7180 4acesat1 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 12, 2004 8 10:10 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7181 4acesat1 1 (Trial continuing) 2 (In open court; jury not present) 3 MR. FALLICK: Your Honor, we went to the MCC this 4 morning to work with our client but he was produced in court 5 today. He's in the cell block. We've asked that he be sent 6 back and then we'll perhaps go over and see him again. 7 THE COURT: Absolutely. Mr. Fletcher advises that he 8 made the call. 9 MR. FALLICK: Thank you. 10 THE COURT: My list of items is the documents from 11 Mr. Elliott, the exhibits for Ms. Stewart and the 12 correspondence on the issues raised by the motion in limine. 13 MR. TIGAR: Your Honor, we are the proponent of the 14 evidence and the movant -- excuse me, and the responder on the 15 in limine. 16 I'm prepared to start saying our position. Does the 17 Court have views about some of these things or tentative views 18 that would guide the discussion? 19 THE COURT: Yes. 20 MR. TIGAR: Because I would appreciate knowing them. 21 There's -- as I think it would materially shorten the 22 proceedings and would assist in our making an approach to these 23 things. 24 THE COURT: I would take the issues in the following 25 order: The Elliott documents, the exhibits for Ms. Stewart and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7182 4acesat1 1 the motion in limine. And I have some tentative views with 2 respect to the exhibits relating to Mr. Elliott. I have -- so 3 let's begin with the documents relating to Mr. Elliott. I 4 really do want to listen to the parties on this. 5 As of the time that I reviewed the documents over the 6 weekend, the defendant had proposed 22 exhibits to be used with 7 Mr. Elliott: L S1000 through LS1021. Of these 22 documents, 8 there were no objections to the admissibility of seven: 9 LS1002, LS1006, LS1008, LS1017, LS1018, LS1019 and LS1020. 10 For the remaining 15 documents, the government 11 objected that the documents contained material that is 12 irrelevant to the case and confusing and unfairly prejudicial 13 under Federal Rule of Evidence 403. The government appears to 14 agree that those portions of the documents that relate to 15 system three and to system crashes or the recording or 16 archiving of telephone calls or the nonaudio data related to 17 such calls, SRI, would be relevant; however, the government 18 maintains that portions of the documents relate to other 19 systems and aspects of the system that are irrelevant to any 20 issues at trial. 21 In the correspondence the government did not appear to 22 object to the defendant's effort to show Mr. Elliott's lack of 23 knowledge of the documents or aspects of the documents but 24 objected to their admission or reading them to the jury. The 25 defendant's correspondence is not very helpful to making a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7183 4acesat1 1 showing of relevance of the documents. 2 The defendant argues that Mr. Elliott's lack of 3 knowledge about the documents makes them relevant to undermine 4 his credibility. That does not make the documents relevant, 5 and any slight relevance would be outweighed by confusion and 6 unfair prejudice if the only purpose were to show that 7 Mr. Elliott was unaware of the documents. 8 The defendant says that the whole reliability of the 9 Lockheed Martin and Raytheon systems is at issue and that the 10 defendant cannot determine the basis for the assertion that 11 only system three was used for the surveillance. That is a 12 fair question. However, the entire Lockheed Martin system and 13 Raytheon systems are not at issue. The question for the jury 14 after the preliminary determinations by the Court is the 15 authenticity and reliability of the recordings in this case. 16 The defendant appears to understand that because while 17 arguing that she is entitled to rebut the claim of the 18 reliability of the entire system, she says, "we will focus 19 questions on the portion of the system used to record calls in 20 evidence because a broader inquiry would not be productive." 21 Michael Tigar, October 8, 2004, letter at 2. 22 The defendant also argues that gaps in coverage may be 23 relevant but there is no effort to show how anything in the 24 documents is relevant to any gap in coverage that is relevant 25 to this case. Therefore, the defendant should make some SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7184 4acesat1 1 showing before the admissibility of the documents on an 2 individual basis why the 14 documents to which there are 3 objections contain any items or portions that are relevant. If 4 there are such portions, then my initial inclination would be 5 that the jury could consider the document and judge its weight 6 and the parties can argue as to the weight of the document. 7 The documents fall into individual categories. There 8 are seven documents that are the Lockheed Martin monthly 9 project status reports. These are LS1000, 1001, 1003, 1004, 10 1005, 1010 and 1011. The defendant should point out, if the 11 defendant wishes at this point, what the arguably relevant 12 information in those individual documents are. The defendant 13 may well wish simply to reserve and ask Mr. Elliott about them. 14 Similarly, there are four Lockheed Martin monthly 15 error message reports which do contain some entries with 16 respect to system three, but the significance of those reports 17 is not disclosed in any of the correspondence. This is LS1007, 18 LS1009, LS1012, LS1013. There are two documents, LS1014 and 19 LS1015, which are the SpiderNet initial production acceptance 20 test report, as to which based upon the correspondence and the 21 review of the document and what the Court has previously said 22 about Mr. Elliott's testimony, it would appear that the 23 document would have some relevance so that it would appear at 24 this point to be admissible. 25 LS1016 is a memo from Mr. Taylor to Mr. Zobrist. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7185 4acesat1 1 government appears to concede that portions of the document are 2 admissible, although portions like the references to the user 3 manual are irrelevant. Given the portions of the document that 4 are admissible, there would not appear to be a reason to redact 5 the document. 6 There are two additional pages, 0075 and 0076, which 7 are not part of 1016 but which are offered as now separate 8 documents. They would also appear from the content to be 9 admissible. 10 LS1021 are administrative support notes. The 11 government appears to concede that some portions of the 12 document are admissible, although the government doesn't point 13 to the specific portions. There are some notes in the 14 document -- such as tone at beginning and end of session, 15 painful to hear, on-hook time too short, one call broken into 16 eleven sessions -- which are arguably admissible, given the 17 admissibility of some portion of the document. I would not at 18 this point be inclined to further redact. 19 All of these documents are objected to solely on the 20 basis of relevance and 403, and I have already dealt with many 21 of these issues in a prior order. But those are my -- the 22 parties asked for some guidance with respect to where I was on 23 the correspondence, and there you have it. 24 MR. TIGAR: I appreciate that very much because it 25 does focus our concerns. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7186 4acesat1 1 We come at this issue with something of a disadvantage 2 in terms of the quality of access to the underlying material. 3 We had at an earlier time proposed meetings of technical 4 experts and those didn't come to pass. The government was 5 entitled, I suppose, to refuse our requests, but we've never 6 been inside the room where these machines operate. We've never 7 seen them. We haven't had that sort of global access. And it 8 would not be expected that they would because there's much 9 about that system that presumably is classified and that a 10 court would uphold a lack of access to. 11 But the handicap is this: That even with this 12 universe of documents, our technical consultants, because 13 they've never seen the machines or had any supervisory 14 responsibility, wouldn't be able to tell us very much. And so 15 I start with that as simply a way of talking about our need to 16 be able to do something here. 17 And our second observation is that -- I'm sorry, did 18 the Court -- 19 THE COURT: No, the observation I was going to make on 20 that is that the point that I made in the opinion was that 21 after -- the defendant has absolutely no obligation to do 22 anything, as I have repeatedly said. Defendant can challenge 23 the government's evidence. 24 But the defendant has always talked about the 25 technical experts. And on the last motion, I looked at what SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7187 4acesat1 1 was given to me and I looked at what the trial record was of 2 these calls with this system, these systems. And I've listened 3 to them when they've been played. I've looked at the -- all of 4 the transcripts. The defendant has had access to thousands of 5 calls, was able to compare those with the assistance of 6 technical experts to the calls in evidence to raise questions 7 about authenticity and accuracy. 8 And despite all of that and the assistance of 9 technical experts, there was no -- no substantive basis to 10 challenge that the calls are what they purport to be, authentic 11 and accurate, as I've said. 12 Now, despite all of that, the defendant certainly has 13 the opportunity to make all of the arguments to the jury, that 14 they're not authentic and they're not accurate. And so the 15 question then becomes these documents and are they relevant -- 16 MR. TIGAR: Are they relevant, yes. 17 THE COURT: -- to that or are they simply an effort 18 to confuse? And I am extremely attentive to the reasonable 19 efforts of the defendant to challenge the government's evidence 20 as to authenticity, accuracy. If these documents -- and I've 21 already indicated that some of them may provide useful 22 information to cross-examination, but when I was, you know, 23 looking at the documents, looking at the presentations, I 24 asked -- show me. 25 MR. TIGAR: I will show you, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7188 4acesat1 1 THE COURT: OK. 2 MR. TIGAR: And I'm grateful for what you just said, 3 because in addition to what you've said, we've had the 4 assistance of the federal defender service. We've been talking 5 to lawyers that have been involved in these issues and experts 6 that have been involved in these issues. We've had the 7 opportunity to speak, indeed our -- to others. Our initial 8 work on this was inspired by a conversation with a senior 9 intelligence official now retired from the government. 10 And I could not disagree more with your Honor's 11 characterization of where we are in terms of the facts. And I 12 say that respectfully, and I say it because as a defense 13 counsel, we have an obligation to make our case and to put it 14 to the jury. And often that involves disagreeing with the 15 Court's take on the facts and the issues. 16 For example, your Honor, we have this call that came 17 in about Mr. Sattar calling Mr. Clark, Ramsey Clark and 18 Mr. Yousry being on the phone. Then we got the five portions 19 of what was essentially the same continuous telephone 20 transaction that led up to calling Ramsey Clark. These 21 documents -- and I want to go through them with this in mind -- 22 show that the system made mistakes. 23 And one of the kinds of mistakes it made was that it 24 interrupted calls. It had gaps when it wasn't recording. It 25 didn't pick up calls. It overwrote calls. There's a lot of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7189 4acesat1 1 language like that in these documents, and I'll get to it. The 2 purport of this is not that what the jury heard is not what was 3 recorded. That's not the authenticity issue for us. 4 It is what Mark Twain called the difference between 5 lightning and the lightning bug. You take bug out, you have 6 lightning, and that's a big difference. And the system's 7 inability to behave in a consistent manner is relevant to our 8 assertion. 9 THE COURT: But could I just stop you there. 10 One difficulty with that argument, which is one that 11 was developed in the -- out of the presence of the jury, of 12 course, when this argument came up, was the fact that the -- 13 there were segments that the defendant believed should go along 14 with the segments that the government put in was always open to 15 the defendant to present, because the defendant had access to 16 all of those segments. And, in fact, the issue came up when 17 the defendant said, look, there were other segments that should 18 go in. And the government said, OK, we'll put in the other 19 segments. 20 MR. TIGAR: Your Honor, with all -- 21 THE COURT: So that with respect to every call, every 22 call, and you can correct me if I'm wrong, the defendant can go 23 back to all of the information that's been presented and asked 24 what calls are there before, what calls are there after, do we 25 want the calls before and after. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7190 4acesat1 1 MR. TIGAR: Yes. Well, your Honor, you're right about 2 what you're saying, but I don't think -- I must not have 3 expressed myself clearly. 4 I'm not trying to reargue the authenticity 5 determination that your Honor made, I really am not. But this 6 is not a case in which somebody puts a phone tap on -- or a 7 listening device on John Gotti for 12 months and he can say, 8 look, right after that conversation I spoke to Joe, I spoke to 9 Mike, or they left this part out or they left that part out. 10 The recorder must have stopped then because I clearly remember 11 saying, don't kill him, or whatever. 12 This is a case in which the calls are in a language 13 Ms. Stewart doesn't speak. She doesn't know these people. 14 They're coming in either for intent, knowledge and state of 15 mind or under 801(d)(2)(E). We can't call up Mr. Taha and say, 16 by the way, Mr. Taha, did you have another call with Mr. Sattar 17 that we don't know about? Mr. Sattar is not accessible to us 18 for those purposes. We have some limited contact with his 19 counsel. 20 In short, we have to rely on the system getting it 21 right, on the system having recorded all the words, and when we 22 want to argue to the jury that you can't assume, members of the 23 jury, that everybody had access to the total universe of 24 conversations, you see, because that's just not true. 25 Everybody didn't have access to the total universe of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7191 4acesat1 1 conversations had on these phones during the relevant time. 2 They just didn't. 3 And, in fact, the assertion that they did or could 4 itself relies on the credibility of the people who brought us 5 the system, including Mr. Elliott. That's our point with 6 respect to the calls, your Honor. 7 And I'm not trying to waste the Court's time. I'm not 8 trying to sew confusion. I've been litigating these kinds of 9 cases and these kinds of issues for -- ever since I started 10 practicing law. And I thought there was an issue, and I think 11 there is. 12 Now, with respect, then, to the 401, 402, 403. 403 13 determinations in our respectful submission differ, depending 14 on what the issue is. 401 basically is designed to say that if 15 the jurors think that something is not important, they'll give 16 it zero weight. If it has any tendency to prove a matter at 17 issue, it comes in. 18 Indeed, Judge Weinstein once went so far as to say in 19 a reported opinion that 403 is expressly and explicitly 20 reserved for prejudice issues. Of course, that's not right 21 because that's not what it says. But he actually said that in 22 the Shabani case because he had a theory about admissibility. 23 He's right, so far as he reflects the theory of admissibility 24 that's implicit in 401, in our respectful submission. 25 Now, let's take -- go through these exhibits. The SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7192 4acesat1 1 Lockheed Martin reports. Yes, there are seven of them. Now, 2 if Mr. Elliott testifies that he knows admissibly that system 3 three is the only one, that doesn't, of course, exhaust the 4 issue, because the fact that system three was dedicated to a 5 particular investigation or that a part of system three was 6 wouldn't answer the question, what happens if system three goes 7 down? That is, what kind of redundancy do you have to make 8 sure you're not dropping calls? 9 Now, the project status report. This is audio cuts -- 10 THE COURT: What document? 11 MR. TIGAR: I'm looking at -- sorry, at LS1000, your 12 Honor. 13 Now, system three, the problems were AP2 indicated -- 14 this is page 228, your Honor -- track allocation failure, disk 15 4D had to be formatted, software reinstalled, post IPL. So 16 system three is there. 17 The question there, your Honor, is, well, what do you 18 do when there's a track allocation failure? What do you do 19 with reinstalling the software? Are you still recording calls 20 while that's happening? After all, the Lockheed Martin system 21 doesn't record calls in files. 22 If you look at a directory of a Lockheed Martin 14-gig 23 tape, you won't get your standard Windows Explorer bunch of 24 files. You'll get a string of data, which is interrupted with 25 text. And that, apparently, is how they did the retrieval. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7193 4acesat1 1 I'm not sure, because I need to ask Mr. Elliott about it, but 2 now that I understand it, after this production process, I 3 begin to see some of the problems that they'd be having here. 4 So that clearly is right. 5 Task 13 .VOC conversion, the compatibility of MO 6 disks -- 7 THE COURT: I'm sorry. Where are you? 8 MR. TIGAR: Page 229, I'm sorry, your Honor. 9 Ms. Shellow-Levine has rebuked me already with a Post-it about 10 not telling the pages. I'll try to be better. 229, your 11 Honor. Middle of the page, I'm fine. Compatibility of MO 12 disks across multiple platforms. DOS fact file system, so 13 forth and so on. 14 Well, one of the issues in this case is whether there 15 is data integrity as these call files, digital files migrate 16 across platforms and media. And that's been the continued data 17 modified business here. 18 And, of course, the fact is that the FBI has no 19 external file system that would ever permit it to find out if 20 it lost something as digital files migrate across media and 21 systems. By "media" I mean from the EMTs to the MOs, and by 22 "systems" I mean from Lockheed Martin to UNIX to Windows. 23 In addition, at page 232 there appears to be a -- some 24 reports of system problems, but without knowing -- 25 THE COURT: I'm sorry. Page? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7194 4acesat1 1 MR. TIGAR: I'm sorry, 232, your Honor. There's that 2 summary chart. 3 And as to that, if Mr. Elliott doesn't know what that 4 is, well, somebody can bring it out on direct or cross. I 5 don't think there's any harm in admitting that. I certainly 6 would not make an improper suggestion about it. But it is a -- 7 appears to be a global record. 8 Turning then to 1001, this is another Lockheed Martin 9 report. At Bates 203 there's a system three error, and there 10 are -- at 204 there is a discussion of a maintenance task about 11 which I would ask Mr. Elliott, because I don't know what it is. 12 Also on 204 it appears to be global in nature. There is a 13 system three sector reassignment which may or may not be 14 significant because it says there's no data lost. The question 15 is how they know that and how they know it because there is no 16 external, i.e. external to the system, way of verifying data 17 loss on the Lockheed Martin system, as we understand it, and as 18 one of the 302s said. 19 Then 1003 has at page 0178, Bates 178 -- 20 THE COURT: I'm sorry, hold on. 21 MR. TIGAR: 1003, your Honor, Exhibit LS1003. 22 THE COURT: There's nothing on -- I got it, all right. 23 MR. TIGAR: I'm going through the exhibits in the 24 order which your Honor did. This is a lot -- doing the 25 Lockheed Martin's first. