is 19 that satisfactory? 20 MR. MORVILLO: Yes, your Honor. 21 MR. PAUL: Your Honor at the time that it was 22 admitted, did you give an instruction that it was not been 23 admitted as to Mr. Sattar? I don't recall. 24 THE COURT: I'll repeat -- I did. I said it is 25 admitted solely with respect to Mr. Yousry and Ms. Stewart. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7091 4A7MSAT1 1 I'll repeat that again, if you want. 2 Then we are up to 542. 3 Let's bring in the jury. 4 MR. DEMBER: Your Honor, just one correction on the 5 chart that Mr. Barkow referred to a few minutes ago and that 6 pertains to Government Exhibit 2610, which is a letter found in 7 the search of Ms. Stewart's office which is apparently written 8 by her. We believe that's come in without any limiting 9 instruction. It is her own statements in the chart, obviously 10 admissions. There should not be an instruction with that 11 exhibit. 12 THE COURT: Anything else? 13 MS. SHELLOW-LAVINE: Your Honor, if we could have a 14 moment to look at Government Exhibit 2610? 15 THE COURT: Absolutely. 16 MS. SHELLOW-LAVINE: Thank you. 17 MR. TIGAR: Yes, your Honor. 2610 is an out-of-court 18 statement of Ms. Stewart and, thus, without more comes in. 19 However, it doesn't refer to any other defendants. Yes, we 20 agree. 21 Let's bring in the jury. 22 (Jury present) 23 THE COURT: Good morning, ladies and gentlemen. It is 24 good to see you all. 25 To begin, ladies and gentlemen, in the course of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7092 4A7MSAT1 1 admitting various exhibits yesterday there were two faxes with 2 enclosures, and I gave instructions on those faxes. That was 3 Government Exhibits 2313-6, and 2313-8. The faxes are dated 4 August 28, 2000. And include enclosures of a letter from Mr. 5 Fitzgerald with enclosures from that letter. And I explained 6 that the letter from Mr. Fitzgerald and the enclosures were not 7 admissible and were not admitted for the truth of any of the 8 matters asserted, and I gave that instruction when Government 9 Exhibit 2313-8 was admitted. I should have given you that same 10 instruction -- and I give it now -- with respect to Government 11 Exhibit 2313-6, namely, the letter from Mr. Fitzgerald and the 12 enclosures are not received for the truth of any of the matters 13 asserted in those documents. I also instructed you yesterday 14 that Government Exhibit 2313-6 is admitted only against 15 Mr. Yousry and Ms. Stewart. 16 MS. BAKER: Your Honor, at this time the government 17 offers into evidence, based on previous testimony, Government 18 Exhibits 525 and 525T, 534 and 534T, 540 and 540T, and 542 and 19 542T. 20 THE COURT: Ladies and gentlemen, these are -- 21 MS. BAKER: Your Honor, these are news articles and 22 their translations which are not offered for their truth. 23 THE COURT: Ladies and gentlemen, these are newspaper 24 articles. I have already instructed you about newspaper 25 articles. None of these exhibits is offered for the truth of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7093 4A7MSAT1 1 any of the matters asserted in the exhibits. All of them are 2 received in evidence, but Government Exhibit 542 is received 3 solely with respects to Counts 2 and 3 of the indictment. 4 (Government's Exhibits 525, 525T 534, 534T 540, 540T, 5 542, 542T received in evidence) 6 MS. BAKER: Your Honor, at this time the government 7 asks to publish Government Exhibit 542 by displaying it to the 8 jury. 9 THE COURT: All right. 10 MS. BAKER: Ms. Griffith, if you would zoom in near 11 the upper left-hand corner, the banner. Thank you. It reads: 12 Al-Hayat Monday 9 October, 2000 issue No. 13725. 13 If you would please display the second page. 14 Your Honor if we would now be permitted to present 15 Government Exhibit 542T by displaying it and reading it to the 16 jury. 17 THE COURT: You mean 525T? 18 MS. BAKER: 542T. 19 THE COURT: All right. 20 MS. BAKER: Beginning with the headline "The Islamic 21 Group" vows to implement Abdel Rahman's fatwah. 22 Cairo "al-Hayat". 23 The Egyptian fundamentalist organization, "The Islamic 24 Group," has vowed to implement a fatwah [religious ruling] 25 issued last week by the leader of the group, Dr. Omar Abdel SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7094 4A7MSAT1 1 Rahman, who is serving a life sentence in a U.S. prison, 2 calling on Muslims to the necessity of "killing the Jews 3 wherever they are found." 4 The group issued a statement yesterday in which it 5 asserted that the Jihad to liberate Palestine "is a religious 6 duty by the consensus of Muslims. A capable Muslim who 7 dissents from it is a sinner and would be subjected to God's 8 wrath." The statement arrest addressed the Muslims: "Today, 9 you are standing at a dangerous crossroad. You should rise to 10 the level of the grave event that threatens your holy places 11 and destroys your existence. Otherwise, do not expect anything 12 from politicians except more sweet words, embellished promises 13 and other rounds of the policies of deception." The statement 14 said "The Islamic nation is free from all the agreements and 15 treaties concluded with the Jews," noting that the Jews 16 themselves "realize that these agreements were concluded behind 17 the back of the Islamic nation and without its approval." 18 The statement stressed that choosing Jihad "is the 19 only option." It said: "The angry uprising of the nation 20 masses is a real and sincere expression of their attitude; and 21 the existing regimes have no chase but to consent to the 22 masses. The choice they have is between the nation's choice of 23 Jihad and the smart talk of politicians who claim that these 24 flagrant violations are the tax of peace. We never had peace 25 with the Jews. They imposed their goals by force and by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7095 4A7MSAT1 1 pursuing a policy of fait accompli to consolidate the 2 occupation." The statement pledged to "fully support the 3 Islamic resistance in all its factions inside Palestine to 4 ensure its continuity and to continue its struggle." 5 MR. MORVILLO: Your Honor, at this time the government 6 offers into evidence Government Exhibit 2313-9. 7 THE COURT: Government Exhibit 2313-9 is received in 8 evidence. 9 (Government's Exhibit 2313-9 received in evidence) 10 THE COURT: Ladies and gentlemen, this document is not 11 offered or received for the truth of any of the statements in 12 the article. 13 MR. MORVILLO: Your Honor, may we publish Government 14 Exhibit 2313-9 to the jury? 15 THE COURT: Yes. 16 MR. MORVILLO: Ms. Griffith, if can you focus in on 17 the top of the -- thank you. 18 2313-9, approved by Mr. Jabara. In handwriting, NYT, 19 10-22-2000. Following up. 20 Ms. Griffith, if you could just slowly scroll through 21 the article. 22 Your Honor, at this time the government offers into 23 evidence Government Exhibit 2313-5. 24 THE COURT: Government Exhibit 2313-5 is received in 25 evidence. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7096 4A7MSAT1 1 (Government's Exhibit 2313-5 received in evidence) 2 THE COURT: Ladies and gentlemen, this document is 3 received solely against Mr. Yousry. 4 MR. MORVILLO: May we publish Government Exhibit 5 2313-5 to the jury, your Honor? 6 THE COURT: Yes. 7 MR. MORVILLO: Ms. Griffith, if you could focus on the 8 top of the document. 9 Government Exhibit 2313-5. Dec. First, 2000, no calls 10 if not signed. 11 Ms. Griffith, if you could scroll through the 12 document. 13 Your Honor, at this time the government offers into 14 evidence Government Exhibit 2313-7. 15 THE COURT: Government Exhibit 2313-7 is received in 16 evidence. 17 (Government's Exhibit 2313-7 received in evidence) 18 THE COURT: Ladies and gentlemen, this is received 19 solely against Mr. Yousry. 20 MR. MORVILLO: May we publish Government Exhibit 21 2313-7 to the jury, your Honor? 22 THE COURT: Yes. 23 MR. MORVILLO: Facsimile cover sheet U.S. Attorney's 24 Office, SDNY One Saint Andrews Plaza New York, New York 10007. 25 From Patrick J. Fitzgerald, chief, organized crime terrorism. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7097 4A7MSAT1 1 Office phone number 212-637-1045. Fax number, 2 212-637-1090/212-637-1099. No. pages 6. Date, January 9, 3 2001. To Ramsey Clark, ESQ, office number 212-475-3232; fax 4 number, 212-979-1583. 5 United States Department of Justice, United States 6 Attorney, Southern District of New York. January 9, 2001, by 7 facsimile, Ramsey Clark, Esq., 36 East 12th Street, New York, 8 New York 10003. RE: Dr. Omar Abdel Rahman. 9 Dear Ramsey, please find attached attorney 10 affirmations for you and Abdeen Jabara to sign containing the 11 changes that I have agreed to. 12 Very truly yours, Mary Jo White, United States 13 Attorney, Southern District of New York, by Patrick J. 14 Fitzgerald, Assistant United States Attorney. Telephone, 15 212-637-1045. 16 Ms. Griffith, if you could just scroll through the 17 last four pages of the exhibit. Actually, can I put this the 18 Elmo. It looks like there is a scanning problem with this one. 19 Your Honor, at this time the government offers into 20 evidence Government Exhibit 2312-43 and 2312-43T. 21 THE COURT: 2312-43 and 2312-43T are received in 22 evidence. 23 Ladies and gentlemen, this was a newspaper article and 24 it is not offered or received for the truth of any of the 25 statements in the article. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7098 4A7MSAT1 1 (Government's Exhibits 2312-43 and 2312-43T received 2 in evidence) 3 MR. MORVILLO: Your Honor, may we publish Government 4 Exhibit 2312-43 to the jury? 5 THE COURT: Yes. 6 MR. MORVILLO: Your Honor, may I now publish and read 7 to the jury Government Exhibit 2312-43T? 8 THE COURT: Yes. 9 MR. MORVILLO: Government Exhibit 2312-43T, page 1 of 10 2. Al-Hayat in Arabic 10 January 2001, P16. U.S. prevents 11 Abdel Rahman from meeting his lawyer in prison. 12 London Al-Hayat. 13 The "defense committee" for Sheikh Omar Abdel Rahman, 14 who is serving a life jail sentence in the United States, has 15 announced that the U.S. authorities informed the Blind Sheikh's 16 lawyer of their decision to cut off all "telephone contact" 17 with him in his jail. 18 The "committee coordinator," Mr. Ahmed Abdel Sattar, 19 said in a statement yesterday that the Assistant Attorney 20 General in New York City, Patrick Fitzgerald, told the Sheikh's 21 lawyer, Lynne Stewart, that she is prohibited from calling or 22 visiting her client after she had held a press conference at 23 Abdel Rahman's request in which she confirmed that the Sheikh 24 had indeed withdrawn his support for the initiative to end the 25 violence in Egypt. He added that Stewart said she had to sign SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7099 4A7MSAT1 1 a "declaration," in which she undertook not to pass on anything 2 from Abdel Rahman because he was forbidden to speak to anyone 3 or issue any opinions in accordance with the decision made by 4 the Attorney General's office in March 1997. 5 Abdel Sattar said that Abdel Rahman, who is regarded 6 as the "spiritual leader" of the Islamic Group organization in 7 Egypt and is in jail for conspiracy to cause explosions in New 8 York in 1995, is not allowed to speak to anyone except his wife 9 in Egypt. He added that U.S. authorities also informed the 10 remaining members of the team of lawyers acting for the Sheikh 11 (in November 2000) that they were also prohibited from visiting 12 or talking to Abdel Rahman unless they signed a declaration to 13 the effect that they would not pass on anything from him. 14 Abdel Sattar said that Abdel Rahman had recently 15 stopped taking food other than what was necessary to keep him 16 alive. He added that the U.S. authorities had withheld his 17 insulin (which is needed by diabetics) and that Abdel Rahman is 18 now suffering from severe emaciation and "as a result he is no 19 longer able to stand up on his feet to pray." 20 Your Honor, the government offers into evidence 21 Government Exhibit 2307-1. 22 THE COURT: Government Exhibit 2307-1 is received in 23 evidence. 24 (Government's Exhibit 2307-1 received in evidence) 25 THE COURT: Ladies and gentlemen, this exhibit is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7100 4A7MSAT1 1 received solely against Mr. Yousry and Ms. Stewart. 2 MR. MORVILLO: Your Honor, as per agreement with 3 counsel, may I publish a paragraph from Government Exhibit 2300 4 S, which is paragraph 2A2? 5 THE COURT: Yes. 6 MR. MORVILLO: Government Exhibit 2307-1 was found on 7 the black chair inside a composition style notebook labeled 8 "Omar Abdel Rahman legal notes." 9 Your Honor, may I now display Government Exhibit 10 2307-1 to the jury? 11 THE COURT: Yes. 12 MR. MORVILLO: Fax line at the top reads: From Lynne 13 Stewart, Esq. Fax No. 212-625-3939. July 13, 2001 12:41 p.m., 14 P1. Facsimile, Lynne F. Stewart, 351 Broadway, Third Floor, 15 New York, New York, 10013. 212-625-9696. To Lynne Stewart, 16 from Lynne F. Stewart, date July 13, 2001. Subject, as 17 discussed. Pages, 3. Comments: Lynne, I can't find Scudder's 18 phone number. Do you know it? 19 Second page of the document has the same fax line as 20 the first page and if you could just scroll through this page 21 of the document, Ms. Griffith. Again, the third page of the 22 document has the same fax line as the first two pages. If you 23 could scroll through the document. The end is signed Lynne 24 Stewart, dated May 7, 2001, New York, New York. 25 Your Honor, at this time the government offers into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7101 4A7MSAT1 1 evidence Government Exhibit 2406-2 and 2406-2A. 2 THE COURT: Government Exhibits 2406-2 and 2406-2A 3 received in evidence. 4 (Government's Exhibits 2406-2 and 2406-2A received in 5 evidence) 6 THE COURT: Ladies and gentlemen, these exhibits are 7 received solely against Mr. Yousry and Ms. Stewart, and 8 Government Exhibit 2406-2A is not offered or received for the 9 truth of any of the matters asserted therein. 10 MR. MORVILLO: Your Honor, may I publish Government 11 Exhibit 2406-2 to the jury? 12 THE COURT: Yes. 13 MR. MORVILLO: Ms. Griffith, if I could just put it on 14 the Elmo. 15 Your Honor, may I hold it up to the jury? 16 THE COURT: Yes. 17 MR. MORVILLO: Your Honor, may I now publish 18 Government Exhibit 2406-2A to the jury? 19 THE COURT: Yes. 20 MR. MORVILLO: Your Honor, at this time the government 21 offers into evidence Government Exhibit 2415-9 and 2405-6. 22 THE COURT: Government Exhibits 2415-9 and 2405-6 are 23 received in evidence. 24 (Government's Exhibits 2415-9 and 2405-6 received in 25 evidence) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7102 4A7MSAT1 1 THE COURT: Subject to limiting instructions, let me 2 go back. Government Exhibit 2415-9 is received solely against 3 Mr. Yousry and Ms. Stewart and it is not received for the truth 4 of any of the matters asserted in the document. Government 5 Exhibit 2405-6 is received solely against Mr. Yousry and it is 6 not received for the truth of any of the statements in the 7 document. 8 MR. BARKOW: Your Honor, at this point the government 9 requests permission to publish to the jury what is in evidence 10 as Government Exhibits 2070 and 2070TA, which were found during 11 the Sattar search. 12 THE COURT: Government Exhibits 2070 and 2070A are 13 received in evidence, but not for the truth of any of the 14 matters asserted in the documents. 15 MR. BARKOW: Your Honor, just to be clear, it is 16 2070TA rather than 2070A. 17 THE COURT: All right Government Exhibit 2070TA 18 received in evidence, but not for the truth of the any of the 19 matters asserted in the document. 