7959 4B35SAT1 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 November 3, 2004 8 9:20 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 (Pages 7960-7961 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7962 4B35SAT2 1 (In open court) 2 THE COURT: Good morning, all. 3 We have a new marshal who will be standing in for 4 Daniel over the next few weeks and I have asked him to 5 introduce himself to the parties so that they'll know who he 6 is. 7 I have correspondence from the government asking for 8 an instruction and a response from Ms. Stewart. I am prepared 9 to listen to the parties. I am also prepared to tell you what 10 my views are at this point. 11 So, it is the government's request for an instruction. 12 Ms. Stewart submitted something in opposition. I said it might 13 expedite things if I gave you my initial reaction but, again, I 14 am perfectly prepared to listen to the parties. 15 I am not inclined to give the proposed instruction at 16 this time. This instruction is a part of the instructions that 17 the Court should consider in the context of the elements of 18 defenses including the mental state and any defenses. 19 The instruction should not be given in isolation from 20 the other instructions and of course when the Court gives its 21 instructions, the Court will explain to the jurors that they 22 should consider the instructions as a whole. This is not a 23 case where there has been some misconduct that has occurred 24 which needs correction or where some limiting instruction is 25 required, in my view, at this time. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7963 4B35SAT2 1 The Court, at an earlier point, as the government 2 points out in its memo, raised the issue of Cheek and both the 3 defense and the government cite Cheek, indeed the government I 4 believe cited it in the context of request to charge -- and 5 there are various parts of Cheek. This is not an income tax 6 case so there are various parts of Cheek and parties look to 7 various parts of Cheek. 8 The Court raised this issue. The Court raised the 9 issue of the unavailability of defense that the SAMs were 10 unconstitutional or invalid, and the Court raised it before the 11 testimony so that the parties were aware of the issue so that 12 the parties were fully aware of all of the issues that were out 13 there before the testimony was given. 14 The testimony actually from the first defendant to 15 testify is not completed and the testimony is what it is and 16 the jury will have to assess it in accordance with my 17 instructions on the law. 18 And of course the parties will have the opportunity to 19 make any arguments they wish at the charging conference. 20 The only basis for this mid-trial instruction that I 21 see in the government's memorandum, is the government's 22 statement that "there is now enough in the record for the jury 23 to be wondering about the issue, which they should not." 24 Government letter at page 13. 25 But the jury has already been told repeatedly to keep SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7964 4B35SAT2 1 an open mind until I have instructed them on the law, and this 2 instruction logically belongs with the other instructions on 3 the elements of the offenses and any defenses. Therefore, I 4 would not be inclined to give the instruction at this time. 5 And as I said, I am perfectly prepared to listen to 6 the parties. 7 MR. BARKOW: Your Honor, we have nothing to say at 8 this point. 9 MR. TIGAR: We don't have anything to say either. 10 THE COURT: Okay. 11 THE COURT: Let me talk to the parties at the side 12 bar. 13 (Page 7965 SEALED by order of the Court) 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7966 4B35SAT4 1 (In open court) 2 THE COURT: Bring in the jury. 3 (Jury present) 4 THE COURT: Good morning, ladies and gentlemen. 5 THE JURY: Good morning. 6 THE COURT: It is good to see you all. 7 Ladies and gentlemen, just one other scheduling issue. 8 We are going to break today at 2:00, and so we are going to try 9 and have lunch for you at 12:15 and do a slightly shorter lunch 10 to be able to get you out at 2:00. 11 With that, Ms. Stewart is on the stand. 12 Mr. Fletcher? 13 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 14 are still under oath. 15 THE WITNESS: Yes. 16 LYNNE STEWART, resumed 17 THE COURT: Mr. Tigar, you may proceed. 18 DIRECT EXAMINATION (continued) 19 BY MR. TIGAR:: 20 Q. Ms. Stewart, back in that time when you were trying the 21 case, Sheikh Omar Rahman's case, did journalists ask you your 22 views about your personal views about violence? 23 A. They did, yes. 24 Q. And what did those questions make you think? 25 A. Well, at first I was somewhat surprised because, you know, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7967 4B35SAT4 Stewart - direct 1 I have done a lot of cases that involved a certain level of 2 violence and my personal views were never at issue. But 3 because I'm the lawyer it's not about my personal views, it is 4 about what happened, what could be the motive, etc., that led 5 to violence, perhaps. 6 But it is not about the lawyer's personal take on it. 7 Q. Do you remember talking to Joe Fried of the New York Times 8 in that mid-1995 period, and him asking you about your own 9 views about violence? 10 A. Yes, I do. I think Mr. Fried was covering the case for the 11 Times and he did a piece, something, I think, maybe in May or 12 June of 1995. 13 Q. Do you remember about what you said to him in answer to his 14 question on that subject? 15 A. Yes. I actually looked that over today before I testified 16 and I said to him that I was -- my political view is I am a 17 revolutionary with a small R, that I do believe that basic 18 change is necessary. 19 I think some of it will be accomplished nonviolently 20 such as the fact that my granddaughter now plays NCAA 21 basketball and maybe can play in Madison Square Garden someday. 22 That revolution happened nonviolently. 23 But I think to rid ourselves of the entrenched 24 voracious type of capitalism that is in this country that 25 perpetuates sexism and racism, I don't think that can come SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7968 4B35SAT4 Stewart - direct 1 nonviolently. 2 And I think I said to Mr. Fried that I was against 3 anarchistic violence, meaning by that the kind of violence that 4 is not supported by the majority of the people. I'm talking 5 about a revolution of the people that overthrows institutions. 6 Q. Do you support terrorist violence? 7 A. No, because it's basically anarchistic. It is not directed 8 against institutions or -- it is directed against civilians and 9 therefore it cannot be excused. Those are not legitimate 10 targets. 11 But this is my personal view, once again. 12 Q. Ms. Stewart, directing your attention to the period 1999 13 through 2000, did you believe that there was a conspiracy that 14 involved Mr. Sattar, this fellow Taha and others, to kill or 15 kidnap people in a foreign country? 16 A. No, I did not. 17 Q. And, directing your attention to that time, did you want to 18 make your client, Sheikh Omar Abdel Rahman, available to any 19 conspiracy to kill or kidnap people? 