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7195 4acesat1 1 At page 0178, a system three format and software 2 installation, and then on the third psych trip the entire 3 system was brought down by -- that's towards the bottom of the 4 page. And I don't know whether that was a human that brought 5 it down or an event, because it's redacted. But it was brought 6 down by something. 7 All processors indicated a halt condition. 8 Well, then the question is, what happens when your 9 entire system is brought down? What do you do? 10 Now, it is true that in 0179 it says replace redo, has 11 a system three reference, but doesn't say that's the same 12 visit. Then 0181, same exhibit, we begin to see archive 13 failures. 14 Now, this is '98, November '98, your Honor. We are 15 more than three years into this surveillance and yet we are 16 three-and-a-half years from indictment. And they're having 17 archive failures. We know what those are. 18 Turning now to the next Lockheed Martin, 1005. 19 THE COURT: OK. 1004. 20 MR. TIGAR: I'm sorry, your Honor. Did I say -- thank 21 you, your Honor. Turn to 1004. 22 Now, at 252 we see a February '99 visit, and they're 23 attempting to create a formatting utility for a 1024K bites per 24 sector magnetic optical needle media. This appears to be the 25 beginning of the transition across media from the EMTs to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7196 4acesat1 1 MOs, the magnetic optical. But the problem is there's a bug. 2 THE COURT: Where -- 3 MR. TIGAR: That's where I am before, your Honor. 4 Relates directly to the .VOC conversion. 5 Now, I don't know what software enhancement we're 6 talking about at 258, your Honor, 258, but there are a total of 7 60PTRs, which are needs for service on that software. And that 8 is at that page. 9 Turning to 1005, your Honor, this is March '99, and at 10 item 4 at Bates 154, we have a bug in the utility program on 11 the .VOC conversion. And that bug in the utility program for 12 .VOC, 154, your Honor, in 1005, that problem appears to run 13 across a number of these reports. It would be surprising if 14 the man in charge didn't know anything about it, but this is, 15 you know, in our view admissible. 16 Then we have at the status summary. We have 20 17 miscellaneous repair activities for that reporting period. 18 Turning to LS1010, we have at 278, your Honor, system 19 failures with respect to system three on psych trip two and 20 psych trip three, format and software reinstallation and power 21 supply failure, drive -- diskette drive power supply failure. 22 And then at Bates 279, we have a summary clean-up 23 routine being modified to detect the corrupted summaries. And 24 then the paragraph above that has the invalid summary dates. 25 At the bottom of that page 279 is a format rebuild on system SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7197 4acesat1 1 three. 2 At 281, page 281, we have a number of service issues, 3 and that again is the archive failures, 281. So here in May 4 '99 we're still having archive failures. 5 Finally 1011, in this group of exhibits, your Honor, 6 at 298 there's a system three problem. I can't tell what it is 7 without going to the codes that are amongst these other 8 exhibits, but it is relevant to system three. And -- 9 THE COURT: I'm not -- page 298? 10 MR. TIGAR: Yes, your Honor. Let me look back and 11 make sure that I've given it correctly. Yes, your Honor, 12 middle of the page, system three installation of PTF30. Now -- 13 so those are the Lockheed Martin reports. 14 Now I'm going to go back to the second group, which 15 are the error message reports. These documents are in 16 handwriting mostly and are somewhat difficult to decipher. 17 However, they all do have -- and I'd like to go to 18 Exhibit 1007, Bates 343, as an example. And you can see 19 that -- you can read across here in its printed form, and then 20 someone with the same handwriting pretty much throughout the 21 series tells us what the mistakes are. 22 And system three, reading across, in week -- this week 23 in three, March of 1999, system three apparently did have a 24 processor failure. Looking at page 346, system three was down 25 for nine hours and 20 minutes, and again for an hour and 18 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7198 4acesat1 1 minutes. Down means it's not recording calls, I can assume. 2 That's what it means when a system is down. 3 And then the question would be, as I said before, 4 well, what happens then? Does it then go to system four or 5 five? Because it doesn't matter what the answer is. If the 6 answer is no, well, then nothing's recorded. If the answer is 7 yes, then we need to be concerned about the reliability of the 8 system as a whole. And that with respect to those four 9 exhibits, 1007, 1009, 1012, 1013, that's the kind of 10 information that one gets from that, recorded at or about the 11 time of the occurrence, system down, processor failed. 12 In today's world, as I said in my memo, those are not 13 things that require a technician to tell us what they mean. 14 Those are experiences that we all have -- or not all have, but 15 that most people have in their daily lives more often than they 16 would like. 17 Now, then we turn to 1014 and 1015. These are the 18 documents about SpiderNet. And some of the observations I'm 19 going to make could also be made about some of these later 20 exhibits that we just obtained, such as what we've marked as 21 LS1024. I don't know if your Honor has that, but that is the 22 document most recently produced to us. It's Bates 924. It is 23 an October 20, '99, FBI report approved by Mr. Elliott. 24 And it raises, in addition to the admissibility issue, 25 a Jencks issue because we're told that there's a request for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7199 4acesat1 1 blank capabilities for SpiderNet Title 50 monitoring system. 2 This is a document approved by Mr. Elliott, and the government 3 has never said the contrary, or proved to the contrary, which 4 is what they would have to do since his name is on it as having 5 proved it. 6 But without knowing they're requesting for the 7 SpiderNet system, you know, what they thought was important, 8 it's hard to know. I can ask Mr. Elliott, but before asking 9 him, because this is his document, I need to know what my 10 limits are. Was the redaction because of relevance or was it 11 because it's classified and I can't say it in open court? 12 That's a side issue, because I -- you know, I don't -- I really 13 do not want in front of this jury to get into that issue, and I 14 won't do that. But that's one we're -- I can't figure it out. 15 Now, coming back to -- 16 THE COURT: It's not classified. There's no -- 17 MR. TIGAR: It's a relevance redaction, your Honor? 18 THE COURT: There was no classification on the 19 document. 20 MR. TIGAR: Well, then may I take it that I can then 21 ask him what kind of a thing this was supposed to do or -- 22 THE COURT: Let me wait for the government. 23 MR. TIGAR: All right. Thank you, your Honor. Then 24 I'll turn to 1014. 25 These Raytheon systems, they installed this system and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7200 4acesat1 1 it was supposed to be a marked improvement over the 15-year-old 2 platform of Lockheed Martin. And even though they had all of 3 this extensive testing of it, they found that there were issues 4 that arose, such as call direction not functioning properly 5 when they'd say fix that. Daylight savings time, archival 6 trail, new trails do not get archived, flash hook not 7 detected -- I'm sorry, Bates number on that one -- we don't 8 have a -- I'm sorry. It's relevant portions -- it's a summary, 9 your Honor, relevant portions of appendix D. It's in LS1014, 10 and it is the third page from the back, your Honor. 11 So we have archiving problems, we have call direction 12 problems and we have flash hook problems. 13 THE COURT: By the way, my recollection is that with 14 the documents last night, there's a revised version of that. 15 So -- 16 MR. TIGAR: I'm sorry? 17 THE COURT: There was a revised version -- 18 MR. TIGAR: Yes, your Honor. 19 THE COURT: -- of that, so -- 20 MR. TIGAR: Right. We would -- after the Court has 21 ruled, we will go through and make sure that we have the latest 22 of all of these that are in the notebook. I have the 23 revised -- I was consulting the one that's in the notebook, 24 which I think is different than the revised. But the issue in 25 terms of admissibility, we respectfully submit, is the same. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7201 4acesat1 1 You know, this document, these two documents do 2 contain a rather large amount of information that, you know, as 3 far as I'm concerned probably is helpful because it shows that 4 the government tried to make this thing right. But of course 5 it didn't turn out that way because already in June 21 of 2000, 6 SpiderNet is breaking one call into eleven parts, which was the 7 same kind of problem they were having with Double Dagger and so 8 on. 9 And then there's the comment elsewhere that the 10 language specialists do not feel people listen to them. 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7202 4ACMSAT2 1 MR. TIGAR: The 1021, I don't have a context for this. 2 This is a document that came to us. But the relevance of it 3 seems to us clear because in fact it refers to these same 4 painful to hear. There was only one phone call Ms. Banout ever 5 heard with pain in it. And then 11 sessions, cross talk. The 6 11 sessions sounds familiar because that's an issue we dealt 7 with. So I am going to assume -- it is inferrible within the 8 broad meaning of 401 what the -- what this relates to. 9 May I have just a moment, your Honor? 10 THE COURT: Sure. 11 MR. TIGAR: Of course, what I have just read relates 12 to a portion of 1018 as to which I'm not -- the Court says 13 there is not an issue and that is that the LSs thought that 14 their concerns were not being listened to. And that was based 15 on a site visit by Ms. Wordsworth in 2000. 16 Your Honor, that's the discussion of the issues that 17 we see here. And I understand that there are parts of these 18 things I didn't point out to the Court because I don't see 19 their relationship to the case. 20 THE COURT: You skipped over 1016. 21 MR. TIGAR: I did, your Honor. Thank you for 22 reminding me. We broke 1016, I think, with the government into 23 two. 24 We broke it into three, at the government's 25 suggestion, and I'll go by Bates number. Bates 19 has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7203 4ACMSAT2 1 nonconformance with systems specifications. That's a big deal, 2 when an expensive system doesn't perform. I would expect to 3 inquire of Mr. Elliott about that, yes. The 33, Bates 33, item 4 4, the one at the bottom, there is a loss of something there. 5 Again, I don't think this should come in unless Mr. Elliott 6 knows what we are talking about here. This really is too 7 sketchy. So that's what is now 1016B. 8 THE COURT: What does that mean as a practical matter? 9 Would you not be offering -- 10 MR. TIGAR: I don't wish to offer it in the presence 11 of the jury. I would ask Mr. Elliott, does he know -- did he 12 follow the contract compliance issues during the Spider Net 13 installation period, and did he know Mr. Taylor. I would ask 14 him, at some point along the way this document either does or 15 doesn't become admissible. But I don't think it is admissible 16 without my laying a foundation if it relates to something he 17 knows about. And that would be my suggestion about that. 18 THE COURT: What about the other documents that you 19 have noted? 20 MR. TIGAR: The other documents, your Honor, every 21 other document -- and I was about to talk about that -- seems 22 to me that although these documents do contain some material 23 about other systems and so on, if the government establishes 24 through admissible evidence that system 3 was the preferred 25 system, especially if they do that, I don't see the harm in it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7204 4ACMSAT2 1 It would be very difficult for the jury to see what's going on 2 if we redacted everything out except the little teeny portion 3 that relates to what we are talking about, the system 3 4 problem. It would make the document unintelligible. 5 So my thought about that would be that the documents 6 are received, the only -- that would be my motion to the Court, 7 that I would only publish the portions that relate to what's 8 provably at issue here, that I would be fair and ask 9 Mr. Elliott, you know, for what he knows about these things, 10 not with horrifically open-ended questions, because he is an 11 adverse witness, after all, that the government could examine. 12 And at the conclusion of that process or midway in that 13 process, there may be the need for some limiting instruction. 14 This document is received only with respect to the materials 15 that are in the rest -- that relate to this and the jury 16 should, you know, disregard the rest, whatever. That is, I 17 can't know exactly what the limiting instruction would be until 18 we hear more from Mr. Elliott. 19 But certainly to the extent that the 403 objection is 20 that the jurors are going to wander around these documents and 21 seize on things in them that are -- that don't really matter, 22 that's the sort of thing that a limiting instruction is 23 designed for, it seems to us. And to the extent that the 24 concern is that counsel, one of the lawyers in the case might 25 take the document and ask the jurors to make an outrageous SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7205 4ACMSAT2 1 inference from it or an unreasonable inference, one utterly 2 unsupported by the evidence, well, the law is that lawyers are 3 not supposed to do that. And the sanction is not so much that 4 they are not supposed to do it, but then they get interrupted 5 in the middle of jury arguments and that harms their 6 credibility, so they, at least, the lawyers, I know don't do 7 it. It is kind of a very speculative kind of harm. 8 Now, 1016B relates to how failures are to be reported, 9 component downtime. That is to say -- and that's Bates 75, 10 your Honor. It is a single page and it describes the way that 11 errors are supposed to be dealt with. And, in our view, the 12 orderly procedure that was used here, the actual procedure was 13 a great deal more ad hoc than that. 14 Then Bates 76, which we have at now LS1016C, we rely 15 on the field office to report system and/or component down 16 time. Now, there is a redaction later on that says: The 17 system is sized to provide redundant inputs for lines deemed 18 critical, and if and when a failure occurs. It is that 19 redundant input. Every office system, every navigator 20 understands the meaning of redundancy; that is, if I'm sailing 21 in the ocean, I have two GPSs. Why? Because if one fails I 22 would still like to know where I am. And that's what that is. 23 And that undercuts the system 3 exclusivity point, it seems to 24 me, because that in ordinary plain English language that's what 25 that means. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7206 4ACMSAT2 1 So that's our analysis of the documents, your Honor. 2 And I know that the Court and the Stewart defense, we have a 3 difference -- a factual difference. I know the Court has made 4 these findings. But I submit that the kind of inquiry we want 5 to make is relevant to what weight the jury gives to what it 6 hears. And that's the reason that we have taken what is a 7 pretty difficult decision for us to call Mr. Elliott back and 8 to put these things on, because we think that since he is a 9 person that had the kind of access that one needs that that's 10 the way to do it. 11 And I will say again, your Honor, that we didn't do 12 this. We have had a lot of help here, court-appointed help. 13 And at every stage we have checked with the defender's service, 14 we tried to make sure that we are using resources responsibly. 15 Everything I have said to the Court about this -- that's not 16 something I came to court knowing how to talk about -- these 17 are issues that we have identified and that is the basis for 18 our concern and our contention that it is relevant. 19 THE COURT: Ms. Baker. 20 MS. BAKER: As the proponent of these exhibits, 21 Stewart has the burden of establishing their relevance and of 22 establishing that their relevance is not outweighed under Rule 23 403 by the potential for confusing the jury and undue 24 prejudice. And the government respectfully submits that she 25 has not met that burden as to a number of these documents and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7207 4ACMSAT2 1 it is difficult to see how she could do so even through the 2 examination of Mr. Elliott. But to a certain extent that 3 depends upon the extent of Mr. Elliott's specific knowledge 4 about the documents and in making its objections to the 5 documents, the government is, in part, saying that some of 6 these admissibility determinations have to await the 7 questioning of Mr. Elliott to see whether Stewart is able to 8 establish through the questioning of him any relevance. The 9 government finds that doubtful in some instances, but 10 acknowledges that it might be possible. 11 The only potential relevance to any of these documents 12 that Stewart has proffered is that she asserts that they show 13 in various ways that there were times when the recording 14 systems did not record. 15 Again, she doesn't -- as a threshold matter I guess I 16 would argue she doesn't take that argument any next step and 17 really relate it to anything that's going on in the case. What 18 she is focusing on is essentially the fact or the belief that 19 there were some times when there were not recordings made or 20 when there were recordings not archived. But there has never 21 been any effort made to point to any particular period of time 22 when that supposedly happened, and to link that to any evidence 23 that the government has presented in its case, or to anything 24 that would be exculpatory of Stewart. 25 So at this point it is a very abstract assertion on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7208 4ACMSAT2 1 her part, that somehow the jury should not give weight to the 2 government's evidence because at some unspecified periods of 3 time perhaps there were not recordings made or successfully 4 archived. So to the extent that she has proffered any 5 relevance at all, it is the very sort of hypothetical 6 disconnected relevance that doesn't really link to anything 7 specific in the case. 8 And I just want to take this opportunity to say, 9 before I go further, the government would ask that the Court 10 not allow Ms. Stewart to suggest through her questioning of 11 Mr. Elliott or otherwise that she did not have access to all of 12 the calls that actually were recorded and that were able to be 13 retrieved from the recording systems. Because such an argument 14 or an assertion would not be in good faith given the tens of 15 thousands of audio recordings that were produced to Stewart in 16 discovery and the prior litigation that has been had on this 17 subject. 18 So to allow Stewart to imply that she has not had 19 access to these materials to be able to determine when there 20 are gaps in the recordings if there are gaps, or to offer other 21 pieces of recordings or to request under the rule of 22 completeness that the government offer other pieces of 23 recordings, that is simply not accurate and should not be 24 permitted. 25 But to go back to the attempt to show relevance -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7209 4ACMSAT2 1 THE COURT: Let me pause. My understanding is that 2 whatever was there was produced twice in two different formats 3 and that language should not be an issue. 4 MR. TIGAR: That's right, your Honor. And I suppose I 5 could say something about the implication. 6 THE COURT: No, no. 7 MR. TIGAR: Not yours, clearly, but I won't. 8 The discovery production that we had was the subject 9 of months of remedy. We got what we got. An what we got 10 eventually was everything that the system had been able to 11 retrieve. So it is the system's abilities and not what we got 12 that is the issue. 