20 (Government's Exhibits 2070 and 2070TA received in 21 evidence) 22 MR. BARKOW: May I publish them, your Honor? 23 THE COURT: Yes. 24 MR. BARKOW: This is Government Exhibit 2070. If 25 Ms. Griffith could put on the screen Government Exhibit 2070TA. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7103 4A7MSAT1 1 Sermon by Sheikh Omar Abdel Rahman in brackets. 2 Thanks to be God, prayer and peace be upon the 3 messenger of God. Dear brethren, peace, mercy and blessings of 4 God be upon you. 5 Now then, your duty to aid is an obligation and to 6 come to the assistance of any Moslem who has been taken 7 prisoner by the infidels, the enemies of Islam, the duty of 8 such assistance has been necessitated by religion. Isn't it so 9 that an Islamic army of 70,000 Moslems had moved from Baghdad 10 towards the land of the Turks in Ammouriah, for the simple 11 reason that they had heard the scream of a woman thousands of 12 miles away? Didn't that army go to the assistance of that 13 woman? Didn't they move by [al-Mu'tassem, Islamic warrior of 14 old] to rescue that woman? And his answer to her scream was 15 not in talking or in writing, but with an army which destroyed 16 the fortresses of the enemies? 17 Isn't the legitimate rule, that if a Moslem has been 18 captured, then Jihad becomes an individual duty upon the whole 19 Islamic nation to save him? Isn't it precisely what the 20 scholars taught in their sermons, if a Moslem has been captured 21 at one end of the earth, doesn't it become the duty of the 22 Moslems at the other end of the interrogate to cooperate to 23 free him? Subsequently, his rescue becomes the duty of all 24 Moslems. 25 The Sheikh is calling on you, morning and evening, oh, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7104 4A7MSAT1 1 Islamists; oh, Moslems. And he finds no reply or 2 acknowledgement. It is a duty upon all Moslems around the 3 world to free the Sheikh, and to rescue him from his jail, and 4 that matter is an obligation and a responsibility. Therefore, 5 you have to pay the debt, and to fulfill the trust, otherwise, 6 the whole Islamic nation is a sinner. What about the Sheikh's 7 situation? An Islamic scholar, and his case should carry more 8 weight and momentum, and the obligation becomes a necessity, 9 and the sin becomes greater. 10 Dear brethren and Moslems around the world, the 11 American government has seen in my imprisonment and my being in 12 its grip, the opportunity which it has fully seized in order to 13 smear the Moslem's pride into the ground, and to tarnish the 14 Moslem's dignity and pride. 15 Consequently, they are besieging me, not only 16 economically, but they are also besieging me morally for they 17 deny me the interpreter and the reader, the radio and the 18 recorder. I do not listen to any foreign or domestic news. 19 They have confined me to a solitary prison. It is not 20 permitted to anyone who speaks Arabic to come to me. I then 21 remain the whole day, month, and year without talking to 22 anyone, or anyone talking to me. And if it wasn't for the 23 reading of the Quran, I would have been afflicted with several 24 mental and psychological maladies. Also, as a way of besieging 25 me is the fact that I am day and night under camera SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7105 4A7MSAT1 1 surveillance, including the exposure of the genitals during 2 washing and during restroom times. Moreover, they have 3 assigned officers to constantly watch me, and they take 4 advantage of my blindness to accomplish their despicable 5 purposes. They strip search me. I take off my clothes until I 6 become totally naked, like the day I was born, and then they 7 look at my genitals and my rear end. And what are they looking 8 for? For drugs, for explosives, or something like that. And 9 all that takes place before and after each visit. This offends 10 me a great deal, and makes me extremely embarrassed. But, as I 11 said, it is the opportunity upon which they seize, to smear the 12 dignity and the pride of the Moslem in the ground. 13 They prevent me from the Friday prayer, the group 14 prayer, and the holidays, and from any contact with the 15 Moslems. I am deprived of all that. They submit false 16 justifications and they invent baseless excuses. They 17 intensely mistreat me. They do not respond to my requests, and 18 they do not bring -- they do not supply me with my needs. And 19 I keep pounding the door for long periods of time, such as six 20 hours, and no one responds to me. Whereas they listen quickly 21 to the knocks of other prisoners and their demands are swiftly 22 fulfilled. They neglect my personal needs for months, such as 23 shaving and the cutting of the fingernails. Also, they make me 24 wash my underwear. I wash it with soap, I rub and scrub them 25 and I hang them to dry and I find great difficulty in doing SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7106 4A7MSAT1 1 that. Moreover, I fear the danger of the situation, for they 2 are definitely killing me. They will eventually kill me, 3 particularly because I am in isolation from the whole world. 4 No one observes what they are doing to me in eating or 5 drinking. They could employ on me a slow way of killing. They 6 could surreptitiously put poison in the food, the drink, or the 7 injections, or they could give me a dangerous or expired drug, 8 or they would give me a deadly dose of drugs, which could lead 9 to insanity, especially that I do smell ugly odors emanating 10 from the floor which is above me, accompanied by a continuous 11 whispering sound, like the sound of an old air conditioner, 12 also the sounds of knocks and pounds, like the sounds of 13 explosives and bombs, continuously, for hours, day and night. 14 Then they would invent groundless excuses and the baseless 15 reasons for the cause of my death. Do not accept what they 16 claim. They excel in lies. They could also create a moral 17 harm. They can create it. They can make it up and fabricate 18 pictures, moral harm. It is expected of them and you must be 19 alert to that. 20 America is working on the liquidation of the scholars 21 who are saying the truth everywhere. They have suggested to 22 their myrmidons in Saudi Arabia, and they imprisoned Sheikh 23 Sifr al-Hawali and Sheikh Salman al-Oudah and all the speakers 24 of the truth, and similarly, Egypt has done all the same thing. 25 Moreover, all the Quranic readings about those, the Jews and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7107 4A7MSAT1 1 the Christians, yet, we forget or we claim to forget what was 2 said: "Nor will they cease fighting you until they turn you 3 back from your faith if they can." "Never will the Jews or 4 Christians be satisfied with thee unless thou follow their form 5 of religion." "How (can there be such a league) seeing that if 6 they get an advantage over you, they respect not in you the 7 ties either of kinship or of covenant? With (fair words from) 8 their mouths they entice you, but their hearts are averse from 9 you, and most of them are rebellious and wicked." 10 "The signs of Allah have they sold for a miserable 11 price, and (many) have they hindered from his way, evil indeed 12 are the deeds they have done." "In a believer they respect not 13 the ties either of kinship or of covenant. It is they who have 14 transgressed all bounds." "If they were to get the better of 15 you, they would behave to you as enemies and stretch forth 16 their hands and their tongues against you for evil, and they 17 desire that ye should reject the truth." "Quite a number of 18 the people of the book wish they could turn you (people) back 19 to infidelity after ye have believed. From selfish envy, after 20 the truth hath become manifest unto them." "It is never the 21 wish of those without faith among the People of the Book, nor 22 the Pagans, that anything good should come down to you from 23 your lord. 24 Those are the ones who are fighting any Islamic 25 awakening in the whole world. They work on spreading in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7108 4A7MSAT1 1 whole earth the unlawful gains, the adultery, and other various 2 kinds of corruption. Oh. You Moslems everywhere, sever the 3 ties of their nation, tear them apart, ruin their economy, 4 instigate against their corporations, destroy their embassies, 5 attack their interests, sink their ships, and shoot down their 6 airplanes. Kill them in land, at sea, and in the air. Kill 7 them wherever you find them; take them, surround them and lie 8 in ambush for them everywhere. Fight those infidels, treat 9 them with brutality, fight them. 10 "Fight them, and Allah will punish them by your hands, 11 and cover them with shame, help you (to victory) over them, 12 heal the spirits of the believers, and still the indignation of 13 their hearts." And whoever could do anything, let him cast a 14 stone on them, as do the awakened children of Hamas. 15 I have searched for peace, and I could not find it. 16 Therefore, bloodshed guarantees peace. The podiums have 17 exhausted their roles, and it is time for the role of weapons, 18 and it was said: "Whoever is seeking the rights would not find 19 better than the sword to reveal such rights." Dear Brethren, 20 if they kill me, and they are certainly going to, arrange my 21 funeral, and send my body to my people, but, do not let my 22 blood go in vain, instead, avenge my death, in the most vicious 23 and rigorous way. Remember a brother of yours, who said the 24 world of truth, and who was killed for the sake of God. 25 With these few words I leave you my will. May God SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7109 4A7MSAT1 1 bless every step you make, bless your work, protect you, guide 2 you, facilitate matters for you, and may God's peace, mercy and 3 blessings be with you. 4 MS. BAKER: Your Honor, the government now offers a 5 stipulation marked as Government Exhibit 1321. 6 THE COURT: Government Exhibit 1321 received in 7 evidence. 8 MS. BAKER: May I display and read it to the jury? 9 THE COURT: Yes. 10 MS. BAKER: The parties hereby stipulate and agree 11 that, if called as a witness at trial, Gerard Francisco, who 12 works as a legal administration specialist for the United 13 States Attorney's Office, would testify as follows: 14 1. He made a CD containing an excerpt of one recorded 15 telephone call, which is in evidence as Government Exhibit 16 1231. 17 2. To excerpt each call, he started with the audio 18 file of the call, in .VOC format, on the DVD prepared by Scott 19 Kerns. The recorded call in evidence as Government Exhibit 20 1231 is on the DVD in evidence as Government Exhibit 1000. 21 3. Using a computer and a program that is capable of 22 making exact copies of .VOC files, Mr. Francisco made an exact 23 copy, in .VOC format, of specified portions of Government 24 Exhibit 1231 onto the CD-R marked as Government Exhibit 1231A. 25 Agreed to and stipulated and it is signed by all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7110 4A7MSAT1 1 parties and their counsel. And it is dated September 28, 2004. 2 Your Honor, on the basis of that stipulation, the 3 government offers into evidence the CDR marked as Government 4 Exhibit 1231A. 5 THE COURT: Government Exhibit 1231A received in 6 evidence. 7 MS. BAKER: Your Honor, at this time we would ask to 8 present the recorded conversation which is on Government 9 Exhibit 1231A by playing the recording for the jury while 10 displaying the corresponding transcript, which is Government 11 Exhibit 1231X. And we offer Government Exhibit 1231X as an aid 12 to the jury. 13 THE COURT: Government Exhibit 1231X is received as an 14 aid to the jury in listening to the recording. 15 MS. BAKER: Your Honor, we would ask that you would 16 ask the jurors at this time to please put on the headsets with 17 the dot facing out and turn them on. 18 THE COURT: Ladies and gentlemen, put on your 19 headsets, dot facing out. 20 MS. BAKER: Your Honor, for the record, this is a call 21 on September 24, 2001, at 5:38 p.m. 22 (At this point, Government Exhibit 1231X in evidence, 23 displayed and played to the jury) 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7111 4a7esat2 1 THE COURT: Ladies and gentlemen, you can take off 2 your headsets. Turn them off, please. 3 MR. TIGAR: Your Honor, we'll have an application to 4 make at the break. 5 THE COURT: All right. 6 MR. BARKOW: Your Honor, at this point the government 7 requests permission to publish to the jury what is in evidence 8 as Government Exhibit 2028 from the Sattar search and 2405-6, 9 which is in evidence, from the Yousry search. 10 THE COURT: All right. Government Exhibits 2028 and 11 2405-6 are received in evidence not for the truth of any of the 12 matters asserted in the exhibits. 13 (Government's Exhibits 2028 and 2405-6 received in 14 evidence) 15 THE COURT: Government Exhibit 2028 is received solely 16 against Mr. Sattar and Government Exhibit 2405-6 is received 17 solely against Mr. Yousry. 18 I also remind you, ladies and gentlemen, that Osama 19 bin Laden is not alleged to be a member of any of the 20 conspiracies that are charged in this case. 21 All right. 22 MR. BARKOW: Your Honor, may I read Government 23 Exhibit 2028. 24 THE COURT: Yes. 25 MR. BARKOW: Sons of jailed Egyptian cleric join SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7112 4a7esat2 1 bin Laden terrorist network, November 8, 1998. Web posted at 2 6:56:00 p.m. EST, 2356GMT. 3 From correspondents Peter Bergen and Henry Schuster. 4 Washington, CNN - Two sons of an Egyptian cleric 5 convicted of plotting terrorist attacks in New York City have 6 joined the terrorist organization of Osama bin Laden, which is 7 suspected of carrying out deadly bombings against two US 8 embassies in East Africa, CNN has learned. 9 Sheikh Omar Abdel Rahman, serving a life sentence in a 10 federal prison, also has written a will calling on his sons to 11 seek revenge against the United States, according to sources 12 who have seen it. 13 The ties between Abdel Rahman and bin Laden are the 14 subject of an investigative report on Sunday's "NewsStand: CNN 15 and Time" at 10:00 p.m. EST. 16 In 1996 Abdel Rahman and nine coconspirators were sent 17 to prison for plotting to bomb the United Nations, FBI 18 headquarters, two tunnels and a bridge connecting New Jersey 19 with Manhattan, all in one day. Authorities believe the group 20 was also involved in the 1993 bombing of the World Trade Center 21 that killed six people and injured more. 22 And actually, Miss Griffith, if you could go to the 23 top of this page before you scroll to the next page. And at 24 the top, the header reads, CNN, Sons of jailed Egyptian cleric 25 join bin, page 1 of 3. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7113 4a7esat2 1 If we could have the next page, which is the back of 2 the original. 3 CNN transcripts, page 10 of 24. 4 Laden to enlarge his activities and to turn more to 5 violence. 6 Bergen: Also at the May conference two other 7 important players not shown in the photo, the sons of this man, 8 Sheikh Omar Abdel Rahman. Rahman's spiritual followers blew up 9 the World Trade Center in 1993 and he was convicted of 10 inspiring plans for a terrorist spree in New York. 11 CNN has learned that Sheikh Rahman has written his 12 will. According to those who have seen the will, it urges his 13 sons to seek revenge on the United States. 