20 A. Absolutely not. 21 Q. Ms. Stewart, have you read the indictment? 22 A. I have. 23 Q. What do you say? 24 MR. DEMBER: Objection, your Honor. Vague. 25 THE COURT: I'm sorry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7969 4B35SAT4 Stewart - direct 1 MR. DEMBER: Vagueness, your Honor. What did she say. 2 THE COURT: Sustained as to form. 3 Q. Ms. Stewart, are you guilty or not guilty? 4 A. Emphatically not guilty. 5 MR. TIGAR: No further questions. 6 MR. DEMBER: May I have a moment, your Honor? 7 THE COURT: Yes. 8 MR. DEMBER: Your Honor, may I proceed? 9 THE COURT: Yes, Mr. Dember. You may proceed. 10 DIRECT EXAMINATION 11 BY MR. DEMBER: 12 Q. Good morning, Ms. Stewart. 13 A. Good morning, Mr. Dember. 14 Q. Ms. Stewart, you have been an attorney now for 15 approximately 30 years, is that correct? 16 A. Approximately, yes. 17 Q. As you told us during your direct testimony, you consider 18 yourself a good lawyer, do you not? 19 A. Yes. 20 Q. And I think you've told us in your testimony that others in 21 your community have led you to believe that are you a good 22 lawyer as well, apart from your own view of yourself, is that 23 correct? 24 A. I have some warts but, yes, basically that's true. 25 Q. Is it also fair to say, certainly for most of your career SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7970 4B35SAT4 Stewart - cross 1 you would be what we consider, like many of us here, a 2 courtroom lawyer, a litigator? Is that right? 3 A. Yes. 4 Q. And you have practiced in federal courts and state courts 5 of this country as well, is that correct? 6 A. That's right. 7 Q. And you have argued cases in those courts and defended 8 clients in those courts, is that correct? 9 A. I have. 10 Q. By the way, what percentage -- over the last, let's say 11 seven years or so of your practice, what percentage of your 12 practice was representing people in federal court versus state 13 court? Particularly your criminal defense work. 14 A. I would say it was pretty evenly divided maybe 60/40 -- 60 15 percent being state court, 40 percent being federal. 16 Q. And when you say state court, is most of your work done 17 here in the State of New York? 18 A. Yes. 19 Q. And particularly in the City of New York? 20 A. Yes. 21 Also, I do also practice in New Jersey however, but 22 that is a minor part of the practice. 23 Q. I think you indicated you're licensed to practice in New 24 Jersey as well as New York? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7971 4B35SAT4 Stewart - cross 1 Q. And obviously in the federal courts as well? 2 A. Yes. 3 Q. Any other states? 4 A. I'm admitted in some federal places like the Western 5 District of Texas and Middle District of Florida but I wouldn't 6 say I practiced there. I have appeared in cases there. 7 Q. Now, Ms. Stewart, would you agree with the proposition that 8 it is the job of a lawyer, like yourself, or any lawyer, where 9 appropriate, in representing a client to challenge the laws, 10 rules, restrictions, regulations that might be imposed upon a 11 client? 12 A. Well, I think it depends what you mean by challenge. I'm 13 not sure exactly what you mean by that but I think that in 14 assessing a case when a lawyer first takes on a case, one looks 15 at the law under which the client is charged and, if 16 appropriate, challenges the law itself or raises issues with 17 regard to that law. 18 Q. Well, I'm speaking more in terms of making legal 19 challenges. In other words, if you have a client who you 20 believe is under restrictions or regulations you believe to be 21 inappropriate or improper under the law, do you believe it is 22 your responsibility as a lawyer in representing those clients 23 to challenge those laws or rules? 24 A. It's a decision that's made with the client and I think 25 it's also made based upon the conditions as they exist at that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7972 4B35SAT4 Stewart - cross 1 time. It's not just a straight out I think it is wrong and 2 let's trot into court. It has a lot of things to be 3 considered. Finances, everything has to be considered in 4 making that kind of a decision. 5 Q. By the way, when you say finances you mean if a client 6 can't pay your fee you may not go to court and make certain 7 legal challenges that you might make if in fact he can pay your 8 fee? 9 A. I don't think it's fee so much as it is all the small 10 things that you need to bring a lawsuit, especially conditions 11 or a lawsuit that challenges a law. 12 It is very hard to be, in this day and age, a 13 one-woman band if you will. By that I mean there are law 14 students for research, there is -- there may be experts that 15 need to be called. 16 There is just a host of expenses. And it's one thing 17 to say I'll do this as a lawyer for free and I've said that 18 many times. It is another thing to say I will take money out 19 of my pocket to pay the doctor to come in to evaluate these 20 medical records. 21 Q. So, would it be fair to say that you don't believe you're 22 ethically obligated to necessarily file the challenge to a rule 23 or regulation that you find fault with if a client essentially 24 can't pay and you can't afford not to go ahead and to file such 25 a lawsuit or make such a challenge legally? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7973 4B35SAT4 Stewart - cross 1 A. I don't think you're ethically obligated if you cannot 2 present the client's case in an effective and reasonable way. 3 I probably do more pro bono work than almost any 4 lawyer in the city where it can be done effectively. I not 5 only volunteer myself but my whole staff, as a fact. Where it 6 can't be done effectively, in other words where it requires 7 investigation or it would require staying in a foreign city -- 8 when I say foreign I don't mean foreign-foreign, I mean like 9 another state, travel. All of those things. 10 If it can't be done effectively then ethically I don't 11 think you're obligated to bring such a case. And, indeed, the 12 rules of ethics may militate against it. You are not supposed 13 to bring cases to lose them. 14 Q. Well, certainly if you thought you had a winning case and 15 you had a client who is perhaps prejudiced by restrictions or 16 regulations placed upon the client and you thought you had a 17 winning case, would you bring it even if you were not getting 18 paid? 19 A. I guess I'm not sure it would be a winning case. 20 Q. In your mind. A winning case in your mind. 21 A. In my mind. It might not be a winning case if it can't be 22 done effectively. 23 As I said, it is not about my fee as much as it is 24 about whether or not the case can be presented in a court of 25 law so as to be seen in all its various facets effectively. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7974 4B35SAT4 Stewart - cross 1 We're not allowed to ineffectively assist our clients. 2 Q. Ms. Stewart, in terms of representing a client though, in 3 representing a client do you not believe it's your obligation, 4 your duty to raise defenses for a client that you would think 5 would be successful? Which you believe would be successful? 