13 MS. BAKER: I just want to make the record a little 14 more clear on that point. As to the few small periods of time 15 when there were recordings made, in other words, for example, 16 written summaries of calls had been prepared so that the FBI 17 knew that calls had been recorded, but then ultimately those 18 recordings had not been able to be retrieved for disclosure in 19 pretrial discovery, those periods of time were specifically 20 documented in a declaration by Agent Kerns that was submitted 21 in connection with some of the pretrial motion practice on 22 this. So as to those particular periods of time the dates -- 23 the date ranges of those are known to the defense and have been 24 known since some time in 2003. 25 MR. TIGAR: That's untrue, your Honor. I'll discuss SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7210 4ACMSAT2 1 it at the end of counsel's argument. Now we are in an area 2 where it is something that's not true. 3 MS. BAKER: As to any other periods of time, if there 4 were gaps in the recording that would be detectible by the 5 defendants based on looking at the universe of recordings that 6 they received. 7 To turn back to the success or lack of success again, 8 linking that to actual relevance to the issues on trial, even 9 if one assumes that there is some level of relevance to the 10 fact -- the possibility that there were not recordings during 11 certain unspecified periods of time, none of which Stewart has 12 particularly identified or focused on or shown the significance 13 of, that doesn't mean, if there is any relevance to that, that 14 doesn't mean that there is relevance to the particular 15 technological reason of why there wasn't recording during those 16 periods of time in the level of detail set forth in these 17 documents. 18 And that gets back to the argument that I made in 19 opposition to Stewart's motion for a mistrial and other relief 20 a week ago or ten days ago, whenever it was. That is, that to 21 the extent that the jury finds it relevant at all that at 22 certain periods of time recordings were not made, that doesn't 23 mean that it is relevant to them whether the lack of recording 24 was because of widget A or widget B within the operation of the 25 recording system. And Stewart has not shown and we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7211 4ACMSAT2 1 respectfully submit that she cannot show any relevance to that 2 second level of inquiry and that's really where these documents 3 come in and why Stewart can't show the relevance or the 4 appropriate balance under 403 to allow for the admissibility of 5 the documents. 6 The government doesn't object to questioning that 7 seeks to establish that there may have been periods of time 8 when there were not recordings made. Again, we question the 9 relevance of that occurring in a vacuum without it being linked 10 to any particular periods of time, but we don't object to that. 11 But then to offer into evidence these documents that 12 may or may not provide very specific technical explanations for 13 why recordings were not made, in the government's view, just 14 goes beyond anything that could potentially be relevant and 15 goes into time wasting and confusion and prejudice. And so 16 just to go through a few of the examples that Mr. Tigar cited, 17 I actually submit that a lot of what Mr. Tigar said in his 18 argument supports my point. He went through and he read to 19 your Honor various portions of some of these documents. 20 And in the course of his reading he was punctuating it 21 by saying, well, I don't know what this means or it is unclear 22 what this particular part refers to. That's the government's 23 point. And particularly if Mr. Elliott doesn't have the level 24 of specific detailed knowledge of the very, very technical 25 workings of these systems and isn't able to look at a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7212 4ACMSAT2 1 particular part of a document and give some explanation of it 2 that the jury could comprehend, then the government submits 3 that the only thing that could result from admitting that 4 document or that portion of the document into evidence is 5 speculation and confusion. 6 For example, Mr. Tigar at one point was reading to 7 your Honor from LS1003, which is one of the Lockheed Martin 8 monthly project status reports, and he directed your Honor's 9 attention to the page with the Bates No. 0181. 10 And on that page there are two tables and each of the 11 tables includes the words archive failure in the title of the 12 table and then has various phrases in the left-hand column 13 under the heading problem, and then has certain numbers that 14 perhaps show the numbers of times when those problems occurred 15 with respect to the particular systems within the Lockheed 16 Martin system. 17 If you look, for example, at table 2-4 on that page, 18 the next to bottom row of that table says in the left-hand 19 column: Re: IPL. That's R, little E, capital I, capital P, 20 capital L, due to tape. Then when you follow across that row, 21 it shows under the heading system 3 that that happened once 22 during whatever period of time this table relates to, and I 23 don't even know if that period of time is indicated in this 24 document. 25 What a Re: IPL is or whether or not that really means SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7213 4ACMSAT2 1 that calls were not in fact archived, I respectfully submit is 2 not -- cannot be detected just from looking at this document. 3 And these are the kinds of entries that are constant throughout 4 this set of documents, these monthly project status reports. 5 And, similarly, in the other set of documents, which are the 6 Double Dagger monthly error message reports, they are just not 7 susceptible of being understood by the jury without a witness 8 who can say what they mean and thereby give some indication of 9 whether or not they are actually relevant to any fact that is 10 material to the trial. Just to look at another example that 11 Mr. Tigar cited in another one of these monthly status reports, 12 the one that's marked LS1004, he directed your Honor's 13 attention to the page with the Bates No. 0238, which -- 14 THE COURT: 1004? 15 MS. BAKER: I may have gotten my pages confused. He 16 made a reference to one of these monthly project reports. And 17 if this is not the right one, nonetheless, I believe the 18 content is sufficiently similar to what he was citing. He was 19 referring to the fact that one of the monthly status reports 20 contains a reference to PTRs and the number of PTRs. He read 21 off a line. What a PTR is and whether or not it has any 22 relation to the ability of the system to make recordings or to 23 archive the recordings is not something that is self-evident or 24 self-explanatory from the faces of these documents. And 25 without testimony that would give some explanation of what such SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7214 4ACMSAT2 1 entries mean and allow for a determination of whether there is 2 relevance, again, the government submits that there is no 3 relevance and there is only the potential for time wasting and 4 confusion and speculation. 5 The same thing, for example, in LS1011 at page 0298. 6 I believe that Mr. Tigar made reference to the line that says: 7 System 3, installation of PTF30. Again, that statement has no 8 relevance without some testimony that shows that it bears some 9 relationship to the recording or archiving of calls. And even 10 then it only gets you to that first step of that chain of 11 potential relevance that I talked about before. And so the 12 prejudice and the confusion would outweigh. 13 So as to this set of documents in particular, which is 14 the monthly project status reports, and also the particular 15 details and line items in the next category of documents, which 16 are the monthly error message reports, if there is any 17 relevance in these documents at all, it is perhaps in the fact 18 that the documents indicate that system 3 was "down." That's 19 the word used for the document, for a certain amount of time 20 within a certain week. I would note that just going by the 21 face of the document the documents do not give any indication 22 of when within that particular week the down time occurred, but 23 if there is any relevance at all -- and we submit that there 24 really isn't for the reasons I said earlier -- that is the only 25 thing in here that's relevant. And the information about the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7215 4ACMSAT2 1 other systems is not relevant and all of the categories and the 2 phrases and what they mean, which Mr. Elliott may well not 3 know, is simply not relevant. So, therefore, the potential for 4 prejudice and confusion and time wasting outweighs any de 5 minimus relevance to these documents. 6 THE COURT: That was only argued for a limitation to 7 the material relating to 363 rather than to redact it. It is 8 not -- the jury follows instructions. And the fact that there 9 are other systems listed and that there are numbers for other 10 systems, the chance that the jury would draw any inferences 11 with respect to that is minimal. The government has 12 represented that system 3 is the system at issue here. Did 13 Mr. Elliott say that? 14 MS. BAKER: Your Honor, I don't know that. I believe 15 that he can. But I don't know that. And as to the evidence to 16 support that claim, it is not something that has yet been 17 presented to the jury. But it isn't just that the government 18 is proffering it without any documentation to support its 19 proffer. If the Court or counsel were to look at some of the 20 3500 material that had been provided for Special Agent Kerns, 21 including 3525P, as in Peter, 3525T, as in Thomas, 3525U, and 22 most particularly 3525V, as in Victor, which goes through all 23 of the calls, that the government at that point in the trial 24 was planning on introducing into evidence. 25 Each of these documents identifies the tape numbers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7216 4ACMSAT2 1 from which the Lockheed Martin calls were retrieved for use at 2 this trial. And every tape number in each of these documents 3 ends with either the digits 31 or 32. And the three, as the 4 next to last digit in the tape number, demonstrates that the 5 tape was made by system 3 of the Lockheed Martin system. 6 Again, your Honor, going back to these monthly error 7 message reports, your Honor is correct, that the jury, for 8 example, could be instructed to disregard the portions of the 9 documents that relate to the other systems. But, again, we 10 don't know obviously the use that Mr. Tigar is specifically 11 planning to make of these documents. But the earlier pages of 12 the documents contain in the left-hand column descriptions of 13 what I infer to be various error messages generated by the 14 system. And, again, were Mr. Tigar to try to take Mr. Elliott 15 through those particular error messages, what do they mean, any 16 questioning to that level of detail, the government submits is 17 irrelevant for the reason I stated earlier, which is that if 18 there were no recordings there were no recordings, and the 19 very, very technical specific reason why really does not have 20 any relevance. 21 As to some of the other documents that Mr. Tigar 22 addressed, your Honor had already indicated that your Honor 23 believes those documents to be relevant and, therefore, they 24 can be used and need not be redacted. I am not going to seek 25 to reargue. Obviously, the government, when the documents are SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7217 4ACMSAT2 1 used, would object to any questions about parts of the 2 documents that the government believes are irrelevant on the 3 grounds that these questions would also be irrelevant and would 4 also be time wasting and confusing. 5 Just to address a few other documents, I did want to 6 correct one statement that your Honor made at the outset. And 7 this is my fault for not catching this issue sooner. Your 8 Honor stated that there are seven documents as to which the 9 government had not made an objection. And it is true that I 10 had not, before coming here today -- that was neglect on my 11 part as to LS1019. The government does object to that document 12 being admitted because, as I disclosed in some of the 13 correspondence providing these documents, LS1019 is a draft of 14 the other document that is marked as LS1020. And as a draft 15 that was never -- that was not finalized and signed in that 16 form, the government respectfully submits that it should be 17 viewed as hearsay, that it should not be viewed as the FBI's 18 official public record; that, if anything, it is to be viewed 19 as a public record, the final version of the document, which is 20 LS1020, should be viewed as the final document. And that 21 LS1019 is irrelevant and hearsay and, therefore, inadmissible. 22 Also, as to the three documents disclosed by 23 Ms. Stewart in the last day or so, that is, the documents 24 marked as LS1022 through LS1024, the government objects to 25 LS1022 as entirely irrelevant. And the Court, obviously, has SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7218 4ACMSAT2 1 the unredacted version of the document and can see what was 2 redacted out of the document. And the government's redactions 3 were based on lack of relevance to this case and the fact that 4 the government submits that the information is law enforcement 5 sensitive. 6 Were the Court to look at the unredacted version, and 7 see what the document discusses as a whole, it does not relate 8 in any way to the ability or alleged inability of the Ratheyon 9 system to record or archive telephone calls. And because it 10 does not relate to either of those capabilities or functions of 11 the system, or to the operability versus failure of the system 12 as a whole, the government submits that it has no relevance and 13 that questioning about it would be irrelevant and there is no 14 reason for it to be admitted into evidence. 15 And the same is true with respect to the document 16 proffered this morning marked as Defense Exhibit LS1024. 17 Again, the Court has the unredacted version of the document and 18 can look at it and see that this document does not in any way 19 relate to the ability of the Lockheed Martin system to function 20 versus be down, or to record or to archive recorded telephone 21 calls, and, therefore, it has no relevance and should not be 22 used for questioning and should not be admitted into evidence. 23 MR. TIGAR: Very, very briefly, your Honor. If we 24 take a look as an example at Stewart tendered Exhibit 1003, 25 LS1003 and the page that counsel wanted us to look at, 181, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7219 4ACMSAT2 1 Bates 181, that does have a date. It is the 10th of November 2 1998. And it is true that the last line on the page says; Re: 3 IPL due to tape. There are in these documents a number of 4 acronyms, and I would ask Mr. Elliott about them. If he 5 doesn't know, he doesn't know. I suggest that the presence of 6 those acronyms doesn't mislead the jury. 7 If, however, our right to have these in evidence is to 8 be determined by the presence of acronyms, we move that the 9 government produce a list of what the acronyms mean. Because 10 they are in exclusive possession of the evidence. There is no 11 way that I can go over to the FBI headquarters and ask for an 12 acronym list. That's their problem, it seems to us. I can't 13 take a 30(b)(6) deposition. 14 With respect to the system 3, it is true that Agent 15 Kerns' Jencks article has information that might lead a person 16 who knew to say that it is system 3 on which the calls in 17 evidence in this case were recorded. Agent Kerns was not 18 qualified as an expert and didn't join the team over there 19 until 2002, by which time the Lockheed Martin system had gone. 20 And so we are well short, particularly in light of the 21 redundancy information, that a finding of system 3 is the only 22 one. 23 With respect to these last exhibits, 1022, 23, and 24, 24 those are all documents that are approved by Mr. Elliott. And 25 the significance of 1022 is that the problematic fields here SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7220 4ACMSAT2 1 are target, symbol number, and telephoning data. It is the 2 target and telephoning data that was the problem with a lot of 3 this SRI because incoming versus outgoing and number called 4 was -- those were things the system was supposed to get and 5 didn't. So it is in that sense relevant. 6 1024 I've already talked about. I would not intend to 7 put that in evidence without asking Mr. Elliott about it and 8 similarly with 1023. 9 As far as the draft is concerned, your Honor, 1019, on 10 the government's representation that that's a draft, we 11 withdraw 1019. 12 The global issue remains the same; that is to say 13 that, first, it is not true that the FBI can know when the 14 system broke down and didn't record calls. It can know some of 15 it because there would be summaries made on the fly by language 16 specialists. That happens in intelligence investigations, the 17 so-called tech cuts. A tech cut, however, would not be made if 18 the language specialist were too busy or overloaded. And we 19 have talked about the inspector general analysis of the 20 language specialist capability. But more significant, your 21 Honor, tech cuts are not made of calls deemed nonpertinent. 22 And so if what the language specialist didn't think of was 23 pertinent is what was going on, there would not be tech cuts. 24 So we can't use the tech cuts to say when things are and are 25 not being recorded. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7221 4ACMSAT2 1 Finally, it is not like we could go to Mr. Yousry and 2 Mr. Sattar and say, tell us all the calls you made during this 3 time, is anything missing? We could. We can ask them. But 4 these are calls that other people have about which Ms. Stewart 5 doesn't have any personal knowledge. It is the problem of the 6 person who wanders into the surveillance. 7 So that's our -- there is our problem, your Honor. We 8 resubmit that these items are admissible for these purposes. 9 Did I say something that didn't make any sense? Your Honor is 10 looking at me. I might have. 11 THE COURT: No. 12 MS. BAKER: Your Honor, if I could respond briefly to 13 one of the things that Mr. Tigar said about the document marked 14 as LS1022, which I would just note as marked is missing its 15 third page, which was the page bearing the Bates No. 0123. 16 Again, if your Honor were to look at the unredacted 17 version of the document, your Honor would see that 18 notwithstanding the document's references to telephony data, 19 target and symbol number are FBI identifiers that the FBI 20 assigns for its internal reference, so those have no relevance 21 to anything. 22 As to telephony data, the unredacted version of the 23 document makes clear that what's being discussed in this 24 document has nothing to do with the system's ability or 25 inability or success or lack of success in capturing that data. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7222 4ACMSAT2 1 That's not what this document is about. So, again, it does not 2 in any way relate to recording or archiving and is, therefore, 3 irrelevant. 4 MR. TIGAR: Your Honor, we would like -- if indeed 123 5 is a part of that exhibit, then we will -- we would attach it 6 to make sure the exhibit is complete. 7 Target and symbol number, at least target, is in every 8 SRI, your Honor. It is one of the things that the system is 9 supposed to capture. 10 MS. BAKER: Your Honor, symbol number, I believe, is 11 in all the SRIs as well, but that doesn't change the fact that 12 those are identifying references assigned by FBI. It is not 13 external data recorded or captured by the system. It is like 14 the FBI assigning a case number to a particular investigation 15 and putting that case number on everything. That has nothing 16 to do with the ability of the technology to make accurate 17 recording. 18 Your Honor, I did want to raise a logistical issue. 19 Depending on how Mr. Tigar seeks to make use of these exhibits 20 in cross-examining Mr. Elliott, the government doesn't believe 21 that it is likely that Mr. Elliott will be able to remember, 22 have in mind what the information was that was redacted from 23 the documents, and, obviously, it is the government's intention 24 that any redacted information not be disclosed. But if 25 Mr. Tigar were to ask Mr. Elliott a question as to whether a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7223 4ACMSAT2 1 particular portion of a document that includes a redaction 2 relates to a particular point that Mr. Tigar hopes it relates 3 to, if Mr. Elliott is not able to answer based on the redacted 4 document, I assume that he would say that he can't answer. 