14 CNN has also learned that the sons, Omar (phonetic) 15 and Asim (phonetic) have now joined up with bin Laden. Ismail 16 Khan spoke to one of them at a press conference. 17 Khan: He said that he would, you know, follow into 18 the footprints of his father and he would continue the jihad. 19 Bergen: Now, at this press conference did Osama 20 bin Laden imply that there was going to be some kind of violent 21 actions shortly? 22 Khan: Yes. I mean, this thing still boggles my mind. 23 You know, he spoke of some good news in the weeks ahead. 24 Bergen: Then three months later, according to the US 25 government, Osama bin Laden struck. On a Friday morning in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7114 4a7esat2 1 August, suicide bombs hit the US embassies in Kenya and 2 Tanzania. At least 224 people died. Thousands more were 3 injured. 4 According to a spokesman, bin Laden denies any 5 involvement in the bombings. He also declined an interview 6 request from CNN. It took a lucky break at this Pakistani 7 airport to begin unraveling what is now called a terror 8 conspiracy." 9 A badly forged passport provided the first clues about 10 the bombers. One of the men now charged, Mohammed Odeh, left 11 Kenya just hours before the bombings and tried to enter 12 Pakistan with the false passport. 13 Mushahid Hussain, Pakistani Minister of Information: 14 And I must say that for once our immigration authorities were 15 very.... 16 Now, your Honor, may the government publish what is in 17 evidence as Government Exhibit 2405-6. 18 THE COURT: All right. And, again, ladies and 19 gentlemen, this is being introduced solely against Mr. Yousry 20 and it is not for the truth of any of the matters asserted. 21 MR. BARKOW: And if Miss Griffith could just scroll 22 through these pages. 23 THE COURT: All right. Ladies and gentlemen, it's 24 11:00 so it's time for our midmorning break. 25 Please remember my continuing instructions. Please SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7115 4a7esat2 1 don't talk about this case at all. Please remember to keep an 2 open mind until you've heard all of the evidence, I've 3 instructed you on the law and you go to the jury room to begin 4 your deliberations. Have a nice a break. 5 (Recess) 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7116 4a7esat2 1 (In open court; jury not present) 2 MR. TIGAR: Your Honor, I have omitted to ask until I 3 saw it on 1231A for the bin Laden instruction and for an 4 instruction that none of Ms. King's statements are offered for 5 the truth. 6 THE COURT: Yes. Unless ... 7 MR. TIGAR: So I'm asking that the Court give that 8 instruction when the jury returns. 9 THE COURT: Yes. Yes. 10 MR. BARKOW: Your Honor, just -- by "the bin Laden 11 instruction," would that be a repetition of the instruction the 12 Court just gave to Osama bin Laden? 13 THE COURT: Yes, it would be. 14 MR. BARKOW: OK. 15 THE COURT: I will tell them with respect to the 16 telephone recording, none of the statements by Ms. King can be 17 considered for the truth of any of the matters asserted by 18 Ms. King. And I also remind you that Osama bin Laden is not 19 alleged to be a member of any of the conspiracies alleged in 20 this case. 21 MR. TIGAR: For the note-taking jurors, your Honor, 22 that is 1231A. 23 MR. BARKOW: Your Honor, I think it's 1231X. 24 MR. TIGAR: I'm sorry. 25 MR. BARKOW: Am I wrong? The recording is A, the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7117 4a7esat2 1 transcript is X, so actually Mr. Tigar is correct. The thing 2 that is in evidence is A. 3 THE COURT: Isn't X also in? 4 MR. BARKOW: Well, X was an aid for the jury. 5 MR. TIGAR: Well -- 6 THE COURT: You mentioned notes. I should tell you, 7 the jurors take different amounts of notes. Mr. Fletcher keeps 8 the jurors -- Mr. Fletcher keeps the jurors' legal pads as 9 necessary. 10 MR. TIGAR: The reason I mentioned it, your Honor, 11 because the instruction doesn't come immediately before the 12 exhibit, the jurors who do take notes would benefit from that, 13 in our view. 14 THE COURT: That's fine. This is a convenient time 15 because when the government -- it looks as though the 16 government will be finished before we break for the day at 17 1:00. 18 MR. BARKOW: That's correct, your Honor. Most of the 19 these remaining exhibits are one page, actually. 20 THE COURT: So what I plan to tell the jury, based 21 upon yesterday's discussion, is that -- what I usually tell the 22 jurors when the government rests, the government has rested, 23 that concludes the portion of the trial in which the government 24 is given the opportunity to present witnesses and exhibits and 25 defendants are given the opportunity to cross-examine. We're SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7118 4a7esat2 1 going to take a break now and we're going to resume on 2 Wednesday morning at 9:30 a.m. And then I intend to give my 3 regular instructions with increased vigor. 4 Sometimes if we were moving directly to the 5 defendant's case, I would tell the jury that the defendants 6 have no obligation to present any evidence or call any 7 witnesses but they may, if they wish. I'm not inclined -- I 8 usually do that before the defendants even say that they are 9 not going to present a case or present a case. I think that 10 the better time to give that instruction is Wednesday morning, 11 Wednesday morning rather than now. I'll just give the jury my 12 regular instructions. 13 MR. RUHNKE: We agree with that, your Honor. 14 THE COURT: OK. 15 (Recess) 16 THE COURT: In view of the issue Mr. Ruhnke raised 17 about the state of the admission of the will, I've asked the 18 government to make sure to keep an updated exhibit list and 19 make sure it gets circulated to the parties so that if the 20 defendants had any differences, they would be brought to our 21 attention promptly. My recollection was that there were two 22 versions of a will found in two separate places, right? 23 MR. BARKOW: Yes, your Honor. It's 2057, which is 24 from the Sattar search, and 2637, I believe, is from the 25 Stewart search. And it's my belief that both are in evidence, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7119 4a7esat2 1 because after the -- oh, not yet. The one from the Sattar 2 search is in evidence because after the Court ruled that that 3 was admissible, we offered it shortly thereafter. 4 THE COURT: And 2637 is coming up? 5 MR. DEMBER: Yes, your Honor. 6 THE COURT: You say it's your recollection. Is that 7 also the exhibit -- 8 MS. SHELLOW-LAVINE: Your Honor, I have been 9 conferring regularly with the government about their exhibit 10 list and we have traded differences. Yes, that also is 11 reflected in my notes. 12 THE COURT: Great. Thank you. 13 OK. Are you ready to bring the jury? All right. 14 Could I ask another question as long as we're -- was 15 1230X ever offered or received? I had been keeping track. 16 Please, Mr. Fletcher, one moment please. 17 MS. BAKER: Your Honor, our records show that it was 18 received on July 13th. 19 MS. SHELLOW-LAVINE: That is consistent with my 20 records as well, your Honor. 21 THE COURT: Right. It was never published to the 22 jury? 23 MS. BAKER: Yes, it was, September 23rd. 24 THE COURT: Oh, OK. Thank you. OK. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7120 4a7esat2 1 (In open court; jury present) 2 THE COURT: Ladies and gentlemen, one of the exhibits 3 that was received before the break was a telephone recording, 4 1231A, which has been heard. None of the statements on the 5 recording by Ms. King can be considered for the truth of the 6 matters asserted by Ms. King. 7 And I also remind you that Osama bin Laden is not 8 alleged to be a member of any of the conspiracies alleged in 9 this case. All right? 10 Mr. Dember. 11 MR. DEMBER: Your Honor, at this time the government 12 moves into evidence Government Exhibits 2614 and 2639. 13 THE COURT: All right. Government Exhibits 2614 and 14 2639 are received in evidence but solely against Ms. Stewart. 15 And they are received not for the truth of any of the matters 16 asserted in the exhibits. 17 (Government's Exhibits 2614 and 2639 received in 18 evidence) 19 THE COURT: All right. 20 MR. DEMBER: Your Honor, at this time may we publish 21 to the jury and read Government Exhibit 2614, which was found 22 during the search of Ms. Stewart's office? 23 THE COURT: Yes. 24 MR. DEMBER: In the upper right-hand corner it reads 25 CNN, and then One CNN Center, Box 105366, Atlanta, Georgia, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7121 4a7esat2 1 30348-5366, 404-827-1500. 2 November 18, 1998. Lynne Stewart, 21 Warren Street, 3 New York, New York 10007. 4 Dear Lynne, thank you for taking the time to talk with 5 me last night. I am sending along the tape of our segment on 6 Osama bin Laden that aired on NewsStand last week. As we 7 talked about last night, there are several issues arising out 8 of that report which we wish to raise with your client, Sheikh 9 Omar Abdel Rahman. These include the issue of whether he feels 10 that his sons are in any danger from the US government since 11 they are now with bin Laden. Of course, we are also interested 12 in the Sheikh's opinion of bin Laden and whether he has met 13 Mr. Bin Laden. For the record, I asked the Bureau of Prisons 14 today for permission to interview the Sheikh and was refused. 15 You raised the issue of the names of the Sheikh's two 16 oldest sons. Any insight you can provide on this will be most 17 appreciated. And you can imagine that we are interested in 18 hearing more from the Sheikh about his will. 19 I look forward to speaking with you after you have had 20 a chance to view the report. We are committed to fair and 21 balanced reporting -- and as part of that, it is important we 22 are able to reflect what the Sheikh himself may have to say. I 23 hope that we are able to do so. 24 Yours sincerely, Henry Schuster, senior producer. 25 PS, would you be comfortable sharing the agreement you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7122 4a7esat2 1 were asked to sign by the Bureau of Prisons that limits what 2 you are allowed to say? I will be most interested in reading 3 that. 4 Your Honor, at this time may we publish and read to 5 the jury Government Exhibit 2610, which was also found during 6 the search of Ms. Stewart's offices. 7 THE COURT: Yes. Government Exhibit 2610 is received 8 in evidence, and this document is received only against 9 Ms. Stewart. 10 MR. DEMBER: On the top it reads, Lynne F. Stewart, 11 attorney at law, 21 Warren Street, Suite 3E, New York, New York 12 10007. And there is a telephone and a fax number there. 13 Below that reads Lynne F. Stewart and Jeffrey S. 14 Stewart and is dated November 20, 1998. Addressed to Mr. Henry 15 Schuster, senior producer, One CNN Center, PO Box 105366, 16 Atlanta, Georgia, 30348-5366. Via fax, 404-827-4443. 17 Re Sheikh Omar Abdel Rahman, inmate reg. number 18 34892-054. 19 Dear Henry, I received the tape, but due to my usual 20 hectic schedule, I probably will not get to watch it until 21 weekend. We had discussed the issue of your directly 22 communicating with the Sheikh, and both Ramsey Clark and myself 23 would appreciate if you can detail the questions that you want 24 him to address. 25 I enclose the copy of the restrictions under which we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7123 4a7esat2 1 are forced to operate. We are, however, considering the 2 options. I will be in touch with you on Monday. There will be 3 another call with the Sheikh on Friday, November 27. 4 Sincerely, Lynne F. Stewart. 5 Your Honor, may we now publish for the jury and read 6 to the jury Government Exhibit 2639, which was also found in 7 the search of Ms. Stewart's offices. 8 THE COURT: Yes, 2639 in evidence. And, again, this 9 is received only against Ms. Stewart and not for the truth of 10 any of the matters asserted. 11 OK. 12 MR. DEMBER: Miss Griffith, can we focus on the very 13 top of the document, please. 14 The very top reads, from CNN to Lynne Stewart. Date, 15 11/24/98. Time, 10:51:56 a.m., page 263. 16 Below that it says CNN, One CNN Center, Box 105366, 17 Atlanta, Georgia, 30348-5366, 404-827-1500. 18 Impact, CNN on time on special assignment, 19 November 24, 1998. 20 Lynne Stewart, 21 Warren Street, New York, New York 21 10007. 22 Dear Lynne, thanks for your note Friday. I look 23 forward to your reaction after watching the tape and giving me 24 any further information on the name of the Sheikh's two oldest 25 sons. I have compiled a list of questions for the Sheikh, some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7124 4a7esat2 1 of which grow out of our report. I don't know how many you 2 will be able to convey to him in your conversation Friday, but 3 I am hoping we can include his responses in one of our 4 forthcoming reports, especially concerning Osama bin Laden, his 5 sons and his will, which was distributed in Afghanistan 6 recently. And of course the whole issue of these prison 7 restrictions is something that is a story in itself. 8 Here are my questions for the Sheikh: 9 Do you feel that you have been unjustly convicted? 10 Have you received adequate medical treatment in 11 prison? 12 Are you allowed to study Koran and pray when you wish? 13 Can you describe your imprisonment? 14 Are you frustrated that you are not allowed to give 15 interviews? 16 Please tell us your opinion of Osama bin Laden. 17 Have you ever had the opportunity to meet him? 18 Do you agree with his fatwah that calls for a jihad 19 against all Americans? 20 Do you feel your two oldest sons are in any danger 21 from the United States by being so close associated with Osama 22 bin Laden? 23 Please tell us why you felt it necessary to issue your 24 will. 25 In it, you call on your sons and followers to "take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7125 4a7esat2 1 revenge for whoever kills me (Sheikh Rahman). Don't let my 2 blood go in vain." Are you calling for violent acts against 3 the American government or against Americans? 4 Do you feel that Egypt is any closer to becoming an 5 Islamic state? 6 Do you support the assassination of President Mubarak, 7 as some have charged? 8 Lynne, you mentioned Khalid Ibrahim in our recent 9 conversation. Do you think the government is targeting him for 10 his links to the Sheikh -- or are they also pushing him about 11 Osama bin Laden -- and the rest is cut off. 12 Your Honor, at this time may we publish alongside that 13 exhibit, which was just Exhibit 2639, Government 14 Exhibit 2415-9, which is now in evidence and which was found 15 during the search of Mr. Yousry's home? 16 THE COURT: Yes. 17 MR. DEMBER: Thank you, Ms. Griffith. 18 Your Honor, at this time the government moves into 19 evidence Government Exhibits 2637 and Exhibit 2638. 20 THE COURT: All right. Government Exhibits 2637 and 21 2638 are received in evidence. 22 (Government's Exhibits 2637 and 2638 received in 23 evidence) 24 THE COURT: These exhibits are received solely against 25 Ms. Stewart and they are received not for the truth of any of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7126 4a7esat2 1 the matters asserted in the exhibits. 2 MR. DEMBER: May I publish for the jury -- may we 3 publish for the jury, your Honor, and read to the jury 4 Government Exhibit 2638, which was found during the search of 5 Ms. Stewart's offices. 6 THE COURT: Yes. 7 MR. DEMBER: In the name of Allah, the most gracious 8 most merciful. 9 Fatwah from the Sheikh Dr. Omar Abdel Rahman. 