6 A. Are we talking about defenses such as during a criminal 7 trial? 8 Q. During a criminal trial, sure. 9 A. Yes, definitely. Absolutely you raise every defense that 10 you think was grounded in the facts and the law that you can 11 raise. 12 Q. And that includes not just a defense in front of a jury but 13 legal defenses, challenges to statutes, for example? 14 A. Yes. 15 Q. Now, let me, instead of talking in generalities let's talk 16 a little bit about our case here, okay? 17 Ms. Stewart, your client, Mr. Abdel Rahman, which I 18 think you've testified, was housed for a period of time at the 19 federal medical center in Rochester, Minnesota, is that right? 20 A. That's right. 21 Q. And I believe you told us that you made three separate 22 visits to him when he was there, is that right? 23 A. I think it may have been more than that but I will agree to 24 three. I think there were four, actually. 25 Q. And do you recall -- do you recall that he was housed there SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7975 4B35SAT4 Stewart - cross 1 starting in 1998? Is that about your recollection? 2 A. I actually thought it was '97 but you may be right. The 3 years are sort of telescoping for me here. 4 Q. And, do you recall he was there into 2002? The year 2002? 5 A. Yes. 6 Q. Which is, roughly, a four-year period; is that right? 7 A. Yes. I think he may have only been there 2001. I think he 8 got moved after 9/11 but, as I said, I'm not positive of that 9 either. 10 Q. During that entire time he was under the Special 11 Administrative Measures, the SAMs that we have been talking 12 about throughout this trial, is that right? 13 A. He was. 14 Q. In fact, since April of 1997 and up until certainly the 15 time that you stopped representing him, he was always under 16 Special Administrative Measures, was he not? 17 A. He was. 18 Q. And at various times those various measures were changed a 19 bit. In other words, there might be new conditions, conditions 20 or parts of the SAMs, the measures might be amended slightly, 21 changed, added, that sort of thing. Is that correct? 22 A. There was some minor changes, yes. 23 Q. Is it fair to say during that four-year period when Abdel 24 Rahman was in the Rochester facility, you never filed any legal 25 challenges in court to the regulation that we have talked about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7976 4B35SAT4 Stewart - cross 1 that helped create the Special Administrative Measures? Is 2 that right? 3 A. That is correct. 4 I'm not sure if the suit that Mr. Clark brought in 5 Springfield contained a challenge but, as we know, that was 6 abandoned when he was moved to Rochester. 7 Q. Also, you never, during that four-year period when Abdel 8 Rahman was housed in Rochester, you never filed any kind of 9 legal challenge to the validity of the Special Administrative 10 Measures, is that correct? 11 A. That's correct. I think you and I both heard that 12 discussion on the tapes about how the time wasn't right and 13 perhaps we were waiting for retainer so that we could indeed 14 put together a team that could handle a conditions lawsuit of 15 this magnitude. 16 Q. And you never, during the time that Abdel Rahman was housed 17 at the Rochester facility, ever filed a legal challenge to the 18 requirement that you personally had to sign an attorney 19 affirmation promising that you would abide by each and every 20 provision of the Special Administrative Measures, did you? 21 A. No, I never did. 22 Q. And I think you told us in your testimony that you never 23 filed a lawsuit challenging the conditions of Abdel Rahman's -- 24 the conditions of confinement under which he lived at the 25 federal medical center in Rochester, did you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7977 4B35SAT4 Stewart - cross 1 A. No, I never did. 2 Q. But much of what we heard through the tapes, as you've 3 testified to last week, you frequently talked to various people 4 about the fact that you were going to file such a suit, is that 5 right? 6 A. That is right. 7 Q. You talked to your client about it and you told him you 8 were going to do that? Is that right? 9 You talked to Warden Reese, who was one of the wardens 10 who was at Rochester during part of the time, a warden for part 11 of the time your client was at the facility as well, is that 12 right? 13 A. That's right. 14 Q. And you mentioned to her when you talked to her that you 15 were also going to be filing a lawsuit, is that correct? 16 A. That we were prepared to file, yes. 17 Q. And, in fact, at various times you sent correspondence to 18 the warden at Rochester indicating that you needed to have a 19 visit with your client and one of the main reasons being that 20 you had to prepare to file this lawsuit challenging his 21 conditions of confinement at that facility. 22 Is that right? 23 A. It was always on our to-do list. Unfortunately, it never 24 happened. 25 The reasons, as I explained to you a little earlier, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7978 4B35SAT4 Stewart - cross 1 were the time, place and condition did not warrant our being 2 able to do it. I wish we had. 3 Q. Now, I think you told us, by the way, that there were 4 certain kinds of forms that a lawyer or inmate would need to 5 file before actually instituting a lawsuit challenging the 6 conditions of confinement, is that right? 7 A. That's right. 8 Q. And you refer to those as BP-9s, is that right? 9 A. Yes. 10 Q. That's a Bureau of Prisons, a Federal Bureau of Prisons 11 form, is that right? 12 A. That is the form that inmates use to detail their complaint 13 and ask for relief from the prison itself; yes. 14 Q. And there is actually a procedure involved once that form 15 is filled out, is that correct? 16 A. Yes. 17 Q. The inmate or somebody on his behalf would complete such a 18 form and serve it or file it on the institution itself, the 19 prison itself; is that right? 20 A. My experience with BP-9s has been that they're done 21 internally. It means that the inmate who is your client fills 22 out this complaint. I don't believe counsel even appears or 23 has anything to do with the resolution of the complaint on 24 either the initial level in the jail or the secondary level, 25 which is still within the Bureau of Prisons. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7979 4B35SAT4 Stewart - cross 1 But it's basically filled out, it's a form that's 2 filled out in which a person details the complaint that they're 3 having whether it's mail or whatever it may be. 4 Q. And it's resolved within the facility itself at first, is 5 that right? 6 A. I believe it first goes to the local facility. Facility 7 in-house, yes. 8 Q. And is it not your understanding that if a facility 9 essentially decides against the inmate, there is an appellate 10 process within the Bureau of Prisons, the inmate can appeal the 11 decision made at the individual prison, is that right? 12 A. Yes. 13 Q. And there is a multi-step process or appellate level 14 so-to-speak so that an inmate can appeal not only to an 15 immediate authority but even a higher authority as well, is 16 that right? 