5 But it seems to me conceivable that there might -- 6 that a situation could arise where it might be necessary or 7 appropriate for Mr. Elliott to be permitted to refer to the 8 unredacted document. If that's true, the government doesn't 9 want there to be in any way a waiver of the government's claim 10 that the redacted information is irrelevant and law enforcement 11 sensitive and should not be disclosed to the defense. So, for 12 example, if Mr. Elliott were to say, I simply can't answer a 13 question without looking at the unredacted document to 14 understand the context of this particular passage, then it 15 seems to us that the choice is either for the question to 16 remain unanswered, or for Mr. Elliott to be permitted to refer 17 to the unredacted document, but without that constituting in 18 any way a waiver. The government does not wish to have 19 irrelevant and sensitive law enforcement information be made 20 public through any type of scenario like that. 21 THE COURT: My recollection of what Mr. Tigar has said 22 was that he tried to set out what he intended to use the 23 documents for and examine with respect to the documents and 24 said that he did not want to open up or ask about items that 25 were redacted from the document in front of the jury because he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7224 4ACMSAT2 1 thought that that would not be wise, and that was my 2 recollection. 3 MR. TIGAR: Yes, your Honor. We have litigated Davis 4 v. Alaska. We have done all that. The Court has ruled. 5 That's exactly what I said. This is a new issue. This is 6 governed by Federal Rule of Evidence 612. 7 THE COURT: In the argument today with respect to the 8 use of these documents -- 9 MR. TIGAR: If it is in evidence, your Honor, it can 10 be published to the jury in any form. When I asked Mr. Elliott 11 about a document that's his document or that I want him to know 12 something about it, I will show it to him and make him aware of 13 it so that I keep my promise to the Court. 14 THE COURT: The only issue that I was raising was, 15 Ms. Baker was explaining a procedure in which the witness was 16 asked about a redacted item and might have to look at the 17 redaction in order to answer the question. And what I said 18 was, my recollection of the argument today is that you were 19 looking for the admission of these documents and not to 20 question the witness about the redactions and that what you 21 wanted was the admission of the documents for the reasons that 22 you set out and not to question the witness about redacted 23 items. 24 MR. TIGAR: That's correct, your Honor. But 25 Ms. Baker, I understood her to take it a step further. If the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7225 4ACMSAT2 1 witness says, you know, I could answer your question, that 2 being a question to which no objection is made or if made 3 overruled, but in order to do it I need to refresh my 4 recollection by looking at something, the something is a 5 redaction. That's Rule 612. That would not be a situation I 6 created, your Honor. It would be the witness creating it by 7 saying I wish now in court while testifying to refresh my 8 recollection. When a witness does that, Rule 612 says, produce 9 the document. 10 THE COURT: Only if the witness refreshes his 11 recollection. 12 MR. TIGAR: That's correct, your Honor. But at any 13 rate, it is governed by Rule 612 and not by the considerations 14 that led to the admissibility determination in the first place 15 or to a ruling on the propriety of any particular question as 16 to which the witness confesses a failure of recollection. 17 THE COURT: The issue should be academic. Mr. Tigar 18 says that he does not want to examine the witness about 19 redactions in the document. So I assume that the witness will 20 not say, gee, if I looked at the redactions, maybe that would 21 be useful to me. Maybe -- 22 MR. TIGAR: Yes, your Honor. He has been an FBI agent 23 a long time. It would be a first, if he did that, as a 24 practical matter. I'm not making light of this. It is a 25 serious issue, but I really don't think it will arise. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7226 4ACMSAT2 1 THE COURT: But I think the issue arose because 2 Ms. Baker was concerned about what the nature of the 3 examination might be if the documents were in. 4 MS. BAKER: Your Honor, my concern arises from the 5 fact that in disclosing the documents there were portions of 6 the documents that the government submits are irrelevant; 7 again, in that they don't relate to the recording or archiving 8 capability of the systems or whether they would run or not run 9 at all. And we didn't always redact those paragraphs in their 10 entirety. Sometimes we left a portion of the paragraph in 11 there, but redacted out the sensitive phrase that would make 12 clear what other aspect of the system was being discussed. 13 And in many instances I think it is clear from what's 14 left in the document that those paragraphs are irrelevant. And 15 if Mr. Tigar were to ask about them, we would object on 16 relevance grounds to those particular questions or lines of 17 questions. But to look, for example, at the document marked as 18 LS1023, I don't know as I stand here now whether the content of 19 that document is in any way relevant to the ability of the 20 system to accurately record and accurately capture a 21 signal-related information. 22 And Mr. Elliott, from looking at the face of the 23 document as redacted, may well know the answer to that 24 question. But if he doesn't know the answer to that question, 25 then I guess everyone is going to have to live with the answer SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7227 4ACMSAT2 1 that he just doesn't know. Because we don't wish to waive the 2 law enforcement privilege or any irrelevance objection by doing 3 something that would require the marking or disclosure of the 4 unredacted document. 5 THE COURT: The representation is also that 1024 and 6 1023 were not even -- I want to go over the additional 7 documents. The representation was that 1024 and 1023 would not 8 even be offered without asking Mr. Elliott about them. 9 MR. TIGAR: That's correct, your Honor, and laying a 10 foundation. 11 THE COURT: The relevance of these particular 12 documents is not great for all of the reasons that I have 13 previously explained. They do little to undermine the 14 authenticity, accuracy, reliability of the systems to be able 15 to accurately record the conversations, the recordings in 16 evidence. 17 At the same time, the proffer with respect to the use 18 of the documents is a very limited one with respect to specific 19 issues about the alleged failures of the system at various 20 times to be able to record or archive, and the possibility, 21 confusion, or unfair prejudice is not great. The jury has the 22 recordings. They have listened. They have read. They have 23 contacts. They have all of the telephone records. 24 And the evidence as to various issues with the system 25 is not so confusing or prejudicial that it will confuse the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7228 4ACMSAT2 1 jury. So that on the balancing analysis, given the limited 2 documents, I can't find that they are inadmissible. I have 3 already indicated my preliminary views that the documents as 4 redacted were admissible with the exception of the monthly 5 status reports and the monthly error reports. As to those, 6 while the showing is not great, the specific items that have 7 been identified are sufficient at this point for the 8 admissibility without being outweighed by confusion or unfair 9 prejudice. 10 I will look at and I want to consider the additional 11 documents which have been proffered which are, I believe, 1022, 12 1023, and 1024. 13 (Continued on next page) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7229 4acesat3 1 THE COURT: As to those, 1020 -- I'll look. And, of 2 course, if the examination of Mr. Elliott goes beyond what is 3 relevant, the government can make objections with respect to 4 specific areas of inquiry. I'll take it up at the time. 5 All right. 6 MR. TIGAR: May we take a short break, your Honor, 7 before moving on to the next issue. 8 THE COURT: Yes. 9 (Recess) 10 MR. TIGAR: May I ask government counsel if we're good 11 to go here? 12 MS. BAKER: Yes, we're happy to proceed. We just ask 13 permission for this member of our staff to be here to try to 14 figure out what the problem is. 15 THE COURT: Sure. OK. 16 MR. TIGAR: Thank you. 17 Your Honor, the next exhibit -- the next issue your 18 Honor had identified was the Stewart exhibits. And I sent the 19 Court a letter, very hastily drafted, but may I take just a 20 very few minutes and talk about the theory of the defense to 21 provide a context for our admissibility argument here. 22 THE COURT: All right. 23 MR. TIGAR: The indictment covers the period from 1990 24 or the early '90s to 2002; that is, we encounter some of the 25 speeches and sermons of Sheikh Omar Abdel Rahman. And the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7230 4acesat3 1 government in this case played very few telephone calls with 2 Ms. Stewart on them. They relied, of course, on 801(d)(2)(E) 3 and calls of others. They played these sermons and speeches 4 that she heard translations of at the trial for her intent, 5 knowledge and state of mind. 6 There are dozens of newspaper articles read to the 7 jury for intent, knowledge and state of mind. There were phone 8 calls in a language she doesn't speak. And an extraordinary, 9 in my experience, but certainly a large proportion of the trial 10 was taken up with the reading of the newspaper articles and the 11 reading of the sermons and so on. Not criticizing it, but 12 that's what happened. 13 So now the issue is: Did she do the acts charged? 14 But the more important issue in terms of our case is: Did the 15 government -- can the government prove these specific intent 16 crimes, the mental element, beyond a reasonable doubt? And to 17 that end, her intent, knowledge and state of mind is center 18 stage. 19 Because our theory of the case, your Honor, is that as 20 the first indictment alleged, the lawyers, or at least this 21 lawyer, was doing it legally, an allegation that dropped out of 22 the second indictment; that at all times material to this case, 23 Ms. Stewart was acting as a lawyer, making decisions as a 24 lawyer; drawing upon her experience and training and education 25 to decide what was and was not right to do, and, therefore, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7231 4acesat3 1 what was and was not lawful to do; and that she never had the 2 specific intent to violate a legal duty that she believed she 3 had. 4 Now, when I speak of a lawyer's intent, knowledge and 5 state of mind, I think we speak of it differently perhaps than 6 the intent, knowledge and state of mind of almost any other 7 practitioner of a profession that we could name. And I'm not 8 going to try to say to the Court what is her intent, knowledge 9 and state of mind that we're proffering, because she'll do 10 that. She's going to get on the witness stand. And I, 11 therefore, I'd like to talk about how do lawyers get an intent 12 and knowledge and state of mind? 13 We are the only profession in the world, at least in 14 our cultural system, that could seriously begin a discussion as 15 to what we ought to do by saying, in the year 1215 at 16 Runnymede; quite remarkable, because we are required by our 17 oath to practice our profession in the ever-lengthening shadow 18 of the past. 19 And to some that's what it means to be an originalist, 20 a concept that isn't new with members of the present Court. It 21 goes back a long ways. So how do lawyers behave? And, you 22 know, there's a story about when James McNeill Whistler sued 23 John Ruskin and was asked, how much do you get for a painting? 24 He said, 200 guineas. And the question was, how long does it 25 take you to do it? He said, two days. He said, you asked 200 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7232 4acesat3 1 guineas for two days' work? Whistler said, no, I ask it for 2 the experience of a lifetime. 3 How do lawyers decide, a lawyer with nearly 20 years 4 in practice? First, she uses her relevant life experience. 5 And if that life experience included extensive work with people 6 in other cultures, and therefore she thinks about, how do I 7 represent a client who culturally, socially, in all ways is 8 very different from the people that are to judge him or her? 9 They think about their professional experiences. 10 I mean, if I think about how should I behave in a 11 high-profile trial, if I'm making that decision, I would look 12 back and say, you know, the last time I was in one, or if I did 13 one, my professional peers said we either did or didn't do a 14 good job. My opponent said, gee, you fought hard but fair. A 15 judge might have said to me, well, you know, I liked or didn't 16 like what you did. We think about those things; not for the 17 truth of what's asserted to us, but as part of our formation on 18 how we make decisions. 19 We think about precedent, cases we might have read. 20 We think about resources we go to, reports and studies and so 21 on, not just newspaper articles but country reports, to form 22 our impression. Because one of the wonderful things about 23 being a trial lawyer is that you can be a banker on Monday, a 24 nuclear scientist on Tuesday and a student of black 25 revolutionaries on Wednesday all in the same practice of law, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7233 4acesat3 1 because that's what we do. 2 So, the representation of Abdel Rahman was a very 3 special challenge for Ms. Stewart. She'd worked in cross 4 cultural situations. She worked as a teacher in Harlem, in the 5 Lower East Side. She worked with African-American radicals and 6 the Hispanic community. And thus she faced this question of, 7 how do I interpret somebody's cultural experience? 8 Her opening statement to the jury in Abdel Rahman's 9 trial is already in evidence and we will publish it. And it 10 shows some of the approach that she took, but based on those 11 many, many years of experience. She had to deal with the fact 12 that this is a high-profile trial. And, again, I can't speak 13 for her -- 14 THE COURT: By the way, the opening statements went in 15 by -- there was no objection to the opening statements, am I 16 correct? 17 MR. TIGAR: I think that's right. 18 THE COURT: And with respect to the summations, when 19 the issue came up, I said no. 20 MR. TIGAR: That's correct, your Honor. 21 THE COURT: But the openings are in because there were 22 no objections by anybody. 23 MR. TIGAR: That's right, your Honor. 24 THE COURT: OK. I just wanted to make sure. 25 MR. TIGAR: And I can say why I didn't object: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7234 4acesat3 1 Because a whole lot was coming in, a lot. And these sermons 2 were coming in. And Mr. Fitzgerald is going to testify, and 3 sure enough he was going to get in his views about the Sheikh 4 and his letters and so on. So the jury had all of that. 5 We had the very worst that the government could do to 6 us about what prosecutors thought about Ms. Stewart's client. 7 So she wasn't going to likely be harmed by some jury opening 8 statement coming in, particularly in light of the Court's 9 instruction to the jury at transcript page -- well, I forget. 10 It was the one about not for the truth and so on. So that's 11 why we did that, yes, your Honor. 12 But it was a high-profile case in which the media 13 itself looked like it might be hostile. And, again, 14 Ms. Stewart can talk about how she looked at those issues. 15 Certainly I've been privileged or whatever to be involved in 16 some of those cases and had to think about those issues. 17 And really what we know about is that the very, very 18 best people in our profession are students of history. They're 19 not carnival barkers or show people. And the terrible problem 20 is that the world thinks of them as carnival barkers and show 21 people in so many ways. And so, therefore, some of the 22 exhibits we have are -- and some of the testimony will be about 23 exhibiting to the jury how a lawyer makes decisions in 24 performing this sometimes unpopular task on behalf of people 25 who are certainly very unpopular, protected by an amendment to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7235 4acesat3 1 the Constitution that is designed to protect 2 countermajoritarian issues. 3 So a concrete example -- this is the end of my 4 introduction to this. Suppose I were charged. Suppose it were 5 said that I had violated some direction, not a specific one, 6 but a general direction not to have press conferences, not to 7 report things to the media. How would I as a lawyer defend 8 myself beyond making arguments about the substance of the 9 regulation? How would I rebut the idea that I specifically 10 intended to violate a known legal duty as a lawyer? 11 Of course I would start with the Gentile case, Justice 12 Kennedy's opinion about the role of lawyers. I would reflect 13 that when John Adams in 1808 wrote then, and there was a child, 14 independence, born, he was referring to a lawyer's press 15 conference. True. 1761 in the Boston common. He and James 16 Otis and he wrote about it, and the masters spied, people, 17 things leaked from his office. 18 I would reflect that in trials which I had been 19 involved, I've sometimes been criticized, but often peers and 20 people have said and written letters, gee, you know, that was 21 the way to do that. You know, and I've spoken about it. So I 22 have that, have all those years, and I think of what my mentors 23 said to me. 24 I'd even go back and think about what old Darrow 25 thought about it; how in his very first encounter with a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7236 4acesat3 1 high-profile case, he so misjudged public sentiment that 2 everafter in his career, he kept looking back to it. And that 3 was when he tried to convince Governor Altgeld that there 4 really wouldn't be much harm in pardoning the surviving 5 A-market defendants. 6 I would think about, you know, my own life experiences 7 in all of those ways. And as I say, that's different. It's 8 just different how we do things. And if we are to tell this 9 story of this lawyer and her path, we think that these exhibits 10 are important and relevant. I don't want to say highly 11 relevant or at the center. What's at the center is our theory 12 of the case. What these exhibits do is illuminate. 13 And so let me go through, if I can, the notebook and 14 the ones they've objected to. 15 First the Hawk memo. What I've argued about in the 16 letter, your Honor, the hours of jury time have been taken with 17 a -- with evidence about Sheikh Omar Abdel Rahman's medical 18 condition. It has been laid sometimes at the defendant's door, 19 that they made a big deal about the medical condition and that 20 they should not have done so. And yet the very issues that 21 they were concerned about are reflected in this memorandum, 22 which we say is not objected to on hearsay grounds. We 23 thought, and I think Mr. Clark thought, and I know Ms. Stewart 24 thought -- 25 THE COURT: It is objected to on hearsay grounds. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7237 4acesat3 1 MR. TIGAR: It is objected to, your Honor -- I'm 2 sorry. 3 THE COURT: It's objected to on the grounds of 4 relevance and hearsay. 5 MR. TIGAR: I'm sorry, your Honor. I stand corrected. 6 I am mistaken. I was thinking of another exhibit. 7 It is admissible under 803(8). If it contains 8 internal hearsay, there could be an instruction about that. 9 Certainly the author did not intend to adopt the hearsay, and 10 there's no risk of jury conversion that Kathleen Hawk Sawyer 11 thought that Ramsey Clark's take on the situation was right. 12 In addition to that, your Honor, we claim 13 admissibility under 807. Now, I go back to, since I missed a 14 step here -- 15 THE COURT: Which portion of 803(8)? 