10 America is working hard to get rid of the scholars who 11 say the truth everywhere. It revealed to its jailers in Saudi 12 Arabia to imprison Sheikh Safar al-Hawali and Sheikh Salman 13 al-Awdah and everybody that says the truth, and also in Egypt. 14 The Koranic statements told us about those Jews and Christians, 15 but we forget, or we like to forget. Allah, the most high, 16 said, "And they will never cease fighting you until they turn 17 you back from your religion if they can." 18 Oh Muslims everywhere. 19 Destroy their country and make it into pieces. Ruin 20 their economy, burn their companies, destroy their interests, 21 drown their ships, shoot down their airplanes, kill them on 22 earth, in the sea or in the sky, kill them everywhere you find 23 them, take them prisoners, surround them and ambush them in any 24 way you can. Kill those infidels. (From the Koran) "Let them 25 find harshness in you." "Fight against them so that Allah will SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7127 4a7esat2 1 punish them by your hand and disgrace them and give you victory 2 over them and heal the breasts of a believing people." 3 Your brother, Omar Abdel Rahman, from the American 4 prison. 5 Your Honor, may we publish for the jury and also read 6 Government Exhibit 2637, which was also found during the search 7 of Ms. Stewart's offices. 8 THE COURT: Yes. 9 MR. DEMBER: Oh Muslims, my dear brothers, if they 10 killed me, and there is no doubt they will, after my funeral 11 send my body to my family, but don't let my blood go in vain. 12 Don't forget about it, but you must retaliate on them with 13 violent revenge. Remember a brother who said the truth and was 14 killed for the cause of Allah. 15 The Mujahid Sheikh Omar Abdel Rahman. 16 MR. BARKOW: Your Honor, at this point the government 17 requests permission to publish to the jury what is in evidence 18 as Government Exhibit 2057 from the Sattar search and the 19 translation which is in evidence, 2057T. 20 THE COURT: All right. And, ladies and gentlemen, 21 these exhibits were received not for the truth of any of the 22 matters asserted in the documents. 23 MR. BARKOW: If Ms. Griffith could put 2057 on the 24 screen. And please scroll through the pages. 25 Now, your Honor, can we publish and read Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7128 4a7esat2 1 Exhibit 2057T which is in evidence. 2 THE COURT: Yes. 3 MR. BARKOW: Government Exhibit 2057T, page one. 4 "Quite a number of the people of the book [referring 5 to Jews and Christians] wish they could turn you (people) back 6 to infidelity after ye have believed." [Koranic verse.] Do you 7 think the people of the book or the polytheist will like the 8 wealth that God provides you with? 9 There are the ones who fight any Islamic enlightenment 10 in the whole world, and they are working to spread adultery, 11 usury and all the types of corruption in this land. 12 Oh Muslims everywhere, destroy their nation. Tear 13 them apart, ruin their economy, burn their companies, plunder 14 their interests, sink their boats, bring down their airplanes, 15 slaughter them on land, sea and air. [God said] "Slay [the 16 pagans] wherever ye find them and seize them, beleaguer them 17 and lie in wait for them in every stratagem (of war)." "Fight 18 those infidels and let them find firmness in you." "Fight them 19 and Allah will punish them by your hands, cover them with 20 shame, help you (to victory) over them, heal the breasts of 21 believers and still the indignation of their hearts." 22 I looked for peace but I did not find a way to do it 23 but shedding blood with the sword. We used podiums to talk 24 about it, however, the voice of arms called upon us to get back 25 the rights. There is no other way but using force. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7129 4a7esat2 1 Dear brothers, if they killed me, no doubt that they 2 will kill me. Have a funeral for me and send my body to my 3 family. But do not have my blood in vain. Seek for me my 4 revenge, the most violent revenge. And remember a brother of 5 yours who said a word of truth and was killed in the sake of 6 God. This is my will. 7 May God guide you in the right way. May God bless 8 you, protect and empower you. May God's peace, mercy and 9 blessing be upon you. 10 Your brother, Omar Abdel Rahman. 11 Page two, my will: 12 This is my will to you and this is the advice as a 13 warning: 14 All of you Muslims all over the world seek pride by 15 Islam God has blessed with. Do not ask any other for it but 16 God. Whoever ask other than God, he will be abased. 17 Do not grovel before America. Do not fear it. Do not 18 fear its allies. Satan is the one that makes it look giant and 19 intimidating. "It is only the evil one that suggests to you 20 the fear of his votaries. Be ye not afraid of them, but fear 21 me, if ye have faith." [Koranic verse.] 22 Wake up and be attentive. Stand for the call of Allah 23 as one man. Listen [to God], obey him when active or passive. 24 Spend for the cause of Allah in private and when in prosperity. 25 Supplicate to God, enjoin what is just and forbid what is evil, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7130 4a7esat2 1 punish the unjust and stop him from inflicting injustice. 2 Don't depend on those who inflict injustice, lest you are 3 destined in hell's fire. "Go ye forth (whether equipped) 4 lightly of heavily and strive and struggle with your goods and 5 your persons in the cause of Allah [Koranic verse]. Tell the 6 truth no matter how hard it is, "hold fast all together, by the 7 rope which Allah (stretches out for you) and be not divided 8 among yourselves." [Koranic verse] "And obey Allah and his 9 messenger and fall into no disputes, lest ye lose heart and 10 your power depart; and be patient and persevering, for Allah is 11 with those who patiently persevere." [Koranic verse] 12 Your enemies unite, conspire and plot against you, 13 awaiting to attack you. 14 "They only desire your ruin. Rank hatred has already 15 appeared from their mouths. What their hearts conceal is far 16 worse." [Koranic verse.] 17 "[The unbelievers] wish, if ye were negligent of your 18 arms and your baggage, to assault you in a single rush." 19 [Koranic verse.] 20 "Quite a number of the people of the book [referring 21 to Jews and Christians] wish they could turn you (people) back 22 to infidelity after ye have believed." [Koranic verse] 23 "Take not the Jews and the Christians for your friends 24 and protectors. They are but friends and protectors to each 25 other. And he amongst you that turns to them (for friendship) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7131 4a7esat2 1 is of them." [Koranic verse.] 2 Be diligent and pay attention to their ways. You have 3 to be patient and devout. "But if ye are constant and do 4 right, not the least harm will their cunning do to you." 5 [Koranic verse.] 6 Dear brothers, prison has many advantages. It is part 7 of the path. It is a tax that we are paying for those who came 8 before us. How many blessings are in prison, how many lessons 9 we learned in it, how many blessings and how many good things. 10 Pray God not to deprive us of them (the blessings) the 11 lesson is all in the mercy and the blessings that God gives us 12 in abundance. 13 My case is not a case of a particular person. It is 14 the cause of Islam. It is a cause of the nation. Oh men of 15 the nation, wherever you are, be the callers for reform and 16 change what is wrong and be the ones who bring triumph to 17 Islam. 18 Stand out firmly for Allah as witnesses to fair 19 dealing. Tell the truth no matter how hard it is. 20 When you are sure of my murder, avenge me on whoever 21 killed me. Don't let my blood go in vain. 22 Page three. Oh Islam, dear brothers, if they kill me, 23 and I do not have any doubt they will, have my funeral and send 24 my body to my family. But do not let my blood go in vain. 25 Avenge me the most violent revenge and remember a brother of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7132 4a7esat2 1 yours who said a word of truth and was killed in the sake of 2 God. 3 Sheikh Mujahid Omar Abdel Rahman. 4 Page four, in the name of Allah, the merciful, the 5 compassionate. 6 The prisoner Sheikh Dr. Omar Abdel Rahman's fatwah. 7 The US is working hard to eliminate scholars who stand 8 for the right everywhere. The US suggested to its Saudi 9 tormentors [allies] to incarcerate both Sheikh Safar Al-Hawali, 10 Sheikh Salman Al-Awdah and all the ones who speak the truth. 11 Egypt undertook the same procedures. 12 Koranic verses exposed those Jews and Christians. 13 However, we have ignored or have tried to ignore. God the 14 exalted said: "Nor what they cease fighting you until they 15 turn you back from your faith if they can." 16 Oh Muslims everywhere, destroy their nation, tear them 17 apart, ruin their economy, burn their companies, plunder their 18 interests, sink their boats, bring down their airplanes, 19 slaughter them on land, sea and air. [God said] "slay [the 20 pagans] wherever ye find them and seize them, beleaguer them 21 and lie in wait for them in every stratagem (of war)." Fight 22 those infidels. "And let them find firmness in you." "Fight 23 them, and Allah will punish them by your hands, cover them with 24 shame, help you (to victory) over them, heal the breasts of 25 believers and still the indignation of their hearts." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7133 4a7esat2 1 Your brother Omar Abdel Rahman from inside the US 2 prisons. 3 THE COURT: All right. 4 MS. BAKER: Your Honor, the government rests. 5 THE COURT: All right. Ladies and gentlemen, the 6 government has rested. That concludes the portion of the trial 7 in which I told you that the government would be given the 8 opportunity to present evidence and the defendants would be 9 given the opportunity to cross-examine. As I say, this ends 10 that portion of the trial. 11 And at this point I'm going to have a break. I 12 realize we're only going to sit until 1:00 today in any event, 13 and Monday was a holiday. I'm also not going to sit -- we're 14 not going to sit on Tuesday. So the next day that we'll sit is 15 next Wednesday at 9:30 a.m. 16 I know that I give you instructions every day, but I 17 want to reemphasize in particular my instructions to you with 18 all of the words, all of the force that my words can convey. 19 Please, do not talk about this case at all among yourselves or 20 with anyone else when you go home over the weekend. That is a 21 continuing instruction. Please, do not talk about the case. 22 Second, remember, do not look at or listen to anything 23 to do with the case. If you should see or hear something 24 inadvertently, simply turn away. As I've repeatedly explained 25 to you, you sit here in the courtroom. You listen to all of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7134 4a7esat2 1 the evidence. You are in the best position to hear everything 2 that is relevant to what you do as jurors in this case. So, 3 please, don't look at, listen to anything to do with the case. 4 If you should see or hear something, simply turn away. 5 Finally, remember always to keep an open mind until 6 you've heard all of the evidence, I've instructed you on the 7 law and you've gone to the jury room to begin your 8 deliberations. Fairness and justice to the parties requires 9 that you do that. 10 With that, have a very good break and I look forward 11 to seeing you on Wednesday morning at 9:30. 12 (Continued on next page) 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7135 4A7MSAT3 1 (Jury not present) 2 MR. TIGAR: Your Honor, we have agreed on an order and 3 at this time I move under Federal Rule of Criminal Procedure 4 Rule 29(a) for a judgment of acquittal. I would like to serve 5 on the government, and hand it to your Honor, a brief letter 6 that contains the authorities, cases that I will be discussing 7 during my presentation to the Court. 8 May I stand at the lecturn, your Honor? 9 THE COURT: Sure. 10 MR. TIGAR: I would like to begin, your Honor, by 11 talking about some elements of offense issues and then go on to 12 some of the more general questions that we believe are raised 13 by this motion for judgment of acquittal. Talking about the 14 role of the lawyer as the proof has now come in and the role of 15 free expression. 16 I want to begin by talking about Count 2 because as we 17 have repeatedly heard, if there were not Count 2 there could 18 not be a Count 4 and 5. And Count 2 is drawn under section 19 956(a) of Title 18. It alleges a conspiracy to kill or kidnap. 20 THE COURT: Could you hold on just one moment? 21 MR. TIGAR: Of course, your Honor. 22 THE COURT: All right. 23 MR. TIGAR: Thank you, your Honor. 24 Actually, it charges a conspiracy to murder and kidnap 25 persons in "a foreign country." When I mentioned what I was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7136 4A7MSAT3 1 going to do on Rule 29, I mentioned that we had hoped that the 2 government would tell us what foreign country was involved. 3 And if you will recall, counsel for the government said that 4 the Court had not required that specificity in the indictment, 5 which is true if we look at your Honor's opinion on the 6 pretrial motions at page 303 and 304. The Court said no, you 7 didn't have to say. And I suggest that now is the procedural 8 hour when the government does have to say what foreign country. 9 The indictment alleges a foreign country. 10 And then so the next question is, what is a foreign 11 country? The West Bank is not a foreign country because it is 12 not a country. The struggle was said to have taken place in 13 Palestine. We heard a number of great many exhibits introduced 14 today, including Government Exhibit 542, talking about freeing 15 Palestine and resistance inside Palestine. Jerusalem, another 16 area referred to, either is or is not in a country, depending 17 on whether one takes the view of the government of Israel that 18 it is a part of Israel, or that one takes the majority view 19 under international law that it is not. 20 Now, the Court may pause to ask the question, well, of 21 course, everybody knows what a country is. But everybody 22 doesn't know what a country is. The pleader has charged that 23 it took place in a foreign country. That means that the 24 government has to prove beyond a reasonable doubt that wherever 25 this was to take place was foreign and that it was a country. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7137 4A7MSAT3 1 The Second Circuit addressed this issue in a case 2 called Cheung v. United States 213 F.3d 82. In that case, 3 there are a number of authorities of which the federal courts 4 have decided what is a country, what is a sovereign and so on. 5 And the holding of Cheung or the discussion of Cheung makes 6 clear that, first, foreign country, like foreign government, is 7 something as to which the executive branch has the first say by 8 virtue of recognizing an entity; and, second, however, where 9 the matter comes up in a decided case, it is not subject to the 10 political question doctrine because a court must examine the 11 resulting status and decide independently. Cheung is good, in 12 our view, because it cites Chief Justice Marshall's opinion to 13 the Court in the Charming Betsy case in 1804, which is the 14 fountainhead of this doctrine that no federal statute can be 15 interpreted save in accordance with the rules of international 16 law. 17 And the rules of international law are quite clear 18 that whether or not a place in a foreign area is a country or 19 not is a matter that can be attended with some difficulty. The 20 government has not produced any evidence whatever that the 21 murder or kidnap was to take place in something that is a 22 foreign country. 