17 A. Yes. It doesn't always work as neatly as we laid out here, 18 but in large time-consuming gaps and loss of papers it's a 19 fairly -- I don't want to say sloppy but it's -- it's not the 20 best regulated system. Let's put it that way. 21 Q. In any event, you've told us that in order to file a 22 lawsuit in federal court challenging Rahman's conditions of 23 confinement you would be first required to go through that 24 procedure, is that right? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7980 4B35SAT4 Stewart - cross 1 Q. That's what we call exhausting administrative remedies? 2 A. Yes; giving the Bureau of Prisons a chance to change the 3 conditions that are complained of before we trouble the courts. 4 Q. So, before you could ever go to court you first have to 5 take those steps? 6 A. Yes. 7 Q. Now, an inmate who may not even be interested in filing a 8 civil lawsuit and going all the way to court still could use 9 these BP-9 forms to try to change his or her conditions of 10 confinement, is that right? 11 A. An inmate who is sighted and speaks English, yes, they 12 could do it themselves. 13 Q. In other words, you don't have to fill out those forms and 14 then automatically be required to file a lawsuit, is that 15 right? 16 A. No, you are not required to file a lawsuit. 17 Q. If you have a complaint you can take it to the Bureau of 18 Prisons, take it through the steps that we just talked about 19 briefly, and try to get those conditions changed internally, is 20 that right? 21 A. Yes. 22 Q. There is no requirement that you then, if you don't 23 succeed, file a lawsuit, right? 24 A. That's true. 25 Q. Now, obviously Mr. Rahman is blind, doesn't speak English SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7981 4B35SAT4 Stewart - cross 1 particularly well or very much at all, is that right? 2 A. That's right. 3 Q. Certainly you were aware of the process, is that correct? 4 This particular process? 5 A. Yes. We had gone through the process actually at 6 Springfield. 7 Q. At Springfield. 8 My question then -- and that's prior to filing the 9 lawsuit in Springfield, is that correct? 10 A. That is correct. 11 Q. You actually never went through the process at Rochester, 12 did you? 13 A. No. 14 Q. You never filled out the forms on behalf of your client and 15 submitted them to the Bureau of Prisons to try to at least 16 internally get some of those conditions changed, did you? 17 A. No. I think we were not overly pessimistic but the reality 18 of the situation was that those regulations came from your 19 office here in New York from Pat Fitzgerald and Rochester was 20 not about to change them. I mean, we had asked for certain 21 changes, even the time of calls, the place of calls, and we 22 never got any concession whatsoever just requesting it from the 23 prison. 24 I'm not talking about the formal procedure. You're 25 right, we never did the formal procedure. But talking about SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7982 4B35SAT4 Stewart - cross 1 making a phone call and saying could we do this instead of that 2 having a phone call in the afternoon instead of the morning, we 3 were never able to get any concession from the prison 4 officials. 5 Q. Well, Ms. Stewart, your complaints about Mr. Rahman's 6 conditions were not just limited to the restrictions placed in 7 the Special Administrative Measures, were they? You had other 8 complaints beyond those restrictions, didn't you? 9 A. Yes. But I think most of them occurred because of the 10 tremendous isolation in which he was held and that, of course, 11 was part and parcel of the SAMs. 12 So, a removal from prison population, his inability to 13 attend religious services, all of that stemmed from the 14 underlying reasons why the government thought the SAMs were 15 appropriate. 16 Q. By the way, you just mentioned just a moment ago, I think, 17 that the SAMs, the Special Administrative Measures came from 18 Pat Fitzgerald, did you not? 19 A. Yes. 20 Q. He didn't authorize those Special Administrative Measures, 21 did he? 22 A. I was under the impression that he played a large role in 23 authorizing them, yes. 24 Q. Well, isn't it a fact that the attorney general of the 25 United States, Janet Reno, was the one who authorized the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7983 4B35SAT4 Stewart - cross 1 imposition of Special Administrative Measures on your client? 2 A. Yes. My understanding was that she signed off on it but 3 that actually it was at his request and at his urging that she 4 did so. 5 Q. She was the, at the time, the attorney general of the 6 United States, was she not? 7 A. Yes. 8 Q. She was the highest ranking legal officer in the federal 9 government at the time, is that not right? 10 A. Yes. 11 Q. She doesn't work in the United States Attorney's office in 12 the Southern District of New York, does she? 13 A. No. 14 Q. No. 15 She is in Washington, is that right? 16 A. That's right. 17 Q. And is it fair to say, or fair to assume, that there were 18 others under her in the Department of Justice in Washington who 19 actually reviewed these Special Administrative Measures and 20 approved them? It wasn't merely herself, she had advice from 21 counsel in Washington, wouldn't you believe that? 22 A. I couldn't answer that question. 23 I know that the head of the Bureau of Prisons, 24 Kathleen Hawk, had some input into it. I don't know whether I 25 learned that until when this case was actually brought. But I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7984 4B35SAT4 Stewart - cross 1 don't know whether Janet Reno consulted with counsel or not. 2 Q. You mentioned Ms. Hawk, let's talk about her for a minute 3 because you say she had some input. 4 She was the director of the Bureau of Prisons at the 5 time these SAMs were put in place against your client and 6 during most of the times he was under the SAMs or has been 7 under the SAMs, is that correct? 8 A. I believe so. 9 Q. She is the director of the Federal Bureau of Prisons, 10 correct? 11 A. That's correct. 12 Q. And she's headquartered in Washington, D.C., is that right? 13 A. That's right. 14 Q. She didn't work in the U.S. Attorney's office for the 15 Southern District of New York, did she? 16 A. No. 17 Q. In fact, you mentioned Pat Fitzgerald. Pat Fitzgerald, to 18 your knowledge, was an assistant United States Attorney, was he 19 not? 20 A. He was. 21 Q. And you are familiar with the U.S. Attorney's office over 22 the years. You dealt with the U.S. Attorney's office in the 23 Southern District of New York, haven't you? 24 A. I have. 25 Q. And it is a, an office, perhaps like other government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7985 4B35SAT4 Stewart - cross 1 offices with layers of superiors and bosses, is that correct? 2 A. I never worked there but I will take your word for it. 3 Q. Well, Ms. Stewart, you certainly handled many cases with 4 our office, did you not? 5 A. Yes. 6 Q. And you knew that there is, the office consists of two 7 different divisions, a criminal division and a civil division? 