16 MR. TIGAR: It is, your Honor, under 803(8). And I 17 can't remember if they number them B or 3 or C or -- 18 THE COURT: A, B and C. 19 MR. TIGAR: It would be C, your Honor, and B; to a 20 lesser extent A, but certainly B and C, your Honor. And to the 21 extent not it really is 807, we say. 22 There simply is no basis upon which to doubt the 23 accuracy of this declarant's statements, none. And these 24 statements corroborate the defense concern with achieving good 25 healthcare and good conditions. And the defense thought that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7238 4acesat3 1 the potential dangers identified in this document, which is not 2 altogether favorable to the defense, how those potential 3 dangers could be dealt with by what the defendants saw as a 4 transfer to Egypt or to some other place. 5 LS40 we've discussed in our letter. 6 LS44 is the bar -- 7 THE COURT: Hold on. The government does not object 8 to LS40 for knowledge, intent and state of mind, to the extent 9 that Ms. Stewart saw it. 10 MR. TIGAR: She never saw it. We've had 11 Mr. Salaheddin. A portion of this came in as past recollection 12 recorded with respect to Mr. Salaheddin and was read to the 13 jury. We're offering it for its effect on those who read it, 14 i.e. the audience of lawyers, on the basis, as we say in our 15 letter, that the Sheikh's words could not reasonably have been 16 seen as a call of violence. 17 THE COURT: OK. 18 MR. TIGAR: LS44 contains Sheikh Abdel Rahman's name 19 and Mr. Davis' name. It is the kind of thing that lawyers put 20 on their wall or keep in a scrap book when it happens, because 21 what it says is, in the world of my peers in this very 22 difficult end of the profession, the kinds of judgments I make 23 are probably OK. 24 And that's -- we're going to have a lot of discussion, 25 I guess the government is, about this mention of the Larry SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7239 4acesat3 1 Davis case, because the government doesn't want us to talk too 2 much about the Larry Davis case. 3 The Larry Davis case was a real education for 4 Ms. Stewart, and her experiences there were crucial to her 5 formation as a lawyer and to her work in representing Omar 6 Abdel Rahman. First she had the very difficult job, as I 7 understand it, of communicating what someone from a different 8 culture, different set of attitudes dealing with someone whose 9 whole approach to the world was not likely to commend itself to 10 a jury. 11 Second, she was associated in that case with another 12 lawyer, William Kunstler. And as anybody knows that tried a 13 case with Wild Bill, that was how you learned not to deal with 14 the media. And indeed, her approach to the media and the way 15 she thought she would deal with the public issues in the case 16 was based on that experience. 17 Also, the Larry Davis case, of course, dealt with 18 violence. This was someone who committed violence, and so 19 Ms. Stewart had to understand, look, I don't approve as a 20 person of -- you know, I'm not with you on your conduct. I 21 don't share a lot of where you came from, but you acted in a 22 certain way at a certain time. And under our law you're 23 entitled to be acquitted because that's what the law says. 24 And that was a highly emotional atmosphere. And it 25 really was a formative experience for her in forming her SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7240 4acesat3 1 intent. So the fact that as a result of that and as a result 2 of being retained in this case she wins the regard of the world 3 is important to her. 4 LS402 is that same business. She kept this, your 5 Honor. She had it. It's offered for its effect on her because 6 this is one that she did keep. 7 We've withdrawn 49. Pictures. 8 101, your Honor, is a picture of her swearing-in. Can 9 I say that it matters terribly to us? But I'll now stop and 10 talk a minute about pictures. 11 When somebody says, I was sworn into the bar 20 years 12 ago, or Pat Levasseur works with me, remember Agent Stumf 13 talked about Pat Levasseur, the paralegal, or I work in an 14 office with Ms. Schroff, or I'm at 351 Broadway, they say the 15 words. As there are 16 people in the jury box and there are 16 16 different mental pictures of what Lynne Stewart looks like 20 17 years ago, what Pat Levasseur looks like, what 351 Broadway 18 looks like, it does no harm to show the jury a picture so that 19 they don't have to guess. Indeed, I had thought that that's 20 fairly noncontroversial. 21 One of the things that we do in teaching trial 22 advocacy is to ask the students to please imagine a 23 pediatrician. Then we say, how many of you have a male, how 24 many of you have a female pediatrician? Because you illustrate 25 how very different people's mental pictures are when we just SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7241 4acesat3 1 use words, or if we don't have a picture and too few words. So 2 that's the picture discussion. 3 And LS102, as I say, is a picture of the people in 4 that law office at that time. And there is Pat Levasseur. 5 There is Ralph Pointer, Ms. Stewart's husband, and Mr. Pointer 6 is present. The people keep referring to him on these tapes so 7 now we're going to see what he looks like. There's Ms. Schroff 8 and so on, and Geoffrey Stewart is there. These are the people 9 she worked with. 10 46 is a picture of the CART agents taking the things 11 out. And 103 and 104 are pictures of the law office. 12 Now, 201 is interesting because that comes back to 13 what your Honor said about the trial transcript or the opening 14 statements. The government says, well, if you let that in, 15 I'll have to let in everything. You know, they made a 106 16 objection. 17 We have taken the position from the beginning that if 18 any of the Rahman trial material was to come in -- and at first 19 we said none of it should -- that that offer should be very 20 limited. But what has the government done? They put on the 21 prosecutor who left no doubt as to what he thought. They read 22 sermon after sermon after speech after speech to the jury about 23 advocacy of violence. And they put in the opening statements. 24 Well, Ms. Stewart simply wants to complete the 25 picture, because she didn't see it. As her opening statement SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7242 4acesat3 1 already in evidence shows, as a case about sermons, she saw it 2 as a case about Salem's credibility. 3 She didn't succeed. The jury didn't accept that. But 4 if there ever was a chance for victory in that case, that's the 5 way she had to look at it. And I have shown that the 6 government has -- they put in Mr. Khuzami, that's in evidence 7 with everybody's consent, talking about Mr. Salem, talking 8 about the reasons you shouldn't believe him, why he was 9 corroborated. 10 An excerpt from the cross-examination of Mr. Salem is 11 important, because it also illustrates a thing, what lawyers 12 do. What lawyers do is to show that some of the people the 13 government brings to court are liars. Mr. Salem was a liar. 14 He was a paid liar. Now, in the end the jury decided to credit 15 his version of events. That's what juries do; they have that 16 right to do that. But the job of the lawyer in doing 17 cross-examination, the job of the lawyer to test, to not 18 believe what the government presents, that's critical to state 19 of mind. 20 And it's interesting, the dynamic that we have in this 21 courtroom. I don't accept what the government says without 22 proof, your Honor. And counsel may disagree about the facts, 23 and we recognize it that some of those facts were bound by your 24 Honor's view, but some of them the jury gets to decide. It's 25 about belief, and we think this limited section doesn't create SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7243 4acesat3 1 any undue difficulties. 2 Now, LS202, the Doherty opinion. You know, and I'm 3 going to also talk about the books in this context, too, that 4 is, the arrow book and the other materials like that. 5 When I think about clients like the Sheikh, if I were 6 going to represent Sheikh Omar Abdel Rahman, I might very well 7 draw a parallel to the struggle of the Irish. In fact, I think 8 I would, and, in fact, Ms. Stewart does in one of the tapes. 9 The parallels are striking. In the home country of the Irish, 10 they torture people, the European Court of Human Rights found 11 three times. 12 And so forth and so on. We don't have to go into 13 details, but it's important to her, and this is relevant to her 14 state of mind. How shall I approach this? She not being -- 15 having any experience with Muslim people, but plenty being an 16 Irish girl from Queens, with that other stuff. 17 She had this in her office in her desk drawer. The 18 government objects to these letters about the homicide panel. 19 These letters are not offered for the truth of what's asserted, 20 but I have some letters in my office that I keep about cases 21 that I've done. And I enjoyed looking at those. They're part 22 of my state of mind. I want to have the regard of judges 23 before whom I appeared. 24 And when I get it, I think, well, as a professional, 25 not having to do with any other trait that I might have, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7244 4acesat3 1 just do I do my job as a professional, I think those are 2 important to my state of mind. 3 Now, I want to find -- and because I've talked about 4 this at great length, I'm going to listen to the government and 5 then respond. Just one more exhibit. 6 May I have just a moment, your Honor. 7 THE COURT: Sure. 8 MR. TIGAR: 305, 305. Now, this is very interesting, 9 your Honor. 305, the back part of it is the first part. It's 10 a leaflet from the International Law Weekend of the American 11 branch of the International Law Association, and then some 12 material relating to an invitation to Ms. Stewart to speak 13 there. 14 As she, on a going-forward basis from June 1996, asked 15 herself, did I do a professional job? Did I as a lawyer in 16 this, what could be the biggest case of my career, did I do the 17 job that would win the respect of the community in which I 18 live? And, again, I use that word, you know. That's because 19 it's supposed to be what we're about, at least the end of the 20 profession that tries cases. And I've got a foot in, you know, 21 as a schoolteacher camp and the case-trying camp. But in the 22 camp that tries cases, we're supposed to be colleagues since 23 the 14th century. 24 And so when a colleague writes a letter after a tough 25 case, I'll keep that, because it really does go to my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7245 4acesat3 1 knowledge, intent and state of mind. And the most important 2 professional relationships that I have, I think -- and I speak 3 for myself because Ms. Stewart will speak for herself -- are 4 with the lawyers who once upon a time I faced as adversaries 5 and have now come to deal with as colleagues. And I could list 6 them but it's not important. I think that everybody here with 7 a few gray hairs in the practice of law knows about that. 8 So that's what it is, your Honor. This is a defense 9 about intent, knowledge and state of mind for a lawyer who says 10 and has said and is going to say, I did this in the tradition 11 of my profession. I made these decisions in this 12 ever-lengthening shadow of history. I did not ever 13 intentionally violate a legal duty that I believed I had. And 14 all these things, every single one, she says, I will be able to 15 say formed, helped form, that intent. And it was a part of the 16 knowledge that I had when I acted in this way that I say I 17 didn't violate the law. 18 THE COURT: All right. 19 MR. DEMBER: Your Honor, many of the exhibits 20 Mr. Tigar just referred to, various letters, various other 21 documents, he argues they're relevant because they demonstrate 22 Ms. Stewart's state of mind, knowledge and intent. And the 23 issue here is not what Ms. Stewart may have been thinking at 24 various times during the course of the case and what her state 25 of mind at various times was. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7246 4acesat3 1 If her state of mind was, I'm a good lawyer because 2 other lawyers and judges have said I'm a good lawyer, how is 3 that state of mind relevant to this case? Well, Mr. Tigar says 4 it shows that she demonstrated or she had -- it confirmed in 5 her that she used good judgment. Well, actually, the letters 6 don't talk about judgment, I don't think. And none of these 7 letters talk about her good judgment or anything like that. 8 The issue is when we talk about state of mind, 9 knowledge or intent, how does that relate to the elements of 10 the crimes with which she is charged? And the fact that others 11 have said she's a good lawyer, does that mean that that 12 translates into some relevant evidence in her defending against 13 the charges that she's faced with? Does that go to the 14 required intent elements of those crimes? 15 Mr. Tigar has focussed us on the fact that the crucial 16 issue here for his client is her state of mind and her intent, 17 essentially the intent elements of these various crimes. How 18 any of those matters, any of those documents -- while certainly 19 she may think of herself as a good lawyer, she may think of 20 herself as a lawyer with good judgment, the fact that she 21 thinks that way or that others have said that really has 22 absolutely no relevance to this case. 23 Let me start just with that, your Honor. Let me go 24 through the exhibits that Mr. Tigar has identified. 25 First, let me make reference to the fact that -- he SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7247 4acesat3 1 started with in his argument stating that he intended, I 2 assume, perhaps with Ms. Stewart on the witness stand, to read 3 into evidence an exhibit that was offered by the government in 4 its case, meaning the opening statement of Ms. Stewart. It was 5 offered into evidence in conjunction with the opening -- the 6 government's opening statement in Abdel Rahman's trial. 7 If your Honor recalls, both those exhibits were 8 introduced for the limited purpose of demonstrating 9 Mr. Sattar's state of mind. They are exhibits that were seized 10 during the search of Mr. Sattar's home and they were only 11 offered for that limited purpose. 12 And what Mr. Tigar is suggesting he will do is use it 13 for a different purpose. For the purpose of offering it in 14 Ms. Stewart's defense, it is inadmissible hearsay and should be 15 excluded. It's just a prior consistent statement, according to 16 what Mr. Tigar suggests is her state of mind as it relates to 17 this case, to the charges she confronts. 18 I would note for the Court that none of those opening 19 statements were read to the jury. And I would suggest to the 20 Court -- and the government certainly would be willing under 21 these circumstances, because we think these matters, if gone 22 into too deeply, will really be more con -- cause more 23 confusion to the jury than benefit to them in this case, that 24 the government would even be willing to withdraw those 25 exhibits, if that were the case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7248 4acesat3 1 If your Honor believes that her opening statement 2 should be -- she should be allowed to use it for a different 3 purpose than which it was introduced into evidence, then 4 certainly -- and doesn't agree with the government's suggestion 5 that under those circumstances, if it were, that simply the 6 exhibits be withdrawn, since the jury has never heard them; and 7 I dare say I'm sure they have absolutely no recollection of 8 their numbers, and if they were removed from this case, it 9 would have no impact on this jury whatsoever. 10 But I think under a 403 analysis, your Honor, if they 11 were to be introduced for a different -- if they were offered 12 now by Ms. Stewart for a different purpose than they were 13 originally introduced for, that would cause a 403 problem and 14 perhaps withdrawing those exhibits would be a remedy 15 appropriate under these circumstances. 16 If it's not, your Honor, and certainly under Rule 106 17 if Ms. Stewart intended to read her opening statement, that 18 opening statement which is in evidence to this jury, we will 19 move under Rule 106 that she be required as well to read the 20 government's opening statement as well. And then what we're 21 going to end up having, your Honor, potentially is a minitrial 22 within this trial, sort of a retrial of Mr. Abdel Rahman, which 23 I don't think necessarily would benefit either party in this 24 case. 25 With respect to Stewart's Exhibit LS1, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7249 4acesat3 1 which is the Kathleen Hawk memo, as we've argued, your Honor -- 2 I've indicated, your Honor, it is inadmissible hearsay. It 3 clearly does not, if one reads 803(8), your Honor, it does not 4 fall within the requirements of 803(8). I won't belabor the 5 record by reading the requirements of that particular rule, but 6 the contents of this particular exhibit clearly do not fall 7 within the requirements of 803(8). 8 THE COURT: Why not? 9 MR. DEMBER: Your Honor, because, to begin with -- 10 well, I mean, 803(8), your Honor -- I would suggest, your 11 Honor, that if this exhibit fell within 803(8), frankly any 12 document prepared by a government official would fall under 13 803(8). It's -- obviously 803(8) permits -- it permits in 14 evidence records, reports, statements or data compilation, any 15 form of public offices or agencies setting forth, one, the 16 activities of the office or the agency. 17 Which this doesn't, your Honor. 18 THE COURT: Doesn't rely on A and B. 19 MR. DEMBER: He said A, B or C, your Honor. 20 THE COURT: Said B, C and to a lesser extent, A. 21 MR. DEMBER: I'll go to B next. He did say A matters. 22 Observed to duties imposed by law. Those aren't. That's not 23 what this memo's about. They're not observations by Ms. Hawk. 24 To a large extent they're recitations of statements made by 25 Abdel Rahman and Mr. Clark, as well as her own personal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7250 4acesat3 1 concerns about Abdel Rahman's situation. 2 And C is in civil actions and proceedings against the 3 government in criminal cases. 4 THE COURT: And. 5 MR. DEMBER: I'm sorry, and. And against the 6 government in criminal cases. Factual findings resulting from 7 an investigation made pursuant to authority granted by law. 8 Well, there is -- there are no factual findings in 9 here, your Honor. This is a memo proposing that a meeting take 10 place so they can make factual findings. So it doesn't fall 11 under C as well, your Honor. 12 Your Honor, with respect to Government Exhibit LS40, 13 which is a Reuters report by Mr. Salaheddin that Mr. Tigar 14 concedes Ms. Stewart has never seen, it's pure speculation to 15 offer this as evidence of its effect on others. We don't know 16 what, if any, effect it would have on others. Whenever we've 17 offered evidence in this case and it's been admitted for its 18 effect on someone, it's been on, I believe, the defendants in 19 the case or relevant parties in the case, coconspirators or 20 defendants. At this point it's purely hearsay and shouldn't 21 come in. 22 With respect to LS44, your Honor, this is -- it's hard 23 to read what is written. LS44 is the article from either the 24 Post -- The Daily News back in '95, talking about some very 25 good defense attorneys in the city here. There's also another SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7251 4acesat3 1 article that Ms. Stewart offers, which is essentially a profile 2 of her. 3 Again, it's the same thing as I mentioned in the 4 beginning of my argument. The fact that somebody identified 5 her as being a good defense attorney worth writing about in an 6 article with nine other attorneys, the fact that another writer 7 I believe in NewsDay wrote an article about her profiling her, 8 while it may certainly make her feel good, may make her feel 9 good about herself, maybe even make her feel good about her 10 judgment and her ability in cases, these are hearsay 11 statements, your Honor, offered, I would suggest, more so to 12 inform this jury that others think Ms. Stewart's a very good 13 lawyer and they should consider that when they talk about that. 14 And even if there is some -- if the Court gives 15 credence to some of the arguments made by Mr. Tigar with 16 respect to those two newspaper articles, they certainly are 17 inadmissible because they certainly would lend the jury to 18 perhaps be thinking in terms of, oh, well, she's a highly 19 regarded attorney. And that fact is not relevant to this. So 20 under 403 at the very least it should be inadmissible. 