23 When examining this question and to illustrates its 24 nontrivial character, one should look at the statutes as to 25 which 956 is a part. Section 956 is in a chapter of Title 18 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7138 4A7MSAT3 1 called foreign relations. And many of the statutes in that 2 chapter date back to the dawn of the republic. 3 And indeed provisions that are contained in these 4 statutes are the provisions that Chief Justice Marshall was 5 referring to in construing provisions about arming ships and 6 what was neutral and what was not in the Charming Betsy. For 7 example, Section 961 does not refer to a foreign country. It 8 says: Foreign prince or state, or of any colony, district, or 9 people, or belonging to the subjects or citizens of any such 10 prince or state; that is to say, a much broader term than the 11 term the pleader in the grand jury has chosen here, which is 12 country. 13 And in Cheung itself the issue there was whether Hong 14 Kong possessed sufficient attributes of sovereignty to be a 15 foreign government within the meaning of the Extradition Act. 16 And within the meaning of that act, which is not a criminal 17 statute, of course, subject to the canon of lenity, the court 18 said that Hong Kong did, in part, because the president of the 19 United States had sent to the Senate a treaty of extradition 20 with Hong Kong which the Senate ratified, recognizing that at 21 least for the 50-year period under which China vows not to 22 change the economic system of the former crown colony that Hong 23 Kong would possess that attribute of sovereignty. As I say, 24 this is a matter that has occupied the attention of scholars 25 and it is nontrivial. It occupied the attention of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7139 4A7MSAT3 1 drafters of the South African Constitution, of President Nixon 2 in recognizing Taiwan, and so on. 3 Let's assume that a country is not something that the 4 government had to prove. Let's assume that the pleader pleaded 5 it, but for some reason the government is excused from proving 6 it by presenting evidence. The question of what is alleged to 7 be the foreign country is a vital concern here because other 8 principles of international law, which, as I say, ever since 9 1804, the federal courts are bound to apply in construing 10 statutes, become relevant to the construction of this one. 11 Murder, kidnapping, says the indictment. And the statute, 12 Section 956, speaks of murder, kidnapping or maiming. Murder, 13 kidnapping, or maiming are legal terms of art that refer to 14 homicide detention and wounding. Homicide detention and 15 wounding would be the neutral terms. 16 If you look at the statutes of chapter 45 we see that 17 there are many, many instances in which people can agree to 18 kill, wound, and detain people in a foreign country. And 19 whether or not someone is empowered to kill, detain or wound 20 people in a foreign country depends on where that place is. 21 For instance, there is a recognized canon of international law 22 that a state, as a matter of customary international law, 23 cannot interfere in a civil war in another country. By not 24 interfering in a civil war in another country, one might well 25 say that that would include not choosing to prosecute one group SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7140 4A7MSAT3 1 of people who are planning to go abroad and do something, but 2 not prosecute others. 3 And I think everybody in the courtroom is well aware 4 that there are groups of people in the United States today who 5 are preparing, who are training, who are doing things with the 6 benign neglect of the United States to do things in various 7 other countries. And the justification on international law, 8 for example, for not interfering with the planning of Cuban 9 emigrates to reenter their country could only come about if we 10 consider it to be lawful under international law because the 11 United States says that there are certain kinds of killing, 12 wounding, and detaining in other countries that as to which our 13 government simply has to kind of take a hands-off position. 14 This is an unusual concept to talk about because when 15 one reflects that the United States now, and London in the 19th 16 century, were places where all men were emigrates used to get 17 together and talk, it isn't so surprising after all. Unless we 18 are told what country, we can't make a defense as to which we 19 would be entitled under international law, which is well in 20 that country. There is a civil war exception or perhaps one 21 would say that it is not a foreign country because it is a 22 failed state. Is a failed state, a foreign country possessing 23 sufficient attributes of sovereignty to be covered under 956. 24 What is a failed state? United States considered naming Iraq 25 as a failed state simply to deprive it of juridical personality SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7141 4A7MSAT3 1 and thus to be able to repudiate its debts. 2 There are other cases that one can imagine, not 3 particularly relevant here, but that it seems to us go vitally 4 to the interpretation of this statute, including the Article II 5 power of Congress to grant others of mark and reprisal. But 6 all of that is discussed in the Charming Betsy case. 7 In looking up this issue, I looked at Judge Brinkema's 8 decision, which was not before the Court. She decided it, but 9 for some reason we didn't have it, back in March of 2004 in 10 United States v. Kahn, which is cited in the letter that I've 11 handed up to the Court. And in Kahn the government did charge 12 that those defendants were involved in violating 2339 -- I 13 can't remember if it was (a) or (b) because they went and they 14 were going to do something in India, a country with which the 15 United States was at peace. And that was a part of the statute 16 there charged and Judge Brinkema made the charge that indeed 17 India was the place and United States was at peace with India. 18 Now, let's assume that it is not something that the 19 government has to prove. Let's assume that it is not something 20 the government has to name because it might give rise to a 21 defense under international law. Why else? Why should we do 22 it? 23 This is a segue to some of the broader considerations 24 that are here. The last group of exhibits that we had here 25 reflects the terrible danger that all of these defendants face, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7142 4A7MSAT3 1 a danger which from time to time we have said that no limiting 2 instruction can save them from. And that is the danger, that 3 this case will, in the juror's minds, be a case about them 4 versus us, a case that somehow there is a Muslim conspiracy out 5 there to kill all the Christians and the Jews, that Osama Bin 6 Laden is a part of it and that anybody connected in any way 7 with it must be involved. It is the same kind of error that we 8 had to struggle so hard to liberate ourselves from in the 1950s 9 when the rubric was the worldwide communist conspiracy. 10 And the concepts then were tried to be directed to 11 individual defendants like Mr. Noto and Mr. Scales and the 12 defendants in Yates, all of those cases we have talked about 13 with your Honor. This is -- the risk here is that the jurors 14 will see this international conspiracy to fight the enemies of 15 God or somebody's version of enemies of God, and will think or 16 believe that that's the conspiracy, that it is a worldwide 17 amorphous, vague conspiracy. 18 And, of course, the next step is that since we read 19 about it every day and since all the candidates for major 20 public office speak in terms as though it existed, how can 21 Ms. Stewart not know that it exists? We can argue that she 22 certainly can't know that it exists because she reads the New 23 York Times. After all, the Times and the other papers are not 24 admitted for the truth of what is in there. They are admitted 25 only for her knowledge, intent, and state of mind. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7143 4A7MSAT3 1 But she is not on trial just for her knowledge, 2 intent, and state of mind, although that is relevant to the 3 case. She is on trial and can be convicted, if at all, because 4 an act was committed. The act in a conspiracy case, whether it 5 be Count 1, Count 2, or Count 4, is the act of agreement. And 6 Judge Friendly wrote in Borelli of this terrible risk that 7 people are likely to confuse the group of people doing things 8 with this understanding if the agreement is the essence of the 9 offense. 10 So the vagueness that is attended by excusing the 11 government from standing up and saying we said a foreign 12 country, that's what the grand jury said, we have proved it, 13 and, lo and behold, this is what we claim it is, makes it 14 impossible for Ms. Stewart to defend on Count 4, either 15 actually or as a practical matter because she can't figure out, 16 and we can't talk to this jury about what she was and was not 17 aware of if the government hasn't told us this is what you're 18 supposed to be aware of, this is what you are charged with 19 being aware of, this is the place where it occurred, and these 20 were the people that are doing it. 21 Now, that is to say, in order for her to desire that 22 any of the charged conspiracies succeed -- and I'm talking 23 particularly about the Count 4 one, although it goes to all of 24 them, she has to know what it is. This leads me then to this 25 somewhat broader view of conspiracy and what this case, from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7144 4A7MSAT3 1 our perspective, is about. 2 It is two and a half years since I first -- almost two 3 and a half years since I first appeared before your Honor in 4 this case, two and a half years since I met Ms. Stewart for the 5 first time. Throughout the case the government has worn the 6 mantle of antiterrorism, and I trust that this Court doesn't 7 accord that any more weight than simply an identification of 8 these prosecutors as engaged in an important public function. 9 And the Court has consistently respected the fact that 10 we on our side are as much charged with fighting terrorism, 11 fighting invasion of rights, fighting the unlawful exercise of 12 power as are the government lawyers, and we, too, recognize -- 13 and I certainly do personally, based on my own experience -- 14 that Luxor, with which we are not charged, but it was 15 unequivocally a violation of secular and biblical law. 16 And as I've said to the Court, for 30 years I've been 17 representing the victims of terrorism. I think there is a 18 fundamental difference of view here. There are groups in the 19 world who seek to change the policies of their government and 20 of adjacent governments by resorting to violence. That is 21 true. And some of that violence violates the laws of their own 22 country or the country in which they seek to do their conduct. 23 And nation's states acquire the obligation to render to the 24 appropriate sovereign fugitives who are said to have violated 25 those laws. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7145 4A7MSAT3 1 But there are equally provisions of law that say that 2 those who have planned and who execute violence are excused 3 from criminal liability. I have mentioned some of those 4 provisions, Civil War. I filed with the Court previously 5 evidence that CIA agents routinely kidnap people. We have had 6 Judge Livingston's decision that there is torture and nobody is 7 punished for it under the laws of Egypt. I cite in the papers 8 Chief Justice Story's opinion in the Amistad, which is very 9 interesting, but the Amistad took place in the context of an 10 international incident involving Spain, Portugal, and the 11 United States, and he said that as a matter of the law of 12 nations, those defendants, those Africans could not be punished 13 for piracy. 14 These people, who are these people that are going to 15 do violence, they have the right to counsel. They have the 16 right to counsel not only to defend them when they are charged, 17 but inevitably people who discuss the prospect of activity that 18 may hurt others, often consult lawyers. And I am not going to 19 repeat all of the examples we gave in our papers about the 20 autonomy to which lawyers are entitled. 21 But there is a chasm here between our position and the 22 government's about this. The Court may recall the debate over 23 the Cutack Commission report in 1982. And it was the position, 24 for example, of the business round table in Weil Gotshal 25 representing them that lawyers should be able to meet with the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7146 4A7MSAT3 1 corporate client, for example, planning the issuance of a new 2 drug to treat arthritis. That was their favorite example. And 3 the container was either going to be child proof or not. And 4 if it was child proof, the arthritis sufferers couldn't open 5 it. But if it wasn't, children might open it and might be sick 6 or die. 7 And the question of what the company's liability would 8 be in that instance was something that was regarded as within 9 the lawyer's function, and the reporter's recommendation to the 10 contrary was rejected; that is to say, people meet with lawyers 11 under circumstances where they discuss harm. The president of 12 the United States has lawyers who say, well, you can do 13 torture, but you can't have people stand up for more than a 14 certain number of hours per day. 15 With specific reference to this case, I have never 16 been in a case regarding a public figure, your Honor, in which 17 you didn't read the newspapers or provide the newspapers or see 18 that the newspapers were provided to the client so the client 19 could make intelligent determinations. And yet the government 20 is saying that's a violation of the SAMs. I have never been in 21 a case where an incarcerated client, or isolated, where we 22 didn't provide information about the client's supporters and 23 people who were outside who might have something to do with 24 providing professional legal services; in this case, getting 25 the Sheikh to a prison in another country. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7147 4A7MSAT3 1 And to read the SAMs as prohibited, the provision of 2 legal services in these ways is at war with the autonomy of 3 lawyers in the sense that I have described it as the matter of 4 the proof in this case. It is also at war with basic 5 principles of federalism as I have pointed out in my memorandum 6 in support of the motions to dismiss. 7 An illustration of how far the government is willing 8 to go to catch Lynne Stewart is, we found out that some of 9 these newspaper articles, which had to did with Sheikh Abdel 10 Rahman's situation, people in Egypt, in an ongoing situation 11 where there really was discussion about getting him out of the 12 United States and into an Egyptian prison, they had to stand up 13 and say or they had to claim that because Ramsey Clark, the 14 former Attorney General of the United States, said you can do 15 that and that's okay and I signed the SAM and I say you can do 16 it, he must be a conspirator, too. 17 And Abdeen Jabara, founder of the American 18 Antidiscrimination Committee, he said you could do it and he 19 surely understood and he has got to be a coconspirator, too. A 20 theory that criminalizes lawyer conduct in that way that 21 broadly simply has to be wrong because it is fraught not simply 22 with the peril that the lawyers have shown, but with the idea 23 that a group of Assistant United States Attorneys can now 24 redefine what it means to practice law. It is interesting. 