8 A. Yes. 9 Q. And you knew, did you not, that there was a chief of the 10 criminal division? 11 A. Yes, I guess so. I'm not sure how he fits in or she fits 12 in but there is a chief. 13 Q. You certainly knew that the top person, the essential boss 14 of the United States Attorney's office and of any United States 15 Attorney's office in the country is the assigned United States 16 Attorney for that district, is that correct? 17 A. Yes. 18 Q. And you certainly knew during the time that Mr. Fitzgerald 19 was in the office and dealing with Special Administrative 20 Measures that he answered to, at the very least, the United 21 States Attorney, did he not? 22 A. Oh, yes. 23 Q. And you knew who that United States Attorney was, did you 24 not? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7986 4B35SAT4 Stewart - cross 1 Q. And that person's name was Mary Jo White, is that correct? 2 A. That's correct. 3 Q. And you knew that name, did you not? 4 A. I knew that name, yes. 5 Q. You knew that name very well, did you not? 6 A. I knew it well. I don't know very well. 7 Q. You were very familiar with the name? 8 A. I knew the name. 9 Q. Nobody had to tell you who the United States Attorney was 10 for the Southern District of New York? 11 A. No. 12 Q. Well, did you ever call up the United States Attorney, Mary 13 Jo White, and attempt to get an audience with her to talk about 14 these Special Administrative Measures? 15 A. No, I never attempted to get an audience with Mary Jo 16 White. 17 Q. Did you ever write to Ms. White and essentially complain or 18 set out your position with respect to the Special 19 Administrative Measures? 20 A. No, I never did. 21 Q. Did you ever write to Janet Reno or call, try to call Janet 22 Reno to talk to her about these restrictions that had been 23 placed on your client? 24 A. No, I never did. I'm not sure about Mr. Clark but I know I 25 never did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7987 4B35SAT4 Stewart - cross 1 Q. I'm asking you. 2 A. No, I never did. 3 Q. Well, did you ever call Ms. Hawk at the Bureau of Prisons 4 and talk to her about these Special Administrative Measures? 5 A. No, I never did. 6 Q. By the way, at the time that the Special Administrative 7 Measures were put in place, besides having the title of the 8 Assistant United States Attorney, did you know what other 9 position Mr. Fitzgerald had in the office at that time? 10 A. That would be 1997? 11 Q. 1997, 1998. During the period of time he was at Rochester. 12 A. I knew he was at some point the head of the terrorism unit 13 in the office however it had a longer name than that. I'm not 14 sure but I knew that he was -- he was the top person in that 15 office. 16 Q. That was at some point in time? 17 A. Yes. 18 Q. That wasn't when the Special Administrative Measures first 19 came into being, was it? 20 A. It may have been. I'm not really certain that I followed 21 his career that closely. 22 Q. Now, let's change topics, shall we? Let's talk about your 23 client's trial. 24 I believe you told us last week that before you came 25 into the case to represent Abdel Rahman he originally had two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7988 4B35SAT4 Stewart - cross 1 lawyers representing him, is that correct; Mr. Kuby and 2 Mr. Kunstler? Or one of them? 3 A. That's right. I believe it was both of them. 4 Q. Okay. 5 And at some point in time, for legal reasons, they had 6 to be relieved from the case, is that right? 7 A. That's correct. 8 Q. And you told us after that that Abdel Rahman was 9 represented -- represented himself -- what we call pro se -- is 10 that right? 11 A. Yes. I understood that was Mr. Kunstler's recommendation 12 to him. 13 Q. Well, did you understand that in fact the Court had 14 assigned him a lawyer to represent him after Mr. Kunstler and 15 Mr. Kuby were removed or relieved? 16 A. I know he had a legal advisor. I don't know whether that 17 legal advisor had originally been appointed to represent him 18 completely as an attorney as opposed to an advisor. Of course, 19 pro se would be he would be doing the representation, Sheikh 20 Omar Rahman, but I knew an attorney had been provided to him. 21 I'm not sure whether the exact representation was ever in 22 question. 23 Q. You are telling us though that these two lawyers, Mr. Kuby 24 and Mr. Kunstler, had advised the person that became your 25 client who was blind, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7989 4B35SAT4 Stewart - cross 1 A. Yes. 2 Q. He was blind; he certainly had difficulty with the English 3 language didn't speak much at all, correct? 4 A. Yes. 5 Q. Those two lawyers recommended to your client, or the man 6 who became your client, that he should walk into an American 7 courtroom and represent himself even though he is blind and 8 doesn't really speak English, is that what you are telling us? 9 A. Yes. 10 It actually was Mr. Kuntsler's view that the voice of 11 the defendant himself was an important thing to interject into 12 a trial of this nature; that the actual voice of a defendant 13 should be -- in many of his cases there was a pro se 14 representation. 15 Q. Even though the voice didn't speak English? 16 A. Even so, that was still his thought. 17 Q. Now, I believe you mentioned to us during your testimony 18 that there were a number of people who became or were actually 19 when you came into the case, paralegals, assisting in Abdel 20 Rahman's defense, is that right? 21 A. No, actually I -- it is -- I'm sorry, I misunderstood you. 22 Q. And one of those people was Mr. Sattar, is that correct? 23 A. That's correct. 24 Q. And initially one of those people was Nasser Ahmed, another 25 person mentioned? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7990 4B35SAT4 Stewart - cross 1 A. Yes. 2 Q. And another person was a fellow named Mohammed Nabil 3 Elmasry? 4 A. Yes. 5 Q. And there may have been others as well, is that correct? 6 A. There were others. I'm not able to recall their names. I 7 probably could dig it out somewhere. 8 Q. Those are the three names you are very familiar with? 9 A. Yes. 10 Q. You certainly know they were part of the paralegal team, is 11 that right? 12 A. That's right. 13 Q. By the way, were they paralegals for only Abdel Rahman or 14 were they also serving as paralegals for other defendants in 15 the case? 16 A. I think they were only for Dr. Abdel Rahman. I don't think 17 they worked for any other client. Mr. Elmasry may have. I 18 don't really remember that. 19 Q. When you came into the case, obviously you met those three 20 gentlemen, came to know them and work with them, correct? 21 A. Yes. 22 Q. And I believe you told us that from what information you 23 had that Judge Mukasey, who was the trial judge and presided 24 over your case representing Abdel Rahman, had appointed those 25 three persons to be paralegals, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7991 4B35SAT4 Stewart - cross 1 A. That is correct. 2 Q. He didn't actually choose them, is that correct? 3 A. No, he didn't choose them but he did appoint them. 4 Q. They were people who were known to Abdel Rahman before he 5 was arrested, is that right? 