21 Again, there is a brief reference in one of these 22 articles to Mr. Davis. And Mr. Tigar says it's relevant 23 because Ms. Stewart learned how to deal with the media in that 24 case. I don't know how that can possibly be relevant to this 25 case, your Honor. There were no restrictions I'm aware of on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7252 4acesat3 1 her communicating with the media in the Davis case or any of 2 her other cases. There clearly were restrictions placed on her 3 and her client in our case communicating with the media. It's 4 a completely different case, completely different scenario how 5 this is important in forming her intent in this particular 6 case, these articles. We don't see it, your Honor. 7 Your Honor, let me address what she's marked as 8 Exhibit LS201, which is a brief -- a portion, not even her 9 entire cross-examination, of Emad Salem, who testified in Abdel 10 Rahman's trial. This is not even her full cross-examination. 11 And it's somewhat repetitive, I think, of the government's -- 12 beginning of their direct examination. 13 But the government's direct examination, your Honor, 14 combined with the rest of Ms. Stewart's cross-examination of 15 Mr. Salem, is hundreds and hundreds of pages long. Mr. Salem 16 testified in that case for I believe about a month and a half, 17 including not only on the government's direct case, but he was 18 recalled by the defense. I don't recall if Ms. Stewart was one 19 of the attorneys who recalled him to the stand, but he was 20 recalled in the defense case and testified I believe for at 21 least a week in that case. His testimony is I believe over 22 1,000 pages long, if not more, maybe even 1,200, if my memory 23 serves me correct. 24 To take a snippet out of the examination of Mr. Salem 25 and offer it to the jury is just to try to persuade them that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7253 4acesat3 1 Mr. Abdel Rahman was improperly convicted in that case. That's 2 what it really is suggesting to this jury, your Honor, if she's 3 allowed to introduce this and read it to the jury. 4 And when I say in my letter that if this is being 5 offered -- clearly it's hearsay to begin with, but if it's 6 being offered to establish or prove Ms. Stewart's state of 7 mind, the first question is, what relevance is her state of 8 mind of Abdel Rahman's guilt in that trial? Whether she 9 believes he is guilty in that trial or not guilty in that trial 10 is no defense to any of the charges that she faces in this 11 case. 12 So even if she truly believes he was not guilty in 13 that case, and I assume she probably does, that belief, that 14 knowledge, that part of her state of mind has no relevance 15 whatsoever. It is not a defense. 16 THE COURT: Well, that's -- that goes -- the statement 17 is too broad because one of the reasons for reading speeches 18 and sermons of Abdel Rahman was for the knowledge, intent and 19 state of mind of those who heard the speeches and sermons for 20 their belief that Abdel Rahman was, in fact, a dangerous 21 person. 22 MR. DEMBER: And coconspirator in this case. 23 THE COURT: What? 24 MR. DEMBER: And as a coconspirator in this case. 25 THE COURT: And also for the knowledge, intent and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7254 4acesat3 1 state of mind of Abdel Rahman, a coconspirator in this case, 2 right. 3 But the dangerousness of Abdel Rahman and the 4 defendant's knowledge of the dangerousness of Abdel Rahman 5 being provided as a resource to the Count 2 conspiracy is one 6 of the issues in the case. And the individual defendant's 7 knowledge, belief, intent with respect to that is one of the 8 issues in the case. 9 So, in fact, as the case went on, it was pointed out 10 that, you know, some speeches and sermons were directly 11 relevant to Ms. Stewart's knowledge, intent and state of mind 12 because she was there and that point was made; and that other 13 speeches of Abdel Rahman have to be admitted for Mr. Sattar as 14 to state of mind because it was not necessarily clear that he 15 heard all of the speeches of Abdel Rahman that were submitted 16 in the course of the trial. 17 Now, it is conceivable that the defendant could argue, 18 I didn't think that Abdel Rahman was dangerous. I didn't think 19 that I was providing a dangerous person as a resource to the 20 Count 2 conspiracy. I thought that Abdel Rahman was simply a 21 person who was not fairly accused. And so what I would like to 22 do is to, risky as this may be, I would like to present some 23 evidence of what influenced me in my thinking, and what 24 influenced me in my thinking was this snippet from the 25 cross-examination of Salem. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7255 4acesat3 1 Now, that's the way in which I took the proffer of the 2 cross-examination of Salem. Viewed in that way, then of 3 course, some other evidence from the trial would go in as to 4 some of the things that Salem said as to which he was -- his 5 credibility was questioned in the cross of Salem, if I 6 understand the defendant's theory correctly with respect to 7 that aspect of knowledge, intent and state of mind. 8 It doesn't mean that the entire eight-month trial 9 record of Omar Abdel Rahman's trial goes in. Some specific 10 evidence has gone in in this case towards specific purposes, 11 and this is a proffer of another piece, to which there would be 12 a fair cross designation under 106 if the defendant wished to 13 proceed with that. But it's -- I mean, I understand why that's 14 being offered, at least I think I understand. The defendant 15 can always correct me if I'm wrong. 16 But I also can spell out the steps as to the -- where 17 that would fit in to the knowledge, intent and state of mind in 18 this case; not some generalized knowledge, intent, state of 19 mind as to why someone -- not a generalized knowledge, intent, 20 state of mind unrelated to charges in the case, and a specific 21 knowledge, intent and state of mind relating to the charges in 22 the case. This is an issue that's gone on. 23 Yes. 24 MR. DEMBER: And my point, your Honor, in my letter, 25 not only have I made reference to all of the other -- the fact SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7256 4acesat3 1 that there is lengthy testimony given by that particular 2 witness at that trial, but there's other evidence not 3 introduced by the government at this trial that was offered 4 against Mr. Abdel Rahman at his trial. 5 So this jury, if they want to put her state of mind, 6 that state of mind that your Honor just referred to, at issue 7 by offering this, you know, portion of a cross-examination, 8 this jury -- we think we're -- you know, the jury should be 9 entitled to know that, what is all this evidence? If she's -- 10 you know, what is all this other evidence? To determine 11 whether or not Ms. Stewart's state of mind is reasonable or 12 not. 13 Because if they realize -- you know, and much of -- in 14 some of the evidence offered against Abdel Rahman was 15 corroborated -- was to corroborate Mr. Salem. That's why I 16 think we're getting into sort of a minitrial here, if we go 17 this next step, because the jury's -- you know, I think the 18 government is -- should be in a position where it can ask the 19 jury, well, if she's claiming based on this snippet of a 20 cross-examination that perhaps Abdel Rahman wasn't properly 21 convicted, that's her state of mind -- and not a dangerous 22 person, not a dangerous person. Let me put aside the 23 conviction, not a dangerous person. 24 THE COURT: Because the issue is not -- the issue is 25 not whether he was convicted, because I've already instructed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7257 4acesat3 1 the jury on that. The issue is -- there are several issues. I 2 mean, he was alleged to be a coconspirator in the conspiracies 3 charged in this case. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7258 4ACMSAT4 1 THE COURT: He is alleged to be the resource that the 2 defendant knowingly provided and conspired to provide to the 3 Count 2 conspiracy. It is claimed that who Rahman was and 4 whether he was a resource for the Count 2 conspiracy is an 5 issue in the case, and what the defendant's knowledge of that 6 was is an issue in the case. 7 Now, the government has offered a substantial amount 8 of evidence on those questions. The defendant can respond, of 9 course, if she wishes. The defendant has no obligation to do 10 anything. All I'm faced with is the, at the moment, is the 11 offer of this small part of the cross. 12 Now, the result of this and where you see I'm going 13 may result in another conference among the parties in which, as 14 we had on one other exhibit, where the government said, if 15 there is an issue with respect to dangerousness we reserve the 16 right to introduce lots of other evidence with respect to 17 dangerousness. And the advantages versus disadvantages of 18 introducing one document led not to the introduction, if I 19 recall correctly, of that document. 20 So, is this snippet of cross relevant to the issues in 21 the case? It is relevant to knowledge, intent, and state of 22 mind. It is hearsay, but it is being offered for the 23 nonhearsay purpose of the effect on the defendant's knowledge, 24 intent, and state of mind on an issue which is relevant to the 25 case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7259 4ACMSAT4 1 But I am perfectly happy to continue listening on 2 this, but I've read -- I've read it. 3 MR. DEMBER: Your Honor, completely in our letter we 4 have indicated that if it is offered and ruled to be 5 admissible, we will submit to the Court under 106. A guess a 6 lot of other testimony, if it is ruled admissible under Rule 7 106, we will offer and submit to the Court much of Mr. Salam's 8 other testimony to see whether it is -- under 106 it needs 9 presented to this jury at the same time this portion of 10 Ms. Stewart's cross-examination is introduced. I am more than 11 happy to talk to Mr. Tigar about this and discuss it. 12 Hopefully, maybe we can come to an accommodation without having 13 to go that next step. 14 Your Honor, I will quickly go through the other items 15 that Mr. Tigar specifically addressed. LS202 is the request 16 for extradition of Mr. Doherty. This, I think your Honor put 17 it best a moment or two ago when you talked about a generalized 18 state of mind or intent or knowledge. This has absolutely 19 nothing to do with this case. Obviously, it is hearsay. To 20 the extent that it is offered, I guess, to show Ms. Stewart's 21 state of mind, it is a very general, one that really doesn't 22 deal with the issues in this case. Any of the intent elements 23 of any crimes she should be charged with. That's our position. 24 Your Honor, I have addressed, when I first started 25 speaking, Exhibits 301 through 305, which are various letters, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7260 4ACMSAT4 1 most of which are dated 1987, which were submitted to the 2 Appellate Division 18B panel by three federal judges, one, I 3 guess, former federal prosecutor, and Mr. McCarthy. It was a 4 separate letter, 305, by Mr. McCarthy, commenting. Mr. Tigar 5 indicates -- again, this is part of her state of mind, 6 knowledge, and intent. And this seems to be some again, vague, 7 general unspecific state of mind, knowledge, and intent that he 8 is referring to. 9 He is not, and I don't believe he can, connect any of 10 this to any of the charges in this case. And, again, the fact 11 that other people in the profession have said nice things about 12 her may give her confidence, may feel that she is a good 13 lawyer, that she shows good judgment. But those are in 14 completely different contexts than what you find in this case 15 and what she is alleged to have done in this case. And for the 16 reasons that I have indicated in my letter, it should be 17 excluded. 18 Let me just, your Honor, just deal with -- there are a 19 whole series of documents she was offering from Amnesty 20 International and other human rights type organizations which 21 are clearly critical of the government of Egypt. Your Honor 22 has reviewed all of those in relationship to Ms. Stewart's Rule 23 106 motion when we introduced some exhibits from her search. I 24 believe we have clearly stated our position in our papers. 25 Again, this is one of those matters, your Honor, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7261 4ACMSAT4 1 where, you know, whatever her knowledge, belief, is, her 2 thinking is about the government of Egypt, and their human 3 rights practices, as I've said in my letter, that's not a 4 defense, doesn't excuse what she is alleged to have done here. 5 It is not a defense of anything she has done in this case. Of 6 course, under Rule 403, even if your Honor thought it was 7 irrelevant, would really turn this whole case into a mini trial 8 about the practices of the government of Egypt. And, as I 9 said, even if she feels the way about Egypt and its government 10 consistent with those reports, that wouldn't justify or excuse 11 or entitle her to do what she is alleged to do in this 12 indictment. And for that reason it is irrelevant and should be 13 excluded. 14 MR. TIGAR: Briefly in response, your Honor. I, at 15 the very beginning, protested reopening of the any of the 16 issues at Sheikh Omar Abdel Rahman's trial. I understand those 17 objections were overruled on knowledge, intent, and state of 18 mind grounds. But I did so because I thought that the Sixth 19 Amendment requires lawyers to think as well of their clients as 20 could possibly be imagined, at least for a time so that they 21 can effectively represent them. 22 To point out the lies, if any, the misconduct, if any, 23 the mitigations, if any, and -- but that theory didn't flow. 24 And so we had all the sermons and we had 2009A, which, by the 25 way, was admitted against Ms. Stewart and Mr. Sattar. It was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7262 4ACMSAT4 1 admitted without a limiting instruction, your Honor, but at 2 transcript 3268 Mr. Barkow said it was admitted only as to 3 Ms. Stewart and Mr. Sattar. And why? Because she was there 4 and she heard it. 5 We, of course, do not want to retry Sheikh Omar Abdel 6 Rahman. We didn't want to start retrying him in the first 7 place. We offer one small bit to show what? And Ms. Stewart 8 will say what it was for, that Mr. Salem was an unsavory person 9 and that she would, as a result of hearing this testimony and 10 cross-examining, tend to discount some of the government's 11 theories about Abdel Rahman. 12 Now, Mr. Dember says it very well, we will open up. 13 In the first place, there were nine defendants or ten or 14 however many survived the various changes of plea in that case. 15 There were 13 lawyers. The fact that the case took a long time 16 doesn't mean that Omar Abdel Rahman part took a long time. But 17 I submit, your Honor, that we have had plenty of evidence, 18 plenty, days and days, of how dangerousness Omar Abdel Rahman 19 was supposed to be and how Ms. Stewart ought to have listened 20 to, credited, believed, relied on the hearsay. 21 THE COURT: My recollection is that the evidence from 22 the Rahman trial has been primarily the statements of Rahman. 23 There may be some other items, but they have been limited. 24 MR. TIGAR: Statements of Rahman and 2009A. 25 Did Mr. Dember wanted to add something? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7263 4ACMSAT4 1 MR. DEMBER: Your Honor, we also introduced 2 intercepted telephone calls with him as a participant. Those 3 are the only exhibits. In my statement, your Honor -- I don't 4 disagree with your Honor. What I meant to include were all of 5 the newspaper articles about who he is and what he did and who 6 listened to him and so on. That is to say, I'm talking about a 7 substantial body of hearsay out there that was offered for that 8 purpose. 9 THE COURT: If a portion of the cross of Salem were to 10 come in in order to discount his testimony, it is discounting 11 the substance of testimony which hasn't been there. So if 12 the -- because the evidence from the Rahman trial has been 13 Rahman talking. If the argument is, look, the defendant 14 thought that this was devised in some way by Salem, then it 15 would appear that, in fairness, what it was that Salem was 16 saying would come in along with the defendant's doubt as to the 17 credibility of Salem. And the substance of the cross that 18 sought to be introduced is the challenge to Salem's 19 credibility. 20 MR. TIGAR: If your Honor please, what's already in 21 evidence in 2009 are pages and pages of Mr. Khuzami describing 22 in great detail why Mr. Salem is a credible person and 23 summarizing what he is going to say. Under those 24 circumstances, we thought that this little snippet was the 25 answer. Now, if the Court holds that, no, if we do this, we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7264 4ACMSAT4 1 open up and we are going to listen to more and that's what the 2 rebuttal case is going to be, if the Court is holding that, I 3 will respectfully disagree. I'll argue against it when the 4 times comes; that is to say, the government's counter offer. 5 But I respectfully submit to the Court that what we 6 are doing now is leveling up the playing field with what we are 7 submitting. And I don't mean to quarrel with the Court about 8 unnecessarily or irrelevantly, but that is our view and we will 9 see what the government crossdesignates, if anything, and then 10 we will consider our position and the Court will rule. That's 11 what happened before. But 2009A is in and against Ms. Stewart 12 and that's our perspective. 13 Counsel says that the question is the jury is entitled 14 to know whether Ms. Stewart's state of mind is reasonable or 15 not. That's what he said. Now, I didn't think that the 16 reasonableness of a good-faith belief formed any part of the 17 specific intent equation. It is true, however, that if a 18 belief is unreasonable, it is less likely to be a good-faith 19 belief; that is, a defendant says I have a good-faith belief, 20 my conduct is lawful. How could you possibly believe that is 21 the answer when such and such is true? 22 By contrast, a defendant says, my belief in the 23 lawfulness of my conduct is good faith and it is also 24 reasonable. How do we know if it is reasonable or not? One 25 way is that others have repeatedly told me in the past that I'm SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7265 4ACMSAT4 1 a worthy adversary, such as Mr. McCarthy. So, yes, I accept 2 the prosecutor's statement. The reasonableness of these 3 good-faith beliefs is important and when Ms. Stewart says this 4 is how I got here, that, too, is irrelevant. 5 It is also not true that the Larry Davis case, for 6 example, did not involve any restrictions on media contact. 7 The source of Ms. Stewart's legal obligations as a lawyer are 8 the rules of professional responsibility of the State of New 9 York and not of any other place except other places where she 10 is admitted to the bar. And every jurisdiction had at the 11 relevant time some version, some amendment in light of Gentile 12 and some not of Rule 3.6. So lawyers have to deal with that 13 question of restrictions and how to deal with them and how to 14 think about them, and this question of the various kinds of 15 obligations. So it is just not -- it is not right to say that 16 those cases are completely apart from this one in terms of how 17 we deal with things. 18 It is interesting because -- and at the risk of 19 repeating, the facts of the Gentile case, as reflected in 20 Justice Kennedy's opinion, are that what Justice Kennedy was 21 struck by writing for five members of the court as to the 22 invalidity of 3.6, or the other opinion was about standard of 23 clear and present danger or not, was that the night before his 24 press conference for his client, Dom Gentile had really sat 25 down and thought, can I do this, can I hold this press SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7266 4ACMSAT4 1 conference? What are my conflicting obligations? What's 2 likely to happen? And it was exactly that kind of thoughtful 3 looking over what he did that I think helped to impress those 4 members of the court that agreed with the First Amendment 5 argument that we made for Dom Gentile. To the extent that's 6 important, I present it to the Court. 