25 In this town it used to be the terrorists were the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7148 4A7MSAT3 1 IRA. There were these trials and there were these people that 2 Mr. Doherty, who was there, Judge Sprizzo says he couldn't be 3 extradited. One of the great lawyers that represented all 4 these alleged terrorists and who stood up and spoke to the 5 Northern Irish Aide was Paul O'Dwyer. The reason I thought of 6 this, I was having coffee yesterday morning and I looked across 7 the street and they named the street in front of the courthouse 8 after him. And then Mayor Dinkins named the street over by the 9 MDC Joe Doherty Way until Mayor Giuliani took the sign down. I 10 don't say that lightly or make a pleasantry. It is to talk 11 about context and talk about the risks we feel we face. 12 Now, that brings me to the other part. Your Honor 13 held conformably to Dennis and Bryson that we would not be able 14 to make a frontal challenge to the validity of the SAMs, just 15 that the Dennis defendants were not able to challenge in their 16 371 conspiracy to defraud prosecution, the constitutionality of 17 section 9(h) of the Taft-Hartley act, and that's the law of the 18 case. 19 But there is no case under Section 371 that deprives a 20 defendant of the right at motion for judgment of acquittal time 21 of the ability to make and have interpreted a First Amendment 22 argument about the content of particular expression, especially 23 when that particular expression consists of speech that relates 24 to core concerns. Speech that relates to core concerns may at 25 times be very, very violent indeed, it being recognized that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7149 4A7MSAT3 1 people who are the victims of torture, summary execution, 2 hostage taking, all of the things that have been laid at the 3 feet of the Egyptian government and in a judgment to which the 4 United States was a party and did not appeal and is therefore 5 bound by, in some sense of the word, that they may react in 6 certain ways. That's just a reality, your Honor, and we have 7 cited Hess v. Indiana, kill the pigs, kill the pigs. We have 8 cited Yates. We have cited Watts. If you give me a gun, I 9 want to kill the president. There are a lot of not pretty 10 things that are said by people who are engaged in this kind of 11 struggle. 12 We recognize that in the very case in the Second 13 Circuit, the Rahman case, the court said, well, no, not 14 standing in the kitchen with Mr. Salem and saying blow things 15 up. That's not what that is about. Once we get all this 16 newspaper reading and so on out of the way -- again, I say -- I 17 represented, your Honor, the only city member of the United 18 States Senate ever to have been acquitted by a jury, and the 19 idea that in the course of preparing that case we couldn't read 20 the newspapers every day would be surprising. 21 What did Ms. Stewart do? Let's look at the statement. 22 Let's look at that. She goes to the prison. She has a 23 discussion. Mr. Yousry translates before what he is going to 24 read. That is what the approved by means. Ms. Stewart and 25 Mr. Yousry don't want the guards to interrupt them. So the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7150 4A7MSAT3 1 fact that he is doing a lot of talking and she is not, she does 2 engage in some behavior that make sure the guards don't listen 3 in. She remarks there seems to be a lot of guards around 4 today. 5 I hope the government doesn't continue to persist on 6 that point, because I might have to turn myself in. Because 7 every time I have ever gone to a prison in a high-profile case, 8 I have tried to do things to keep the guards from hearing what 9 we talk about. I regard that as normal, whether it is to take 10 a radio in or write things or not say things or even say things 11 that divert. We take that and put it to one side. 12 Let's see what happens at that visit. This is a 13 conversation in Government Exhibit 1711, your Honor, at page 31 14 of the transcript provided to us. And that's the May 20 15 conversation. And that's at a point where they are discussing 16 what Abu Yasir wants. And at page 31, line 3 Mr. Yousry says: 17 Abu Yassir is asking unintelligible, wants your approval that 18 he can escalate with the media and try to rearrange the 19 thinking of. Escalate with the media. Concerning what? The 20 initiative completely. 21 Line 9: Tell him, yes, I agree, but not to cancel it. 22 He should not cancel it all together, not to void it. He can 23 go ahead and escalate, referring to escalating with the media. 24 Then Ms. Stewart on the 14th of June 2000 talks to 25 Mr. Salaheddin and says that the Sheikh withdraws his support SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7151 4A7MSAT3 1 for the initiative or cease fire or whatever, withdraws his 2 support. 3 Let's take it that indeed those are the exact words 4 that she said. Let's understand the context in which the 5 Sheikh is told in prison that the government has once again 6 started killing people and summarily executing them and taking 7 hostages, and minors are being tried by military courts and so 8 on. 9 What does that lead to, your Honor? The government 10 promised us that we were going to get a command to pick up the 11 guns. Nobody in Egypt interpreted it as a command to pick up a 12 gun in the sense that nobody picked one up. The first thing 13 that happened was that Montasser al-Zayyat and the brother in 14 prison said that can't be impossible. Six days later there is 15 a clarification where the Sheikh says, I'm not supporting this 16 thing anymore, but I certainly didn't cancel it. 17 And then in one of these wonderful vindications of 18 John Stewart Mills, a theory of freedom of expression, more 19 speech does the job. Because in fact the questions that Sheikh 20 Omar Abdel Rahman was quoted by Ms. Stewart as raising leads to 21 a reaffirmation of the initiative. That's the First Amendment. 22 As far as the fake fatwah is concerned, she didn't 23 have anything to do with it. When she heard about it, she was 24 surprised. If he is for it, well, that's it; I'm for it, is 25 the language that's quoted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7152 4A7MSAT3 1 The idea that you stick people with particular words 2 in casual conversation is a strange one. The likely meaning is 3 if she did it she would have to defend it. She never did 4 anything about it or spread it or anything else. That doesn't 5 quite seem fair. 6 Then, of course, there is the statement about insulin, 7 your Honor, which the government is also relying. Wow. The 8 son and the wife of the Sheikh get concern about his medical 9 treatment. A guard at the prison says he is not taking his 10 insulin. Ms. Stewart is barred from seeing her client. She 11 has no idea what's happening except that she does know from her 12 experience that a number of things have happened in that prison 13 that are very disturbing, that the Sheikh, they approach him 14 when he is naked, they look at his body. They do things that 15 are insulting to a Muslim. 16 Dr. Edward, he doesn't even know what Hallal food is. 17 I am not going to go into all of the details. There is some 18 failure of communication. Dr. Edward, he did say that. As far 19 as Ms. Stewart is concerned, she doesn't know anything. 20 Mr. Sattar is calling her. What does she say? Nobody on the 21 outside knows. What is she supposed to do? Tell us what is 22 her legal duty when she hears third-hand hearsay about 23 something that is attributed to her client? 24 Can it really be said she has an enforceable legal 25 duty to intercede in a matter where she is prohibited from SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7153 4A7MSAT3 1 seeing her client to make sure that no false reports get to the 2 press? Is it now a federal crime to say things in public that 3 arguably might cause danger? We can all think about that for a 4 minute. In a day and time when there are so many revelations 5 about so many things that were said to the press that have 6 caused the deaths of so many and turned out to be false, it 7 does not lie with this executive branch, your Honor, to give us 8 lessons on telling falsehoods to the media. 9 In short, your Honor, nothing in the history of 371, 10 not the Klein case, not Professor Goldstein's wonderful article 11 about the Klein case, or any of the other cases says that we 12 can't look at the First Amendment here. And if we can't, we 13 suggest that we must. I note this, your Honor. In the Cosa 14 Nostra cases the government usually had an expert that would 15 say, you know, this is the Cosa Nostra. This is how they are 16 organized. These are the dangers they create. 17 THE COURT: The government knows I have not been a fan 18 of experts such as that subject. There was no effort to 19 introduce such an expert and it is simply not in a case. 20 MR. TIGAR: Your Honor, I take seriously what your 21 Honor says. Had there been one, I would have been the first 22 one to say, under the Second Circuit's recent decisions, the 23 expert can't testify. Then we ask ourselves, what is the 24 evidence, what is the evidence about conditions in Egypt that 25 the government did introduce? Well, there is Judge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7154 4A7MSAT3 1 Livingston's opinion about the torture. There is Judge 2 Livingston's opinion that the FBI overvalues its intelligence 3 sources. There are human rights country conditions reports. 4 There is the State Department's own report. The government 5 introduced two State Department reports in evidence but didn't 6 read them to the jury. You know what those reports say, your 7 Honor? The Egyptian people have no meaningful opportunity to 8 change their government by peaceful means. Two government 9 exhibits. 10 I represented people. I sat in rooms in South Africa 11 with people that I knew also were engaged in some way, 12 connected in some way to the arms struggle. That was what 13 lawyers are supposed to do, your Honor. 14 Finally, I'd like to talk a little bit about these 15 1001 counts. That's a technical thing. 16 Excuse me, your Honor, one more thing. Judge 17 Brinkema's opinion in the Kahn case is very, very interesting 18 to me because those defendants were charged with providing 19 personnel in the same way that we are. And Judge Brinkema 20 discusses humanitarian law, that case. In that case she 21 defines the provision of personnel in her discussion of 956 and 22 the 2239 in terms of these people going to a training camp and 23 learning how to fire rifles and picking up guns, training in 24 the United States using paintball instead of real weapons. 25 I suggest to the Court that Judge Brinkema's analysis SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7155 4A7MSAT3 1 of the providing personnel part of this offense is worthy of 2 study. And I suggest also that in the context of my discussion 3 of the issues the government has failed to prove that 4 Ms. Stewart provided the Sheikh to a conspiracy. That's an 5 offshoot of my argument about vagueness, provided the Sheikh to 6 a conspiracy. By issuing the statement on June the 14th, 2000? 7 I have talked about that. Thereafter, she was barred for that 8 whole time from August to the following July when she sees him 9 again, so there couldn't be any providing about that. In 10 short, your Honor, we submit the government has failed the 11 proof. 12 The 1001s. The interesting thing, your Honor, about 13 the May 19 and 20 prison visit is that during one of those 14 tapes your Honor can see a document on the table, on the white 15 table cloth and, lo and behold, if you zoom in on it, as I saw 16 it go by, it is the SAM affirmation that Ms. Stewart has 17 already signed. If that's what that evidence shows, and we say 18 that it is, she arrived at the prison in Rochester having 19 signed the SAM. On or about May 16, the SAM affirmation was 20 signed. 21 Now, it is at page 31 of 1711 that we have Sheikh 22 Abdel Rahman saying, well, I want to do this, I want to tell 23 this to Abu Yassir, this, that, and the other thing. So if we 24 discard this idea of making everybody a conspirator about 25 reading newspaper articles, and if that's the SAM that she SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7156 4A7MSAT3 1 allegedly -- that's the false statement, that SAM is the false 2 statement. The SAM affirmation, first of all, it refers to an 3 invalid SAM. The SAM that came attached to the affirmation was 4 the December '99 SAM which only lasted 120 days, and so that 5 couldn't be violated. It then has the typo and everyone says 6 well, that's just a typo. 7 We still insist on those points, but fine. The 8 affirmation is in three parts: One, the past tense; two, the 9 present tense; and, three, the future tense. And the Court 10 dealt with this issue in the Shah discussion, in the Shah case. 11 You said they had to prove the times she signed it she intended 12 to violate it. That simply is an inference that doesn't hold 13 water. She had the signed SAM with her at the visit. She had 14 signed it before. And there simply is not a line, not a word 15 of evidence that she pondered the idea of issuing any media 16 statement until after she left the prison and indeed until 17 after she had a meeting with Mr. Jabara and Mr. Clark until 18 after she talked about it, until somebody came to her office. 19 They called Mr. Salaheddin on the 14th. The same thing could 20 be said about Count 7. 21 THE COURT: I'm sorry? The reporter didn't get it. 22 MR. TIGAR: The same thing could be said about Count 23 7, your Honor. We have cited cases and I have spoken longer, 24 perhaps, than people do in Rule 29(a) motions, being thought in 25 some places as kind of a vestigial rambling, and I never SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7157 4A7MSAT3 1 thought of them as such, and I know the Court does not. 2 From the outset I appreciated the opportunity to serve 3 in this case because I saw it as a test of the most important 4 values that have surrounded not just political society, but my 5 profession. And that's why I appreciate the opportunity, 6 regardless of the outcome today, to address the Court again on 7 these issues. Thank you. 8 MR. RUHNKE: Your Honor, on behalf of Mohammed Yousry, 9 we join the remarks and arguments of Mr. Tigar to the extent 10 they are applied to Mr. Yousry's situation. 