6 A. That's right. 7 Q. They were supporters of Abdel Rahman, is that right? 8 A. They were certainly people who were involved in the 9 congregations to which he preached. Supporters, I'm not sure 10 of. But they certainly were people that were close to him 11 before he was arrested. 12 Q. Followers of his? 13 A. I really can't speak to following. 14 Q. But they were people who essentially came -- as far as your 15 understanding was, these are people who came in order 16 essentially wanting to help and Judge Mukasey ratified the fact 17 that they could be, that they could work as paralegals and 18 essentially be paid for doing it? 19 A. Yes, that's right. 20 Q. And they were in fact paid by the government to be 21 paralegals in the case? 22 A. That's correct. 23 Q. And the reason for that was of course that Abdel Rahman 24 couldn't afford to pay for his own paralegals so the Court 25 appointed them and that authorized them to receive funds for SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7992 4B35SAT4 Stewart - cross 1 their work, is that right? 2 A. I think the CJ Act is a little more complicated than that 3 but, essentially, given the size of the case and the amount of 4 the work confronting anyone who was going to be part of this 5 case, the Judge did approve the payment to the paralegals and 6 to investigators and to translators and to all manner of people 7 that were called upon to aid us. Experts. 8 Q. Now, to your knowledge, were any of those three people we 9 mentioned -- Nasser -- Mr. Ahmed, Mr. Sattar, Mr. Elmasry, were 10 these people who had been trained paralegals? In other words, 11 people who had some kind of education or training as 12 paralegals? 13 A. No. 14 The main qualification was they were -- they spoke in 15 English and Arabic and they were familiar with Egyptian culture 16 and politics, I think. Those were their main qualifications. 17 Q. I mean their professions were not paralegals, is that 18 right? 19 A. That's correct. 20 Q. I mean, Mr. Sattar worked for the U.S. Postal Service at 21 the time, did he not? 22 A. That's right. That's right. 23 Q. And the other two gentlemen, Mr. Elmasry and Mr. Ahmed, 24 they had other jobs, is that correct? 25 A. Yes. Nasser Ahmed was an engineer and Mr. Elmasry, I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7993 4B35SAT4 Stewart - cross 1 think, was in computers in some capacity. 2 Q. Now, I believe you told us that at some point either in the 3 preparation or during the trial, Mr. Yousry came into the case, 4 is that correct? 5 A. Yes. 6 Q. As a translator or interpreter, is that right? 7 A. That's right. 8 Q. He not only translated documents or recordings for you in 9 helping with your defense, he would also occasionally go with 10 you into places like the MCC or wherever, Mr. Abdel Rahman, and 11 interpret for you when you had conversations with him? 12 A. My recollection was that he worked for my translation. 13 I called them because I wanted someone to come into 14 the prison with me to translate and he was the person that was 15 available and could do it and was approved by the MCC for this 16 kind of visitation. 17 And so he came in at that point solely to be the 18 interpreter. 19 Q. Is it fair to say you didn't know Mr. Sattar or Mr. Yousry 20 before you were involved in that case? 21 A. I did not know them. 22 Q. That's how you got to know them and meet them for the first 23 time? 24 A. That's correct. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7994 4b3esat2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Did you eventually become friendly with them? 3 A. I'm sorry, I didn't hear you. 4 Q. Did you eventually become friendly with them? 5 A. Yes. 6 Q. Did you consider them your friends? 7 A. I did. 8 Q. And you still do? 9 A. And I still do. 10 Q. Now, let's talk a little about the trial itself. I think 11 you told us it lasted from jury selection through verdict 12 approximately ten months, is that right? 13 A. That's correct. 14 Q. And it was a trial that was conducted before a jury, right? 15 A. That's correct. 16 Q. So there were jurors who sat through and listened to the 17 presentation of evidence for a little less than ten months, is 18 that right? 19 A. That's right. 20 Q. And those jurors were present every day when evidence was 21 presented, were they not? 22 A. They were. 23 Q. And they took notes like jurors usually do? 24 A. Yes, they did. 25 Q. They listened to the witnesses, as best you could tell? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7995 4b3esat2 Stewart - cross 1 A. They did. 2 Q. They reviewed the exhibits that were introduced, as best as 3 you could tell? 4 A. They did. 5 Q. And you told us, and actually read for us, your opening 6 statement in that trial, is that correct? 7 A. That's right. 8 Q. And, of course, Mr. Tigar read most of the opening 9 statement given by the government in that case, is that 10 correct? 11 A. That's correct. 12 Q. And you told us there were about nine or ten other 13 defendants, depending on what time it was in the trial, and 14 those lawyers also gave their opening statements to that jury? 15 A. Yes, they did. 16 Q. Now, by the way, you were asked by Mr. Tigar at some point, 17 I believe it was after you had read -- gave us your 18 presentation of your opening during the trial, whether in your 19 opening statement you were expressing your personal beliefs 20 when you argued on behalf of Abdel Rahman. Do you recall that? 21 A. I don't recall that particular question but -- do you have 22 the question there, by any chance? 23 Q. Let me move on and ask you the next question. This may 24 help. 25 You were asked a question as to whether or not you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7996 4b3esat2 Stewart - cross 1 would be permitted to be stating your personal opinion. Do you 2 recall that now? 3 A. Yes. That, I do remember. 4 Q. And you told the jury that the evidence rules don't permit 5 you to state your personal views about guilt or innocence in 6 the form of an opening statement to a jury, is that right? 7 A. That's correct. 8 Q. In fact, you can't do that when you summed up, gave your 9 summation in that trial or any trial; you can't do that either, 10 is that right? 11 A. That's correct. 12 Q. You can't say to a jury, here's what I personally believe 13 about this case. Of course, there's no rule, no law that 14 prevents you from, in fact, believing in whatever you're saying 15 to a jury, whether it be in an opening statement or in a 16 summation, is that right? 17 A. I'm not sure I understand your question completely. 18 Q. Well -- 19 A. Believing in what sense? That the evidence has -- 20 Q. Believing in the sense that you -- it happens to be 21 consistent with your personal view. 22 A. Well, if you mean that there is evidence in a case, you 23 evaluate the evidence, you are an adversary so, therefore, you 24 advocate for your view of the evidence and what it proves. But 25 I don't think it means ever substituting somehow I believe or I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7997 4b3esat2 Stewart - cross 1 think or I'm looking at this and I see such-and-such. I mean, 2 you advocate that the evidence proves certain material facts or 3 it doesn't prove, or I think in that case I particularly spoke 4 a lot about the lack of evidence in the case. 5 Q. That was a big part of your defense, is that right? 