7 THE COURT: Let me go through the exhibits that I've 8 been given. 9 LS1, these are two memos by Kathleen Hawke that refer 10 to the medical care and conditions of confinement of Sheikh 11 Omar Abdel Rahman. The government objects on the grounds of 12 relevance and hearsay. The defendant asserts that "Sheikh 13 Abdel Rahman's medical condition and treatment is an important 14 issue in this case. The prospect of his dying for want of 15 proper care was a serious concern for federal authorities." 16 Michael Tigar letter, dated October 10, 2004. 17 Similarly, in the October 1, 2004 letter from defense 18 counsel, counsel points to the testimony of Dr. Edwardy about 19 Sheikh Rahman's medical condition and that none of Sheikh 20 Rahman's medical problems was "life threatening," transcript 21 6167. Given the arguments of counsel and Dr. Edwardy's 22 testimony, the memos have some relevance to the severity of 23 Sheikh Rahman's medical condition as to which the government 24 elicited testimony. 25 The defendant has not attempted to justify the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7267 4ACMSAT4 1 relevance of the descriptions in the memo of the "conditions of 2 confinement issues." The government objects on hearsay 3 grounds. The defendant responds that the memo is admissible 4 under 803(8) or 807. On its face there is a reasonable 5 argument that the memo would appear to be a report setting 6 forth matters observed pursuant to a duty imposed by law as to 7 which there was a duty to report. See 803(8)(b). 8 This is a memo by the director of the Bureau of 9 Prisons on the current condition of an inmate. However, the 10 admissibility of the report will not render admissible hearsay 11 within the report. The clearest hearsay concerning the medical 12 issues is the statement attributed to Mr. Clark at the bottom 13 of page 2. Therefore, the objection is Overruled except that 14 the memo would be redacted to eliminate the paragraph at the 15 bottom of page 2 beginning, Mr. Clark indicates. The memo will 16 also be redacted to eliminate the conditions of confinement 17 issues on pages 4 and 5, except a paragraph on odors beginning: 18 Inmate Rahman has stated on occasion that his refusal to accept 19 medical care is due to the bad odor in his cell. That 20 paragraph should not be redacted and the summary paragraph on 21 page 5 should not be redacted. 22 There will be a limiting instruction: "The memos are 23 not admitted for the truth of any statements by Mr. Clark." 24 And I would also be prepared to listen to any other suggestion 25 for a limiting instruction. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7268 4ACMSAT4 1 LS40. This is a June 20, 2000 Reuters article by 2 Mr. Salaheddin. The government did not object to the 3 admissibility of the document for Ms. Stewart's knowledge, 4 intent, and state of mind if she saw it. But defense counsel 5 says this is not a document that the defendant saw and so it 6 could not be offered for her knowledge, intent, and state of 7 mind. With that basis for admissibility gone, the defendant 8 offers no reasonable basis for the admissibility of the 9 article. 10 The defendant says that the article was identified 11 during the course of Mr. Salaheddin's testimony, but the 12 articles identified were not admitted and were used as past 13 recollection recorded. Because the articles themselves were 14 hearsay. 15 The defendant plainly has any arguments that arise 16 from the fact of the testimony itself that Mr. Salaheddin 17 produced an article and based upon past recollection recorded, 18 this is what he recorded. The defendant says that the articles 19 are necessary for completeness from Mr. Fitzgerald's testimony. 20 But Mr. Fitzgerald testified about articles he saw and sent to 21 Ms. Stewart which would be relevant for Ms. Stewart's state of 22 mind. An article that was not seen by Ms. Stewart is not 23 necessary for completeness with respect to her state of mind. 24 The defendant also says that the article shows that 25 Sheikh Abdel Rahman's message is -- could not have been seen as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7269 4ACMSAT4 1 a call to violence, but that relies on the truthful content of 2 the statements in the article such as those by Mr. Al-Zayyat 3 and is an impermissible use of the article itself, which is 4 hearsay. The defendant has, from Mr. Salaheddin's testimony, 5 whatever value the defendant wishes to make of the reports by 6 Mr. Salaheddin. Therefore, the objection to the article is 7 sustained. 8 LS44. This is a newspaper article describing 9 Ms. Stewart's past cases and the fact that she represented 10 Sheikh Rahman. The article is plainly hearsay. She contends 11 that reaffirms her approach. It reaffirms that her approach to 12 the law is right. There is nothing about the article that 13 could reasonably be seen as relevant to any relevant intent or 14 state of mind in this case, and any relevance would be 15 substantially outweighed by confusion and unfair prejudice. 16 The objection is sustained. 17 LS402, this is a specific article about Ms. Stewart's 18 representation of Larry Davis. For the same reason that LS44 19 is inadmissible, LS402 is inadmissible. The objection is 20 sustained. 21 LS49 is withdrawn. 22 LS101, the picture of Ms. Stewart when she was sworn 23 into the bar. It is not relevant to any issue in the case and 24 is an appeal to sympathy rather than the probative value of 25 evidence. Any relevance is substantially outweighed by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7270 4ACMSAT4 1 danger of unfair prejudice. The objection is sustained. 2 LS102. This is a picture of the people in 3 Ms. Stewart's office. The defendant says that there will be 4 testimony about the people and it is permissible to put a face 5 on the people about whom there will be testimony. The 6 objection is overruled. 7 LS103 and LS104. These are pictures of the outside of 8 Ms. Stewart's law office building. They show where she worked. 9 The articles have marginal relevance to give the jurors an 10 understanding of where the events transpired, but one picture 11 is surely enough to show that. At least one of the pictures 12 appears to concentrate more on the nature of the neighborhood 13 and the local parking lot than a picture of the office. But 14 the defendant can offer one of 103 or 104, whichever the 15 defense believes most appropriately shows the office about 16 which there will be testimony. 17 L is 201. This is a brief excerpt of the 18 cross-examination of Emad Salem by Ms. Stewart at Sheikh 19 Rahman's trial. The explanation to the admissibility is that 20 it is offered "in support of Ms. Stewart's belief that a 21 critical issue in Sheikh Omar Abdel Rahman's case was 22 Mr. Salem's credibility." 23 The defendant points out that portions of the opening 24 statements and other portions of the trial have been edited. 25 The defendant proffers that the record contained the opening SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7271 4ACMSAT4 1 statement by Mr. Khuzami about the credibility of Mr. Salem. 2 The government states that to the extent that Ms. Stewart 3 argues that the excerpt is admissible to prove her state of 4 mind, then the government should be allowed to introduce 5 Mr. Salem's direct testimony and all of the other evidence 6 introduced against Sheikh Omar Abdel Rahman. 7 As I explained in the course of the argument, the 8 credibility of Emad Salem could affect Ms. Stewart's state of 9 mind on the dangerousness of Sheikh Omar Abdel Rahman. But the 10 cross-examination could not be considered in isolation without 11 other portions of the testimony, including certain specific 12 testimony by Mr. Salem against Sheikh Rahman, but that would 13 not open up all of the evidence in the eight or nine-month 14 trial of the Sheikh. 15 If the defendant seeks to offer this excerpt of the 16 cross for Ms. Stewart's knowledge, intent, and state of mind, 17 then the government at the same time, for purposes of 18 completeness, will be permitted to submit relevant portions of 19 other testimony. The parties should attempt to arrive at some 20 resolution. 21 LS202, this is Judge Sprizzo's December 12, 1984 22 opinion concerning whether to grant the extradition request for 23 Thomas Doherty. The opinion concerned whether the offenses 24 fell within an exception to the extradition treaty for offenses 25 that were "of a political character." The defendant says that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7272 4ACMSAT4 1 the exhibit is relevant because she saw parallels between 2 Sheikh Rahman's case and litigation over Irish issues. 3 The opinion is plainly hearsay and would only be 4 admissible not for the truth of any of the matters asserted, 5 but the issues raised in the opinion are not the issues raised 6 in this case. And any relevance of that opinion for any state 7 of mind of the defendant which has not been explained would be 8 substantially outweighed by the danger of unfair prejudice and 9 confusion. The objection is sustained. 10 LS301 to 304. These are letters from three judges and 11 a prosecutor in 1987 recommending Ms. Stewart for the 18(b) 12 panel. The letters were written about her years before the 13 alleged offenses in this case. While Ms. Stewart says that the 14 letters are relevant for her state of mind regarding her 15 professional ability, it is plain that any relevance to any 16 state of mind at issue in this case is substantially outweighed 17 by the danger of unfair prejudice and confusion. The objection 18 is sustained. 19 LS305. This is a cover letter from a prosecutor 20 inviting Ms. Stewart to join a panel discussing terrorism 21 trials and the supporting materials include a program showing 22 that she appeared on the panel on November 2, 1996. The 23 defendant asserts that this is "state of mind evidence." She 24 asserts that her view of the "often competing values of public 25 safety and human rights form the core of her approach to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7273 4ACMSAT4 1 representing controversial clients." She also argues that her 2 judgment was "heavily influenced by events such as this." 3 However, she points to nothing in the exhibit that 4 could reasonably effect her knowledge, intent, and state of 5 mind with respect to the crimes charged in this case. Any 6 relevance of the exhibit is substantially outweighed by the 7 danger of confusion and unfair prejudice in particular and a 8 field of improper considerations. The objection is sustained. 9 LS306. This is apparently a letter written by 10 Ms. Stewart to Ahmed Sattar and Nasir Ahmed about a "condition 11 campaign for Sheikh Omar Abdel Rahman. The says it is 12 "relevant to her state of mind." The government says that the 13 exhibit is hearsay and irrelevant. The exhibit would not be 14 hearsay under 803(3) because on its face it expresses 15 Ms. Stewart's then current belief that I believe we can 16 organize a number of them to support what I call a "conditions 17 campaign." That belief has some relevance to the reasons why 18 Ms. Stewart was talking to Sheikh Omar Abdel Rahman and meeting 19 with Sheikh Omar Abdel Rahman in prison. Therefore, the 20 document has some relevance and the relevance is not outweighed 21 by the danger of unfair prejudice. The objection is overruled. 22 LS401, this is an article by Ms. Stewart and 23 Mr. Cohen. It is hearsay and, in any event, the substance of 24 the article has no relevance to any issue in this case or the 25 state of mind of Ms. Stewart to any of the issues in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7274 4ACMSAT4 1 Moreover, the article would also be excluded under Rule 403 2 because any relevance is outweighed by the danger of confusion 3 and unfair prejudice. The objection is sustained. 4 LS403 to 405. These are newspaper articles referring 5 to the use of secret classified information in immigration 6 cases, particularly that of Nasir Ahmed. The Court has already 7 admitted the immigration judge's decision in favor of Nasir 8 Ahmed after the government sought successfully to admit the 9 government's submission to the immigration judge for 10 Ms. Stewart's knowledge, intent, and state of mind because she 11 had those materials. 12 These newspaper articles, however, which deal with the 13 issues of using classified information in immigration 14 proceedings are not relevant to any relevant state of mind of 15 Ms. Stewart and any relevance is outweighed by the danger of 16 confusion and unfair prejudice. Moreover, to the extent that 17 the purpose is to criticize the use of classified information 18 in immigration purposes, they are cumulative to the findings of 19 Judge Livingston which have already been admitted for 20 Ms. Stewart's knowledge, intent, and state of mind. The 21 objection is sustained. 22 LS406. This is a Wall Street Journal article dated 23 September 22, 1995 critical of the evidence in the trial 24 against Sheikh Rahman. The defendant asserts that she read it 25 at the time and that it "helped to shape her approach to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7275 4ACMSAT4 1 representing her client." The government argues that the fact 2 that reporters may share Ms. Stewart's view of the evidence is 3 irrelevant, but the government has introduced newspaper 4 articles for their effect on the knowledge, intent, and state 5 of mind of the defendants, and Ms. Stewart's knowledge, intent, 6 and state of mind could well have been influenced by an article 7 that questioned the evidence against Sheikh Rahman. The 8 relevance is not outweighed by the danger of unfair prejudice. 9 The objection is overruled. The article will be admitted 10 subject to the instruction. This is a newspaper article. It 11 is not received for the truth of the any of the matters 12 asserted in it, but for any relevance to the knowledge, intent, 13 and state of mind of Ms. Stewart. 14 LS501 to 520. These are various reports by Amnesty 15 International, The Lawyers Committee for Human Rights, Human 16 Rights Watch and others, dated 1991 through 1996, and 17 discussing alleged human rights abuses in Egypt or how to 18 pursue human rights in Egypt. The government argues the 19 documents are irrelevant. The defendant argues that the 20 documents were relevant in educating her about the issues faced 21 by Nasir Ahmed and Sheikh Omar Abdel Rahman. It is plain that 22 the documents are irrelevant to any relevant state of mind at 23 issue in the charges in this case. 24 Knowledge of human rights, abuses in Egypt would not 25 be a defense to any of the charges in this case. See United SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7276 4ACMSAT4 1 States v. Rahman, 189 F.3d 88, 137-38 (2d Cir. 1999); moreover, 2 any possible relevance which the Court finds does not exist 3 would be substantially outweighed by the dangers of unfair 4 prejudice and confusion. 5 LS601 through LS606. These are six different books as 6 to which the defendant has submitted the covers and table of 7 contents. They include books such as Elliott Evans Cheatham's 8 book entitled A Lawyer When Needed, published in 1963, Clarence 9 Darrow's Attorney for the Damned, and Amnesty International 10 report dated 1996 which relates to conditions in numerous 11 countries throughout the world from Afghanistan and Albania to 12 Zambia and Zimbabwe. 13 While the defendant says that all of these books 14 relate to her knowledge, intent and state of mind, she has made 15 no showing that they are relevant to any state of mind relevant 16 to the charges in this case, nor has she made any particular 17 offer that all of her books are relevant to her knowledge, 18 intent, and state of mind. Thus, Exhibits 601 through 606 are 19 excluded. They are irrelevant and any relevance is 20 substantially outweighed by the dangers of confusion and unfair 21 prejudice. 22 That brings me to the transcripts of recordings. And 23 my rulings on these are necessarily tentative because I think 24 that the other defendants should also be heard on LS702. This 25 is a transcript of a telephone conversation between Ms. Stewart SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7277 4ACMSAT4 1 and Mr. Yousry. And I should hear Mr. Yousry's position on the 2 call. Ms. Stewart offers the entire recording. The government 3 does not object to pages 1 through 8. And I would assume down 4 to the line which says okay, very good. Subject to any 5 comments by Mr. Yousry, those portions are, therefore, 6 admitted, or can be admitted. 7 The government objects to the remainder of page 8 and 8 the rest of the conversation through page 19 on the grounds of 9 relevance. There is in fact no showing of relevance that the 10 Court can see. The remainder of the conversation is not 11 necessary for completeness. It deals with subjects other than 12 the subject at pages 1 to 3, which deals with developments 13 relating to the alleged withdrawal from the cease fire. The 14 remainder of the call deals with a translation by Mr. Yousry of 15 a passage and then a discussion between Ms. Stewart and 16 Mr. Yousry about the compensation to be paid to Mr. Yousry for 17 a translation assignment outside the country and arranging for 18 it. There is no showing of relevance. Ms. Stewart says that 19 it is relevant to show the professional relationship between 20 Ms. Stewart and Mr. Yousry. These passages do not have any 21 material relevance for that issue and any relevance is 22 substantially outweighed by waste of time and confusion. 23 LS703. 24 MR. DEMBER: Your Honor, may I just interrupt briefly? 25 I didn't make it clear in my letter. But with respect to 701T, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7278 4ACMSAT4 1 702, these are statements by the defendants being offered by 2 the defendants. And because that technically they are hearsay, 3 the reason I didn't object is because I expect that and I 4 request that your Honor will give a limiting instruction to the 5 jury on each of these that they are only offered to establish 6 the defendant's state of mind, particularly with respect to 7 Stewart. I'm talking about that now. Otherwise, it is 8 inadmissible hearsay, out of court declarations. 9 THE COURT: Did I miss a 701? I was at 702. 10 MR. DEMBER: I don't think I objected to that at all, 11 your Honor. It is not in the letter. Maybe your Honor skipped 12 it. I didn't object, but I want to make it clear that with 13 respect to 701 and 702, it is our position these can only be 14 admissible for purposes of establishing defendant's state of 15 mind, or the defendant's state of mind since Mr. Yousry is on 16 the calls with Ms. Stewart. 17 MR. TIGAR: Your Honor, I hesitate to make any 18 statement about these calls without Mr. Ruhnke being here. 19 THE COURT: Do you want to -- 20 MR. TIGAR: So I will observe that we disagree with 21 the government's position as to hearsay character of the call 22 and the propriety of the limiting instruction. 23 THE COURT: You really do have to respond as to it. 24 MR. TIGAR: Yes, I do. Then the only question is when 25 I should do so and whether I should wait for my colleague, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7279 4ACMSAT4 1 Mr. Ruhnke -- 2 THE COURT: After talking to Mr. Ruhnke and before any 3 of these are offered. 4 MR. TIGAR: Yes, your Honor. 5 THE COURT: LS7034. 6 MR. DEMBER: Your Honor, make I make one point about 7 703? 8 THE COURT: Yes. 9 MR. DEMBER: It has been offered as a two-page 10 transcript. And the last entry on the second page reads: 11 Abrupt end of call. This is, in fact, an eight-minute 12 conversation that colleagues of mine listened to yesterday, and 13 it is complete on a disk. My only point is, obviously, these 14 transcripts are only offered as aids because they are all in 15 English. These conversations are in English. My point is, if 16 703 is to offered, if ruled admissible, then a full transcript 17 be prepared or no transcript at all be used since, as I said, 18 it is an eight-minute call and they cut it off after two pages. 