11 And taking the position as whether a reasonable jury 12 could find that each of the elements of the crimes charged in 13 this case have been proven beyond a reasonable doubt, we assert 14 that with regard to Count 1, which is the conspiracy to defraud 15 the United States, that evidence is insufficient for a jury to 16 reach that conclusion. The evidence is clear that Mr. Yousry 17 was not a party to the SAMs, not a signatory to the SAMs. The 18 evidence that Mr. Yousry was not a signatory to the SAMs was 19 not found because the SAMs took its guidance from the 20 attorneys, that the evidence is overwhelming that he followed 21 the direction of the attorneys on what was permitted or not 22 permitted under the SAMs. 23 On the Counts 4 and 5, with which Mr. Yousry is 24 charged, Counts 4 and 5 depend upon, at the very base, 25 knowledge of the existence of the conspiracy charged in Count 2 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7158 4A7MSAT3 1 involving Mr. Sattar, Taha, and others, and there is a simple 2 failure of proof on that issue. Failing to prove knowledge of 3 the existence of that particular conspiracy as charged in Count 4 2, the government cannot prevail on the further elements of 5 Count 4 and 5 that Mr. Yousry knew about the conspiracy and 6 then took the further elemental steps of intending to provide 7 personnel to the existence of a conspiracy of which he was 8 unaware. So, therefore, I ask for judgment of acquittal on 9 Counts 4 and 5 as well. 10 MR. FALLICK: Your Honor, if I can go to the podium 11 for the reporter. 12 THE COURT: Sure. Whatever you prefer. 13 MR. FALLICK: Your Honor, on behalf of Mr. Sattar, we 14 also move, pursuant to Rule 29, for a judgment of acquittal on 15 Counts 1, 2, and 3. Where applicable, we ask the Court if we 16 can adopt the arguments made by Mr. Tigar concerning Count 2. 17 Thank you. 18 MR. BARKOW: Your Honor, the government submits that 19 it has presented sufficient evidence from which a reasonable 20 jury could find proof beyond a reasonable doubt on every 21 essential element on every count in the indictment. 22 We ask that the Court reserve decision, pursuant to 23 Federal rule of Criminal Procedure 29(b), which permits the 24 Court to reserve decision on a Rule 29 motion and proceed with 25 the trial until after the jury has returned its verdict, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7159 4A7MSAT3 1 then decide the motion on the basis of the evidence that had 2 been presented at the time the motion was presented. And we 3 are available, obviously, your Honor, to respond to any 4 questions about the evidence or the elements, but we do submit 5 that the record abundantly shows all of the essential elements 6 of each charged offense. 7 THE COURT: Frankly, I assume that the defendants have 8 no objection to my reserving decision until after any verdict 9 by the jury, pursuant to Rule 29(b). I fully appreciate I have 10 the power to do that under the rule. 11 And as a matter of course, if I were to deny a Rule 12 29(a) motion, it has always been my practice to say, of course, 13 the defendants have the right to renew the motion at the 14 conclusion of the evidence or after there is a verdict by the 15 jury. So it does become a two-step process. But if the 16 government says, Judge, reserve until after a jury verdict and 17 if the defendants have no objection to that, then I will 18 reserve until after any jury verdict. 19 MR. TIGAR: No objection on the part of Ms. Stewart, 20 your Honor. 21 MR. RUHNKE: We do not object on behalf of Mr. Yousry. 22 MR. FALLICK: No objection. 23 THE COURT: I wouldn't think so. 24 Now, is there anything else at this point? 25 Well, the parties haven't raised -- there is some case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7160 4A7MSAT3 1 law that would suggest that at the conclusion of the 2 government's evidence the Court should make the Geaney finding. 3 There is no specific motion to strike any particular items 4 received subject to connection. I have been careful in the 5 course of the government's evidence to define against whom the 6 evidence is offered for its possible truth and indicated to the 7 jury that an instruction of subject to connection means that 8 they can consider the evidence unless at some point I tell them 9 that it cannot be considered for the truth of the matters 10 asserted. 11 Applying the standards under Geaney and Tracey, there 12 has been sufficient evidence that the statements received 13 subject to connection can be considered because they were made 14 consistent with the instructions that I have given, that there 15 is sufficient evidence under the standards of Geaney and Tracey 16 and Bourjaily, that the statements were made during and in 17 furtherance of the particular conspiracies of which the person 18 against whom they were offered and the declarants were members. 19 MR. TIGAR: I'm sorry, your Honor. I'm not sure I 20 understood what your Honor was saying. With respect to a 21 request, defense counsel would like to confer after court today 22 and send your Honor a letter setting out our view with respect 23 to that Geaney/Tracey issue. As your Honor reminded me, Tracey 24 has some requirements and so on that we want to make sure that 25 we look at and that we make our position very clear to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7161 4A7MSAT3 1 Court in the way that Tracey says that it should be done. 2 THE COURT: Government. 3 MR. BARKOW: Your Honor, we think that the Court's 4 finding that the Court just stated is appropriate, but 5 obviously if the defense wants to file a letter, they can file 6 it. But we do agree with the Court that the Geaney and Tracey 7 standards have been satisfied with sufficient evidence. 8 THE COURT: And if the defendants decide to file the 9 letter, the government, of course, can respond promptly. 10 MR. BARKOW: We will, your Honor. And depending on 11 what the defendants say, if we decide that we don't think a 12 response is necessary, we can also advise the Court that we 13 don't intend to respond, given that we are not going to be in 14 court again for several days. 15 THE COURT: You respond by letter. 16 MR. BARKOW: Yes. And we can either respond on the 17 merits or, if we don't believe that that's necessary, if the 18 Court would wish, we can advise the Court that we are not going 19 to be submitting any further response rather than just not 20 responding and the Court thinking that we are going to respond, 21 but we are not going to be in court again until Wednesday. 22 THE COURT: That leaves the next question, which is, 23 where are we in terms of Wednesday? 24 MR. TIGAR: Your Honor, we have tendered the proposed 25 Elliot exhibits and we have tendered -- we will work out our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7162 4A7MSAT3 1 story here. We have tendered the proposed Elliot exhibits and 2 we have the proposed Stewart exhibits in court, having 3 previously tendered to the Court the list. As I say, most of 4 them were exhibits that were derived from the Stewart search 5 that is additional exhibits other than those that we are going 6 to use during our case. So that's where we stand on that. It 7 is the Elliot matters that presumably are the first ones that 8 would necessarily require consideration. 9 MS. BAKER: Your Honor, I expect to be submitting a 10 letter later today identifying those documents that have been 11 tendered as potential exhibits for Mr. Elliot as to which the 12 government has no objection. 13 THE COURT: That's Thursday. And is Ms. Stewart going 14 to respond to the letter? 15 MR. TIGAR: Unless the government agrees that they all 16 go in evidence, your Honor, which I don't think is going to 17 happen, yes, we would like an opportunity to respond. What 18 time today would that letter be here? Before sundown? 19 MS. BAKER: I hope so, but I'm waiting to hear back 20 from the FBI. They are the keepers of their sensitive 21 information, and I need to be guided by them and I'm waiting to 22 speak with them again. 23 MR. TIGAR: Well, as soon as we receive that letter, 24 your Honor, we will respond with a proposal as to when we will 25 make a full and substantive response. In that way, we are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7163 4A7MSAT3 1 not -- if there is some delay in that letter, which I 2 understand there might be, in all good faith, then I would 3 suggest to the Court that's the way we would prefer to handle 4 it so we can ask the Court's guidance and the Court can then 5 set a schedule by memo endorsement which the Court will do that 6 for us. 7 THE COURT: What that suggests to me is that the 8 government will submit a letter today and then I will get a 9 letter of when the defendant intends to submit a letter. 10 MR. TIGAR: I was suggesting that the letter that we 11 intend to submit a letter will be after ten minutes after we 12 get the government's letter. If we get a letter 10:00 tonight, 13 there is a serious question of how we can respond to it in the 14 context of what we have to do. My anticipation would be that 15 24 hours should be sufficient for us to get a letter to your 16 Honor. Because we have seen the exhibits. The Court has seen 17 them. They are here. The legal issues are not very many in 18 number. But should there be a delay, then we start running 19 into other issues. But 24 hours is what we are asking for, 20 your Honor. 21 And if the Court would prefer not to be in the 22 position the Court has just indicated that the Court might not 23 wish to be in, 24 hours is what we ask the order to be, and we 24 would take the burden to modify that if for some reason we saw 25 the government's letter and felt we couldn't do it within that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7164 4A7MSAT3 1 time. 2 THE COURT: 24 hours to respond to the government's 3 letter. That still leaves the possibility that I may have to 4 meet with you to discuss the issues raised in the exhibits, 5 which means that I should meet with you on Tuesday. 6 MR. TIGAR: Your Honor, that's fine with us, your 7 Honor. It really is fine with us. We ask asked for more time 8 yesterday and I am not going to try to use this process as an 9 opportunity to reargue what your Honor decided yesterday. We 10 have a lot to do to get our case ready. And if it becomes -- 11 if we simply feel overwhelmed by the pressure of all of it, we 12 will let the Court know, but that would be anticipatory. I 13 would be pleased to hold Tuesday open on the understanding, I 14 suppose, that not all counsel may wish to be here. It is, 15 after all, Ms. Stewart's case. 16 THE COURT: There are also several other possibilities 17 that I don't foreclose. One is Ms. Stewart suggested that 18 maybe she wouldn't begin with Mr. Elliot. She had indicated 19 she was going to begin with Mr. Elliot and the government made 20 various decisions based upon that. The parties can certainly 21 discuss that for their mutual scheduling. And I just raise 22 that as a possibility. 23 But as of now the first witness is Mr. Elliot. And if 24 there are objections to the exhibits, then I should decide them 25 before he testifies. And if I have to work out any procedures SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7165 4A7MSAT3 1 and talk about what the procedures are. 2 MR. TIGAR: Yes, your Honor. I did say he could be 3 called later. This was discussed among counsel for other 4 defendants and so on, and that was a proposal then made. It 5 would not be the end of the earth if Mr. Elliot were later. 6 However, having him as our first witness is important to us 7 because based on what he says, then we can make other 8 determinations about what else we might do in the defense case. 9 And those would be harder to execute on if he were called 10 later. So we have a decided preference that he be our first 11 witness, your Honor. 12 MR. PAUL: I was just going to alert the Court that in 13 if in fact between now and next week that for some reason your 14 Honor feels it is appropriate to convene to discuss these 15 documents dealing with Mr. Elliot, we will waive our presence. 16 We will waive my client's presence. We intend to be with my 17 client, our client, on Tuesday, and we do not wish to attend 18 for any purposes with regards to that subject on Tuesday, if 19 that's what happens. 20 MR. RUHNKE: Your Honor, we have precisely the same 21 position. We can always review a transcript. This is an issue 22 that while we are interested in the issue, it does not directly 23 affect our case and we would rather be doing something else on 24 Tuesday if we possibly could. So Mr. Yousry would waive his 25 presence and Mr. Stern and I would not attend the argument. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7166 4A7MSAT3 1 THE COURT: Mr. Sattar, did you hear what your lawyer 2 said? 3 DEFENDANT SATTAR: Yes. 4 THE COURT: If we have a conference on the subject of 5 those documents, do you wish to waive your presence for that? 6 DEFENDANT SATTAR: Yes, I do. 7 THE COURT: Mr. Yousry, you heard what your lawyer 8 said. If we have a conference, do you wish to waive your 9 presence for that conference? 10 DEFENDANT YOUSRY: Yes, I do, Judge. 11 THE COURT: Government, do you think I should do 12 anything else? 13 MS. BAKER: No, your Honor. We believe that's a 14 sufficient record. 15 THE COURT: There are at least two other motions in 16 limine out there relating to Ms. Stewart. One relates to the 17 Hawke memo. The other relates to what's been described as the 18 scope of cross-examination. 19 MR. BARKOW: Your Honor, with respect to the scope of 20 cross-examination, that issue I think had come up before, and I 21 recall that both sides agreed that that could be deferred until 22 after the direct examination, I think. 23 THE COURT: No, no. It could be deferred until the 24 conclusion of the government's case. It may -- 25 MR. BARKOW: That makes sense. What I was rising to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7167 4A7MSAT3 1 say, your Honor, we had intended by letter, by a very brief 2 letter, to raise again some of the pretrial motions in limine 3 that we raised regarding the defense case. We raised it in the 4 context of opening statements at that time and the Court 5 deferred on those. But we had also phrased it at that time as 6 relating to opening statements and also the presentation of 7 evidence, and we were not going to brief those at length 8 because we briefed them in the first set of papers, but merely 9 raise them again. So I think that in addition to Ms. Stewart's 10 motion in limine about the 9/11 issue, we would also like to 11 raise some of the issues that we raised previously about this 12 proper scope of her direct examination. 13 THE COURT: It relates solely to any testimony by 14 defendant to your motion in limine? 15 MR. BARKOW: No, your Honor. Right now, our 16 understanding is that Ms. Stewart's case is going to consist of 17 Mr. Elliot and Ms. Stewart. And so with respect to her case it 18 would only relate to Ms. Stewart. If there are other witnesses 19 as well that are going to testify in the Stewart case or other 20 exhibits, we also would direct our objections to those 21 witnesses and those exhibits. They are providing us with 22 copies of their exhibits and we probably will have specific 23 objections that relate to specific exhibits. But if any other 24 witnesses come forward, we would raise our objections with 25 respect to their testimony as well. (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7168 4a7esat4 1 MR. BARKOW: But as of right now, we don't know what, 2 if any, other witnesses might testify. 3 Which actually raises another small matter, if we 4 could ask through the Court. We had been, to the extent 5 feasible and possible, in the practice of providing 3500 6 material for our witnesses on the Friday before our witnesses 7 testified. And we'd ask through the Court if we could be 8 provided reverse 3500 material; at least a list of witnesses at 9 some point before the witness appears in court. We ask that it 10 be on the same schedule that we followed, but at the very 11 least, we ask that it be the day before so we can know who is 12 arriving and we can have the appropriate exhibits in court for 13 cross-examination. 