6 A. Yes, exactly. So, of course, I'm a person, I'm handling a 7 case. I'm a lawyer, but my personal views I do not interject 8 into that case or any other. But if you're saying there's no 9 bar to having a personal point of view, that's, of course, 10 true. We're all human beings. 11 Q. Of course, you're representing a client. You don't 12 necessarily have to agree with a client's view of issues, the 13 nature of the evidence in the case, to actually represent 14 somebody, is that right? 15 A. That's absolutely true. 16 Q. You may disagree with a client. And as long as you're 17 representing them and doing a good job, best you can do under 18 the rules of ethics, there's no bar to a lawyer representing 19 such a client? 20 A. No, not at all. As a matter of fact, we're urged to be one 21 step removed and view the evidence in a dispassionate way. 22 Q. Now, after the openings were given in that case, obviously 23 the burden shifted to the government -- or started with the 24 government, which always has the burden in that case as in all 25 criminal cases -- and they presented a lot of evidence, didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7998 4b3esat2 Stewart - cross 1 they? 2 A. They did. 3 Q. They presented about 135 witnesses, didn't they? 4 A. Yes, but of course there were 11 defendants. 5 Q. And is it fair to say that they introduced hundreds of 6 exhibits? 7 A. Yes. 8 Q. And included in those exhibits were recordings, 9 conversations that your client engaged in with other people? 10 A. That is true. 11 Q. And there were recordings of other defendants as well, 12 correct? 13 A. That's true. 14 Q. There were recordings that were -- contained sermons and 15 speeches given by your client? 16 A. That's correct. 17 Q. Those were introduced as well? 18 A. That's right. 19 Q. They were introduced actually the same way we introduced 20 some of those very same speeches and sermons here; they were 21 read to a jury, the ones that weren't in Arabic, is that right? 22 A. That's right. 23 Q. In fact, we introduced a number of those speeches and 24 sermons earlier in this case way back in June or so, is that 25 right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 7999 4b3esat2 Stewart - cross 1 A. You did, yes. 2 Q. And we introduced some of those intercepted recorded 3 conversations that your client participated in, is that 4 correct? 5 A. You mean in this case we introduced them? 6 Q. Yes. Do you recall? 7 A. Yes. 8 Q. By the way, you said in your direct testimony that Abdel 9 Rahman's trial or his case wasn't a wiretap case per se, or as 10 such, is that right? 11 A. That's right. 12 Q. Do you remember saying that? 13 A. Yes. 14 Q. Well, of course, there were wiretap evidence -- there was 15 wiretap evidence introduced in that case, was there not? 16 A. There was. 17 Q. There was a wiretap on your client's phone, was there not? 18 A. There was. 19 Q. And we introduced some of those calls earlier in this case, 20 did we not? 21 A. Yes. Unfortunately, the time for challenging those calls 22 legally, which were recorded, as you know, under the Foreign 23 Intelligence Surveillance Act, had passed by the time I -- and 24 they were never challenged legally with the judge by Mr. Rahman 25 acting as his own -- Abdel Rahman acting as his own counsel or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8000 4b3esat2 Stewart - cross 1 by the attorney who was appointed to advise him. So -- 2 Q. Or by Mr. Kunstler or Mr. Kuby? 3 A. Or Mr. Kunstler or Mr. Kuby. They were sort of out of the 4 case very early on. But in the months and years that 5 intervened, there was no legal challenge ever mounted on behalf 6 Sheikh Omar Abdel Rahman to those particular tapings under the 7 wiretap order. 8 Q. Now, during the government's presentation of evidence, you 9 did what you normally do during the presentation of the 10 government's evidence; you did what you typically do, which is 11 you challenged that evidence, did you not? 12 A. Yes. 13 Q. You cross-examined witnesses? 14 A. Yes. 15 Q. You tried to demonstrate to the jury that the witnesses 16 were not believable or not to credit their testimony? 17 A. Yes. 18 Q. You challenged the meaning of speeches given by Abdel 19 Rahman? 20 A. I did challenge that, yes. 21 Q. You did your job, putting the government to its burden, 22 challenging its evidence, is that right? 23 A. Yes. 24 Q. I'm sorry. And you did that throughout the case, did you 25 not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8001 4b3esat2 Stewart - cross 1 A. I did. The thing we couldn't challenge was the insinuation 2 of fear that the government also put into the case. 3 MR. DEMBER: Objection, your Honor. 4 THE COURT: Overruled. 5 Q. You got a chance to put your defense on at some point, 6 right, after the government rested? 7 A. Yes. 8 Q. Now, you told us during your testimony that you weren't 9 allowed to put your defense on, didn't you say that? 10 A. I did. 11 Q. Well, you called 20 witnesses to the stand, did you not, 12 approximately? 13 A. We did. 14 Q. They testified on behalf of Abdel Rahman? 15 A. They testified on his behalf, yes. 16 Q. And they were part of your defense, is that right? 17 A. They were part of the defense. The other part, which we -- 18 Q. The other part you weren't permitted -- 19 MR. TIGAR: Excuse me, your Honor. 20 THE COURT: All right, yes -- the witness can finish 21 answering the question. 22 A. The other part of the defense consisted of expert -- 23 MR. DEMBER: Objection. Your Honor, this has been 24 ruled upon. I don't believe this question has opened the door 25 to what Ms. Stewart wants to say at this point. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8002 4b3esat2 Stewart - cross 1 THE COURT: All right. Ladies and gentlemen, this is 2 a good time for us to take a break. We'll break for ten 3 minutes. 4 Please remember my continuing instructions. Please, 5 don't talk about the case at all. Please always remember to 6 keep an open mind until you've heard all of the evidence, I've 7 instructed you on the law and you've gone to the jury room to 8 begin your deliberations. 9 See you shortly. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8003 4b3esat2 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: Ms. Stewart may step down. 3 Please be seated. Mr. Dember? 4 MR. DEMBER: Your Honor, what I anticipate Ms. Stewart 5 saying is she was prevented from calling experts who would 6 testify about the human rights conditions in Egypt. She was -- 7 I mean, it's obviously in the Second Circuit's decision, your 8 Honor. We have cited that Second Circuit decision a number of 9 times to your Honor. 