19 There is more to it. In any event -- 20 MR. TIGAR: Your Honor, I think this illustrates the 21 need for the parties to get together on these things and talk 22 about the mechanics of it. 23 THE COURT: That's fine. 24 MR. TIGAR: If indeed this transcript, which we have, 25 is not the right one, that should be looked into. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7280 4ACMSAT4 1 THE COURT: I do have -- I will go through my views 2 on -- and it may help you in talking about the transcripts, on 3 703, 704, and 705. 703, this is a transcript of a telephone 4 conversation on September 7, 2001 between Ms. Stewart and 5 Mr. Yousry in which Ms. Stewart explains that she has received 6 a letter from the Sheikh's family; perhaps, for transmission to 7 the president, and a discussion that the Taliban said that they 8 didn't hear anything about it. The government objects on 9 hearsay and relevance grounds. 10 On its face the recording is hearsay when offered by 11 Ms. Stewart. Ms. Stewart says that the conversation is 12 relevant to showing her state of mind. But her statements are 13 statements of historical fact barred by the hearsay rule. 14 Mr. Yousry's statements are also hearsay. And Ms. Stewart does 15 not explain how the statements by Mr. Yousry are relevant for a 16 nonhearsay purpose or come within an exception to the hearsay 17 rule. Therefore, at this point, the objection to LS703 is 18 sustained. 19 LS704. This is a telephone recording between 20 Ms. Stewart and Mr. Yousry dated October 11, 2001. Ms. Stewart 21 describes a telephone conversation with Brian Ross and ABC's 22 interest in doing a program on Ms. Stewart getting fired as the 23 Sheikh's counsel. 24 Mr. Yousry warns that maybe they would not only fire 25 Ms. Stewart but do something else, and she laughs and says, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7281 4ACMSAT4 1 arrest you, too, Mohammed. 2 The government objects on hearsay grounds and the 3 defendant responds that the recording is admissible to show 4 state of mind. But it is unclear from the defendant's argument 5 at this point what the defendant means by state of mind in this 6 context. The recording contains hearsay, out-of-court 7 statements by Ms. Stewart, and Mr. Yousry, that the defendant 8 does not say are not offered for the truth of the statements. 9 It contains statements of historical fact by Ms. Stewart as to 10 a conversation that she allegedly had with Brian Ross. 11 Without more, the Court did not find that the 12 transcript is not barred by the hearsay rule, but the defendant 13 could make a further proffer as to what the relevant nonhearsay 14 purposes of the transcript were. 15 LS705. This was a transcript of a recording on May 16 17, 2000 between Mr. Yousry and Ms. Stewart. It was delivered 17 with materials to the Court over the weekend and the parties 18 have not had an opportunity to make their positions known as to 19 the admissibility of the recording. From the standpoint of 20 Ms. Stewart, who is offering it, Ms. Stewart would have to show 21 the nonhearsay purposes for offering the transcript, if in fact 22 the government objects to the transcript. 23 MR. DEMBER: We do, your Honor, just so you know. 24 THE COURT: One wonders -- there are certainly issues 25 raised if the defendant really is offering that transcript as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7282 4ACMSAT4 1 to what the nonhearsay purpose is or exceptions to the hearsay 2 rule on which the defendant relies for that transcript. And 3 since it involves Mr. Yousry, Mr. Ruhnke should be consulted on 4 it also. 5 MR. TIGAR: Your Honor, with respect to all of these 6 calls, we will be asking Ms. Stewart about events in her 7 representation. Those events may relate to subjects that are 8 in these calls. We will not mention the existence of a call or 9 whatever; just simply signal that. We do believe that we can 10 lay the foundation more clearly than we would have in an 11 exchange of letters. I don't like in a letter to the Court to 12 portray word for word what I think Ms. Stewart is going to say 13 because I just don't think it would be right to do that. And 14 she is going to say what she is going to say, what she 15 understands and believes and knows to be the truth. And I 16 shouldn't be her interlocutory for that purpose, so we will be 17 back on that. 18 With respect to the May one, that goes to the signing 19 of the affirmation. 20 That said, I will also, for example -- and I don't 21 know how the examination is going to go. But she might very 22 well say, you know, as a part of looking up the question, would 23 it be a good idea for the Sheikh to go back to Egypt? I had to 24 look and see what conditions were there. And whether that -- a 25 statement of that kind, if made. I have no idea raises these SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7283 4ACMSAT4 1 things. We may come back to the Court and say, well, here is a 2 portion of one of these books that she actually marked when she 3 went and looked at one part of the page. So I wanted to tell 4 the Court that we do reserve the right to do that, and we are 5 attempting to make a complete record of everything Ms. Stewart 6 will be saying. 7 THE COURT: That would raise the question as to 8 whether simply the fact that this is what she did. She looked 9 at a book or looked at an article that makes the article 10 relevant when the article could not reasonably go to a defense 11 in the case or of relevant knowledge, intent, or state of mind 12 for the reasons that the Court of appeals set out in Rahman. 13 That doesn't mean necessarily that the question is an improper 14 question about what the defendant did. But it doesn't follow 15 from that that because she looked at a book or pamphlet about 16 human rights abuses in Egypt that the pamphlet on human rights 17 abuse in Egypt goes in before the jury. 18 MR. TIGAR: I understand that. I would like to make 19 two observations. One, I would like to make and the other 20 based on the citation of Rahman. 21 In our view, the Rahman distinction between where you 22 start thinking about people with First Amendment and where you 23 don't tells us that this case falls on the you need to start 24 thinking about the First Amendment. 25 THE COURT: Let me just stop you just for a moment. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7284 4ACMSAT4 1 I'm referring to the portion of the Rahman decision which dealt 2 specifically with the proposed expert on human rights abuses in 3 Egypt where the Court looked at that evidence and explained why 4 it was rightly kept out. 5 MR. TIGAR: Yes, I understand that, your Honor. But 6 you see, this -- indeed, that illustrates the problem, 7 Ms. Stewart proffered the evidence. She thought in her 8 representation to Sheikh -- and I think to this good day does, 9 that that sort of thing is important in evaluating who her 10 client is and whether he represents a danger. Because danger 11 is situational. I'm not suggesting that that should be argued 12 now. But that is, as I understand it, her view. I can say 13 more about that if the Court thinks it is useful by way of a 14 prologue to what we are going to hear. 15 But I, for example -- I've represented people from the 16 African American community. And that the background, the 17 upbringing, the understanding of that struggle certainly 18 influenced my judgment as to whether or not they were 19 dangerousness or whether the danger the government said 20 attached to them had to do with only certain kinds of 21 situations. I hope I make myself clear. So we have issues as 22 we go along. 23 The other thing is, with respect to hearsay, this 24 hearsay, 803(3), let's in state of mind, emotion and expressly 25 says, not the fact remembered or believed for the truth of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7285 4ACMSAT4 1 fact. 2 Now, that's always to me been puzzling. Does that 3 mean that the hearsay comes in and the jury gets an instruction 4 not for the truth of the fact or member to believe? Or is that 5 a determination that none of the hearsay comes in if the non-- 6 if the hearsay exception material is linked somehow to 7 backwardly looking material? Question. 8 But also overall, I think it quite monstrous that the 9 government should be able to listen to people's telephone 10 conversations for five years, pick the ones they want to play 11 and then when it is our turn, then say, sorry, that's all 12 hearsay. Before you get anything you choose before we listen 13 to with your client, you have to jump over the hearsay rule. 14 With respect to the very limited conversations that we wish to 15 introduce here, I suggest that that approach is barred by 16 Federal Rule of Evidence 807 and the compulsory process clause. 17 THE COURT: That's not right. It has plainly long 18 been the rule that a party opponent can offer statements, but 19 that the party can't offer the party's own statements made out 20 of court. 21 I must say, going over some of these transcripts, it 22 is not clear to me why the parties are taking the positions 23 that they are. Not in terms of the rules of evidence, but in 24 terms of whether the jury should or should not hear individual 25 conversations that are being proffered. But as I've said SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7286 4ACMSAT4 1 before, what I do is I decide the matters brought before me 2 based on the facts and the law. And there is a hearsay 3 objection and so then it becomes whether the conversation is 4 being offered -- whether it is being offered for the truth; if 5 so, whether there are exceptions with respect to all or part of 6 the conversations. And one such exception would be 803(3). 7 MR. TIGAR: Your Honor, not to belabor this, it is 8 perfectly clear from the government's position -- if the Court 9 remembers the September hearing where the government said, 10 look, even if you prove there was a bargain, we will prove she 11 broke it because she kept on doing the violations stuff. The 12 one reason that sometimes we offer evidence here is we are 13 perfectly clear that the government may attempt to move into 14 certain areas on cross-examination that -- and we would like to 15 get there first. This whole case, so much of this argument is 16 going to come back around under 801(d)(1)(B) at the right time. 17 I just signal that and we will see where we go. 18 THE COURT: I believe I've gone as far as I can on all 19 of the exhibits. 20 MR. TIGAR: There was the in limine issue, too, that 21 Mr. Barkow had. 22 THE COURT: I know. 23 MR. TIGAR: I'm sorry. 24 THE COURT: I finished exhibits. I was turning to the 25 in limine issue. And what the parties told me in their SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7287 4ACMSAT4 1 correspondence is that they are not seeking a ruling on these 2 issues. They think that -- that it might be helpful to talk it 3 out with the Court and have an exposition. That's what both 4 letters say in substance. I don't usually talk out things in 5 the abstract. 6 MR. TIGAR: Your Honor, this exchange of letters 7 freshens the meaning of one's perception of the term ripeness. 8 It is the Muskrat case redux. It really -- I don't think there 9 is a live controversy here. I am sure there are going to be 10 some. And we promise for our part to treat them responsibly 11 and in accordance with what we understand the Court's 12 directions to be. 13 MS. BAKER: Your Honor, may I be excused? 14 THE COURT: Yes, please. Thank you. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7288 4acesat5 1 THE COURT: There was -- there was one issue that I'll 2 flag for you in the correspondence because -- 3 MR. BARKOW: I'm sorry, your Honor, I couldn't hear 4 what the Court said. 5 THE COURT: There was one issue that I'll flag for you 6 in the correspondence. The issue is at a somewhat abstract 7 level, I think, but I will flag it for you. 8 The government says that the defendant should not be 9 able to argue the, quote, alleged legal invalidity of the SAMs. 10 And then the defendant in her letter says her opinions as to 11 the validity or invalidity, though not the unconstitutionality 12 of actions directed at her, are relevant and admissible. 13 And the reason why I say it's a little abstract is 14 that the defendant could certainly be asked why she took 15 certain actions. And as it's been phrased in the arguments 16 today, did she intend to violate the law when she took various 17 actions? And those questions -- I don't see any argument that 18 those questions could somehow be improper, and then the 19 defendant would respond to questions such as that. 20 That is a different question from a question to the 21 defendant that said, did you think that the SAMs were legal or 22 constitutional? I've already said that the defendant could not 23 challenge the legality or constitutionality of the SAMs. 24 That's a legal matter. 25 And it would also appear to be true under Cheek and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7289 4acesat5 1 other cases that disagreement with a law is not a defense. But 2 I don't hear the defendant saying that or posing it in that 3 way. 4 What the argument of counsel today was, the defendant 5 did not knowingly and intentionally go about violating the 6 statutes and committing the crimes with which she is charged. 7 And I just raise it because there seemed to be a slight 8 disconnect between the government's letter and the defendant's 9 letter, and it's certainly not -- I'm certainly not being asked 10 to rule on anything at the moment, but I flag it for you as an 11 issue. 12 MR. TIGAR: I agree with everything your Honor has 13 said. We understand the issue in that way. 14 And particularly, your Honor cites Cheek, which is the 15 Court's latest on the intentional violation of a known legal 16 duty definition of willfulness. And I understood the Court 17 there -- that's why I said the constitutionality, because isn't 18 that Justice White who wrote the majority in Cheek? I'm not 19 sure. 20 But the Court says, you know, Mr. Cheek, Captain 21 Cheek -- I remember him because he's the guy that said that he 22 didn't think income tax law applied to him, the airline pilot. 23 He can't say, oh, I thought the law was unconstitutional, 24 therefore I lack the intent. Nope, doesn't work. I thought 25 the law was invalid for some reason. Doesn't work. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7290 4acesat5 1 But the question, your Honor, the first question, why 2 did you do this? Well, I thought that I was acting conformably 3 to the law as I understood it. If that -- and I may not be 4 quoting your Honor accurately. That's where we intend to be 5 and not anyplace else. 6 We are not making the defense that Justice White says 7 for the Court is prohibited, nor are we trying to, you know, 8 backdoor some other way to do this. We're right where the 9 Court was there, and that's what we understand to be the law. 10 THE COURT: All right. 11 MR. TIGAR: That said, your Honor, would your Honor be 12 willing to consider not sitting tomorrow with the jury, it 13 being 2:30 in the afternoon and a great deal remaining to be 14 done with respect to coping with the rulings that your Honor 15 has made? 16 THE COURT: That would leave us with only a half a day 17 this week, Thursday, where we're sitting only until 1:30 18 because I had a request from a juror, I don't remember which 19 juror it was, who had a family emergency to go to. I am really 20 reluctant to dispose of an entire day. 21 I would be -- there also are other issues that the 22 parties gave me to deal with first thing tomorrow morning. So 23 I would certainly be attentive to breaking early tomorrow. I'm 24 very sensitive to the time necessary to prepare, and so I'd 25 listen to breaking early. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7291 4acesat5 1 MR. TIGAR: Well, we'll -- we can certainly -- we have 2 enough here to get started with, your Honor. I will focus on 3 getting the Elliott examination together and ready in light of 4 your Honor's rulings. 5 And when Ms. Stewart is on the stand, we would request 6 that we take a break every hour and 15 minutes max. It's going 7 to be a long and -- is that -- we have a lot of exhibits. It's 8 a long and arduous process. Ms. Stewart and I have a combined 9 age of about 130 years and -- 10 THE COURT: Of course. Of course. I'll break every 11 hour. 12 MR. TIGAR: Thank you. 13 THE COURT: Does the government want to be heard on 14 the issue of timing at all? 15 MR. DEMBER: Your Honor, I think just that we do have 16 Mr. Elliott coming up tomorrow from Washington. So if we -- 17 you know, obviously we'd like to try to get through his 18 testimony, if possible, before the end -- before we break 19 tomorrow, if that's possible. 20 MR. TIGAR: Oh, your Honor, Mr. Elliott's testimony 21 will be finished with tomorrow. I mean, it shouldn't go more 22 than two hours, at least from the standpoint of our adverse 23 witness examination. We would like the jury told that he's 24 being recalled as an adverse witness in the case. 25 THE COURT: Oh, I don't tell them -- you can -- I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7292 4acesat5 1 don't tell them -- 2 MR. TIGAR: It will become clear. 3 MR. DEMBER: Your Honor, one other matter from us is 4 when we were presenting the evidence, the day before or 5 sometime before, we tried to do it the Friday before the week 6 evidence was presented, provide 3500 material to the defense. 7 And obviously there was an equivalent for defense counsel to be 8 providing us with the same sort of material. 9 We'd request that they sometime -- at least a day or 10 so before a witness gets on the stand so we can review it and 11 be prepared to cross-examine those witnesses. We'd also like 12 the courtesy of, at least a day before a witness gets on the 13 stand, being told who those witnesses are so we can be ready 14 for it and bring to court whatever materials we need to bring 15 to do our cross-examinations. 16 MR. TIGAR: Your Honor, I discussed that with 17 Ms. Baker earlier, and the agreement is this: That by Thursday 18 morning, after I've reviewed the transcript of Mr. Elliott's 19 testimony, we will inform her if we intend to call further 20 witnesses on the issues about which Mr. Elliott's being 21 tendered. And then at that point we would list their 22 identities, their prior things and all of it, including the 23 sort of indication of what they're going to testify about, to 24 the extent it's not reflected. 25 Any other witnesses we have, we don't at present, that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7293 4acesat5 1 depends on rulings with respect to Ms. Stewart's testimony and 2 how that goes, whether we need a witness to fill in a detail 3 here and there. And of course as soon as we're aware that 4 that's going to be necessary, we will let the government know. 5 But we're certainly conscious of our obligation. 6 THE COURT: All right. 7 MR. DEMBER: I'm assuming, your Honor, that obviously 8 Mr. Elliott will be a witness tomorrow. And from the way it 9 sounds, if he's done tomorrow, then Ms. Stewart will be the 10 next witness. And hopefully if there's anything like the 11 equivalent of 3500 material they have for either of those two 12 witnesses, if we haven't got it already, we'll get it shortly 13 or sometime today. 14 MR. TIGAR: Is it the government's position that 15 they're looking for 26.2 material on Ms. Stewart? 16 THE COURT: I assume reverse 3500 material? 17 MR. DEMBER: Yes. 18 MR. TIGAR: And that would be a prior statement of 19 Ms. Stewart to her counsel that -- I may have the wrong edition 20 of the rule, your Honor. 21 MR. DEMBER: Your Honor, that rule obviously does not 22 apply to the defendant. The rule explicitly excludes the 23 defendant, but obviously we're talking about -- 24 MR. TIGAR: That's what I read, your Honor. If 25 there's some other rule, we could use that one. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7294 4acesat5 1 MR. DEMBER: We'd be happy to use that rule. 2 MR. TIGAR: As soon as a copy of it is delivered from 3 the FBI, your Honor, I'll respond to it. 4 THE COURT: OK. Anything else? 5 All right. Then we'll see you all at 9:15 tomorrow 6 morning. Actually, better make it 9:00 tomorrow morning. OK. 7 (Adjourned to October 13, 2004, at 9:00 a.m.) 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