14 THE COURT: Mr. Tigar? 15 MR. TIGAR: I look forward to receiving these 16 government letters. I assume the motion in limine is a 17 reference to age, grandmother, gray hair. That was -- the 18 pretrial motion in limine was Ms. Stewart should not be able to 19 say she's a grandmother. I assume that's the issue. 20 MR. BARKOW: That was one of the parts of that motion, 21 your Honor. Others involved the political situation in Egypt; 22 human rights -- alleged human rights abuses in Egypt; the 23 validity or invalidity of the SAMs; and I don't have them all 24 off the top of my head, but there were several issues that we 25 raised in that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7169 4a7esat4 1 THE COURT: Was that the second motion in limine? 2 MR. BARKOW: It was the second half of the first 3 motion in limine, and then there was a little bit of it in the 4 second motion. I think one or two issues were raised in the 5 second motion in limine and the majority of them were raised in 6 the first motion in limine. 7 In the letter -- which is almost finished, it just 8 hasn't been sent yet; I need to edit it -- it will list all of 9 the ones that we are raising again. And we'll add one or two 10 more issues that we are raising, but I don't think they're 11 going to be surprising issues. They relate to the other ones 12 that we'd previously stated. We're just rephrasing them a 13 little bit in the context of what has happened in the trial so 14 far. 15 MR. TIGAR: Your Honor, Mr. Barkow's statement, of 16 course, these are specific intent offenses, and we'll talk 17 about that in the context of relevancy when it goes to 18 defendant's state of mind. 19 With respect to human rights in Egypt, the government 20 has introduced a number of exhibits about that. The question 21 would be for what purpose things are offered. But I haven't 22 obviously seen the letter that Mr. Barkow says is almost 23 finished. I assume we'll get it sometime late today or 24 tomorrow. It's now Thursday. 25 I have agreed with other counsel that we would put our SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7170 4a7esat4 1 case on first. And I'm not asking for a continuance or an 2 adjournment of the time that your Honor has set. But I signal 3 that we may be stacking up so many issues, the resolution of 4 which is required before we can go forward, that great burdens 5 are being placed on the Stewart defense here. 6 There is simply no reason why the government could not 7 have reurged these issues at some prior time. That's OK, they 8 can decide that. But I'm at the Court's pleasure as to what 9 schedule we should respond to this letter on, given that we 10 also have a 24-hour thing on the letter that Ms. Baker's going 11 to send us. 12 MR. BARKOW: Your Honor, just very briefly. I can 13 submit the letter very soon after I get back to my office. As 14 I said, it's almost done. And it isn't going to be 15 substantive. It's going to list the issues we raised 16 previously and list, I think, two more which are closely 17 related. 18 I can say now what one of them is, which is slightly 19 different, but it's going to list the earlier issues raised. 20 It's going to modify the one that we raised about the status as 21 a grandmother to also involve -- one of the exhibits that was 22 proposed is a family picture, or I think maybe two of them. 23 And we're opposing that kind of evidence. 24 And then an additional issue that we're raising 25 relates to testimony about the facts and circumstances SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7171 4a7esat4 1 surrounding her underlying representation of persons other than 2 Abdel Rahman; for example, testimony by Ms. Stewart where she 3 represented a particular person and would recount the facts and 4 circumstances of that case and speak about that case and what 5 it meant or something like that. That's another area that 6 we're raising. 7 But every other thing that's mentioned in the letter 8 is something that was mentioned in the earlier set of motions 9 in April, I think it was, and it's not -- there's no further 10 briefing on it. It's just raising those issues again. 11 THE COURT: And you asked me then to go back and 12 unearth the briefs submitted on the motions in limine, which I 13 have, I keep this. I -- 14 MR. BARKOW: We can attach them, your Honor. We can 15 include them. 16 THE COURT: Because the defendant responded to the 17 first motion in limine and dismissed the second one in the 18 course of argument. And I denied the second one without 19 prejudice, I think, in the course of argument. 20 MR. BARKOW: We can submit the pages of the earlier 21 briefing as well, your Honor, if it would be more convenient 22 for the Court. 23 THE COURT: Probably helpful to give me both sides. 24 Without deciding all of the motions, I would be -- I 25 would attempt to be reasonable in the scope of the motions SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7172 4a7esat4 1 in limine. The parties are entitled to introduce themselves if 2 they're going to testify to the jury. And a certain amount of 3 background information is something that the witness is 4 entitled to present to the jury. So, I would suggest that in 5 doing the motion, you look at that carefully. And then I will 6 decide the 403 issues. 7 It's also clear that if you present all of these 8 issues to me, I would normally decide them orally. I don't 9 decide those in a -- usually -- it's the same way it's decided, 10 issues relating to the various exhibits in the course of trial. 11 So it is -- it becomes unthinkable to me that you would have 12 said, OK, Judge, the government rests today and defendants 13 present their case bright and early Tuesday morning, 9:30. It 14 just -- that makes no sense. 15 Certainly the defendants have to respond to your 16 motions, and I'm cognizant of that. But I also have to decide 17 them in a way that explains them to the parties. And I've told 18 the jury that we're beginning on Wednesday morning. 19 Will your letter respond on the 9/11 issue also or 20 were you going to do that orally? 21 MR. BARKOW: May I have a moment, your Honor. 22 (Pause) 23 MR. BARKOW: Your Honor, the issues -- 24 THE COURT: Could I before you -- let me raise another 25 point with the parties on that issue. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7173 4a7esat4 1 Whatever I decide on that issue, and I have views, 2 could be affected by the scope of direct. And there are whole 3 groups of possible testimony that it would seem to me it would 4 behoove the parties to talk about in the first instance as to 5 the scope of direct and as to what would open cross. 6 MR. TIGAR: Well, your Honor -- 7 THE COURT: Certainly being a grandmother would not, 8 but -- 9 MR. TIGAR: I understand, your Honor. No, I hear the 10 Court. 11 And what I had hoped for, what Ms. Shellow-Levine and 12 I had hoped for by filing that motion was to have the 13 government's response as to what it thought the issues were and 14 to hear the Court's views about the matter. Because the 15 subpoenas that have been addressed to the press -- 16 THE COURT: Yes. 17 MR. TIGAR: -- suggest to me what the government 18 thinks is the permissible scope of inquiry here. We've had 19 briefing and argument about it. And however, I well understand 20 that the Court might rule X and then I might through indirect 21 examination open the door. Indeed, the door opening concept is 22 one that we will use in going back to the transcript to respond 23 if the government persists in some of these limine motions. 24 So I don't think it's a fruitless endeavor to ask the 25 Court to express the Court's views on this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7174 4a7esat4 1 THE COURT: Well, the first question would be without 2 more, would the government say that on cross it should be 3 allowed -- without more, just, you know, based upon the case so 4 far, if the defendant takes the stand -- and let me underline 5 something, as I've repeatedly told all of you: Whether any of 6 the defendants testify is completely up to the defendants 7 advised by counsel. They have the absolute right to do that. 8 They have the absolute right not to do that. That is up to the 9 defendants. 10 Now, if the defendant took the stand, what is the 11 government's position as to whether it would open that issue on 12 cross? 13 MR. BARKOW: Your Honor, with respect to 9/11, the 14 Court is aware of the press subpoenas that were litigated. 15 There are also a few, a very few, exhibits that touch on it. 16 But the real thrust of evidence, I think that the 17 Court is aware of and that the government is aware of about 18 9/11, is the Packer subpoena. And it is the government's view 19 that that evidence, as we articulated in that brief, is at 20 issue because one of the elements of the offense of Count 4 and 21 5 is intent to further a conspiracy to murder. 22 Now, the government does not intend to cross-examine 23 Ms. Stewart extensively by any means about the events of 9/11, 24 or really even about the events of 9/11, but we do, as we 25 articulated in the Packer brief, our Packer brief, we do think SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7175 4a7esat4 1 that the statements made to Mr. Packer are relevant to show an 2 intention to further terrorist violence and, therefore, to 3 provide material support to a conspiracy to kill or to kidnap. 4 And so I think it would be fair to assume that the 5 government, depending on the direct examination, would 6 anticipate using that evidence in a cross-examination but -- 7 and also evidence that is different. But in I guess in a 8 similar vein, the statements made to Mr. Free that were also at 9 issue that supported directed violence. 10 Those issues in our theory of relevance to the case 11 were articulated in our motion surrounding that evidence. And 12 we do view it as relevant to the intention to provide material 13 support to the Count 2 conspiracy. 14 THE COURT: There is a very narrow issue, and I can't 15 decide broader issues without seeing, for example, specific 16 documents that were being referred to. 17 The narrow issue would be whether the defendant could 18 be asked what she thought of the events of 9/11 and statements 19 she had made about 9/11. That's a -- as it appears to me, 20 without having it fully briefed and argued, that that is a line 21 of questions phrased just that way that would not be allowed at 22 this point because this case is not about 9/11. And the 23 balancing factors about what a person thought about 9/11, which 24 is not the direct conspiracy charged in this case, etc., would 25 lead me to say without more that those narrow questions would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7176 4a7esat4 1 not be allowed. 2 That doesn't mean that the defendant's statements 3 about other -- other statements about directed violence might 4 not be allowed for motive, intent and state of mind. But the 5 narrow questions about 9/11, statements about 9/11, thoughts 6 about 9/11 would, without further briefing, it appears to me, 7 not be allowed. So -- 8 MR. BARKOW: Your Honor -- 9 THE COURT: Again, I haven't been shown the specifics 10 but, you know, I have a lot of background in the case. 11 MR. BARKOW: Your Honor, yes. I'm sorry. 12 One of the reasons I'm rising is our LiveNote computer 13 is not working very well, and we just wanted to make sure we 14 understood what the Court said. I think that we understood the 15 Court to say that at this point, without more direct questions 16 about 9/11 -- or her statements about 9/11 or her views of 9/11 17 would not be permissible without more on direct, but that -- 18 THE COURT: Correct. 19 MR. BARKOW: But that does not mean that questions 20 about directed violence are not permissible, but we did not 21 hear the Court say they were permissible, but the Court's 22 comments did not necessarily mean that directed violence 23 questions are inappropriate; is that -- our computer isn't 24 working. I just want to make -- 25 THE COURT: You heard me precisely right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7177 4a7esat4 1 MR. BARKOW: OK. With respect to the other exhibits, 2 your Honor, at this point we don't actually anticipate using 3 other exhibits. They're out there and the parties know about 4 them. If something happened that we thought that it was 5 appropriate to use them on cross-examination, because of the 6 sensitivity of this issue, we would seek to clear that with the 7 Court in advance. 8 So the primary evidence about 9/11 that we would 9 propose to use would be the statements or the views expressed 10 to Mr. Packer. And so that that -- the other evidence I 11 alluded to is just to make the Court aware there are other 12 things out there, but we're not asking the Court to look at 13 them now because, if nothing else changes between now and then, 14 we wouldn't use them on cross-examination but they exist and so 15 other things might come up. 16 If we thought the door was opened, we'd ask permission 17 to do it before we did it with respect to those exhibits. So I 18 just wanted the Court to know that they existed. 19 THE COURT: Were my views on this subject useful at 20 this point to the parties' understanding of where I was, where 21 I am? 22 MR. TIGAR: Yes, your Honor. The views the Court 23 expresses are very useful to us. And I appreciate the 24 Court's -- you know, giving us that guidance. 25 I understand the Court is not ruling definitively. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7178 4a7esat4 1 understand all the limitations, but I thank the Court for 2 giving us the benefit of those observations. 3 THE COURT: I don't think I have to rule on the 9/11 4 issue at this point. I think I have given you the sufficient 5 guidance as to where you are on 9/11 at this point. 6 MR. BARKOW: We agree, your Honor, and we will raise 7 those issues before we proceed there in cross-examination. 8 MR. TIGAR: I accept the government's representation 9 as to how it intends to handle these matters, your Honor. 10 THE COURT: OK. Anything else that I can do now? All 11 right. 12 Any time on Tuesday that -- 13 MR. TIGAR: These are full days for us, your Honor, 14 and so as early in the morning as the Court would find 15 convenient. And either in the Court's courtroom at Pearl 16 Street or here, that's a matter of indifference to us. 17 THE COURT: We usually -- it's probably more 18 convenient here. So 10:00 Tuesday morning, unless things get 19 resolved in a way that we don't have to meet, which would 20 please everyone. OK. 21 MS. SHELLOW-LAVINE: Your Honor, if I could tender to 22 you the Stewart exhibits for one of your law clerks, perhaps. 23 THE COURT: Sure. 24 (Adjourned to October 12, 2004, at 10:00 a.m.) 25 GOVERNMENT EXHIBITS SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7179 4a7esat4 1 Exhibit No. Received 2 525, 525T 534, 534T 540, 540T, 542, 542T 7093 3 2313-9 . . . . . . . . . . . . . . . . . 7095 4 2313-5 . . . . . . . . . . . . . . . . . 7096 5 2313-7 . . . . . . . . . . . . . . . . . 7096 6 2312-43 and 2312-43T . . . . . . . . . . 7098 7 2307-1 . . . . . . . . . . . . . . . . . 7099 8 2406-2 and 2406-2A . . . . . . . . . . . 7101 9 2415-9 and 2405-6 . . . . . . . . . . . . 7101 10 2070 and 2070TA . . . . . . . . . . . . . 7102 11 2028 and 2405-6 . . . . . . . . . . . . . 7111 12 2614 and 2639 . . . . . . . . . . . . . . 7120 13 2637 and 2638 . . . . . . . . . . . . . . 7125 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300