10 She testified in her direct case she was prevented 11 from putting a defense in. That's how it was properly worded, 12 your Honor. I think I have a right to at least clarify with 13 this jury that, one, she did, in fact, put a defense in, which 14 she's testified to; and that the reason why she couldn't put 15 that defense in was simply because the judge ruled legally it 16 wasn't proper. 17 That doesn't open the door to her now explaining to 18 this jury what that defense was and who those witnesses would 19 have been and what they would have said. It's simply 20 addressing the issue she raised in her direct testimony. We 21 don't believe that opens the door to something that under -- at 22 the very least 403 should preclude, and your Honor has 23 precluded the same type of evidence in this case. 24 MR. TIGAR: Your Honor, the question was: Now you 25 told us during your testimony that you weren't allowed to put SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8004 4b3esat2 Stewart - cross 1 your defense on, didn't you say that? 2 "A. I did. 3 "Q. Well, you called 20 witnesses to the stand, did 4 you not, approximately?" 5 Now, that was the setup on this situation. 6 Ms. Stewart does not intend to use her answer to make a talk 7 about human rights in Egypt. She intends to say, well, she had 8 some witnesses the judge didn't call. She'd be happy to get on 9 the stand or stand here and tell your Honor what her answer 10 would have been in the form of an offer of proof. So that was 11 the reason that I thought she should be able to conclude her 12 answer, was that question called for it. 13 Now, I also want to raise, your Honor -- because I'm 14 not sure where this was going and I wouldn't want to interrupt 15 the jurors -- if the end-point of this line of inquiry is, 16 well, after all of that the jury convicted your client, didn't 17 they -- they took notes, they were here every day, your Honor's 18 heard the examination -- then at that point we would ask the 19 Court to repeat the instruction, which is an appropriate 20 mid-trial instruction, given at page 2311 of the transcript, 21 that the fact of conviction is no evidence of the guilt of 22 Abdel Rahman. 23 As I say, I don't know if the examination is going 24 there, but if it does, we will renew that application. 25 THE COURT: All right. Mr. Dember? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8005 4b3esat2 Stewart - cross 1 MR. DEMBER: Your Honor, if Ms. Stewart is going to 2 testify that she had witnesses that were prevented -- the judge 3 did not allow to be called, then I have -- if Mr. Tigar's 4 making that representation, I don't need an offer of proof or 5 anything like that. I don't believe your Honor has to give -- 6 it's not a -- 7 THE COURT: That's fine. 8 MR. DEMBER: -- an instruction. It's what your Honor 9 took judicial notice of at -- 10 THE COURT: I'm happy, if asked, and if that's where 11 the line of questioning is going, I ask -- I would give the 12 requested judicial notice again. And the reason for that is -- 13 and you're all familiar with the history of this. The 14 defendant is there, listens to evidence, some of which has -- 15 gets introduced in this trial that's relevant to the 16 defendant's state of mind, listening to that part of evidence 17 with respect to issues which are themselves relevant to this 18 trial. 19 It's also plainly clear that what the jury did in that 20 case is -- was subject to judicial notice. And as I said at 21 the time, that was something that could not not have come out 22 in the course of the evidence that was presented by the 23 parties, what happened at that trial. And so consequently, 24 the -- rather than any stipulation or so, the parties asked me 25 to take judicial notice, which I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8006 4b3esat2 Stewart - cross 1 I also added, because it was important and it reflects 2 the Federal Rules of Evidence, that defendants are not bound by 3 what a jury does in another case. And so consequently, I put 4 that in in the judicial notice, just to -- so that the jury is 5 aware of that. And so the complete judicial notice of my 6 instructions was a complete and fair explanation to the jury 7 about how to consider the indisputed fact of what the jury did, 8 of which the parties asked me to take judicial notice. 9 And so if it appears that at some point we got here to 10 what the jury did in that case, then the parties had worked out 11 their -- what I should take judicial notice of, and I had the 12 instruction that went along with that. And so if there came a 13 point where the question was asked, which was the question 14 posited, despite hearing all of that evidence and despite 15 hearing all of your arguments, that jury nevertheless found the 16 Sheikh Omar Abdel Rahman guilty, then, if asked, I would give 17 the full judicial notice and the instruction. 18 And I also, you know, point out that is different, of 19 course, from examination with respect to the evidence itself, 20 the weight of the evidence, what one or more of the defendants 21 saw or heard or read about what actually was presented in court 22 about matters that are relevant in this case. 23 OK. I'll take a brief break. 24 (Recess) 25 THE COURT: All right. Everybody ready? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8007 4b3esat2 Stewart - cross 1 MR. DEMBER: Yes, your Honor. 2 THE COURT: Ms. Stewart can come up. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8008 4b3esat2 Stewart - cross 1 (In open court; jury present) 2 THE COURT: Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE COURT: Mr. Dember, you may proceed. 7 BY MR. DEMBER: 8 Q. Ms. Stewart, let me just backtrack for a moment. I had 9 asked you a few minutes ago about the type of evidence that the 10 government presented; witnesses, recordings, speeches, sermons, 11 is that right? 12 A. That's right. 13 Q. You remember that, right? 14 A. Yes. 15 Q. And I asked you about the telephone calls that were 16 intercepted on your client's phone, is that right? 17 A. Yes. 18 Q. And you mentioned that some of those were introduced to the 19 jury in this case? 20 A. Yes. 21 Q. That was back towards the beginning of our trial? 22 A. Yes. 23 Q. Now, during our discussion of that, you mentioned to us 24 that -- well, let me stop for a second. 25 When you came -- when did you come into the case SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8009 4b3esat2 Stewart - cross 1 itself, representing Abdel Rahman? 2 A. I believe it was early November, perhaps November 10, 1994, 3 something like that. 4 Q. OK. Had you ever come into a case that had already started 5 in representing a client? 6 A. Yes. 7 Q. And taken over for another lawyer who represented a client 8 beforehand? 9 A. Yes. 10 Q. That's kind of a common thing to do in the practice of law? 11 A. It happens, yes. 12 Q. Somebody else represents the client, and for whatever 13 reason, a new attorney comes in and the old attorney leaves the 14 case, is that right? 15 A. Yes. 16 Q. And is it normal practice when you come into a case that's 17 already started, you have to sort of rush to get up to speed as 18 to where the case is, right? 19 A. Yes. 20 Q. Because there's maybe been various legal proceedings that 21 have taken place before you entered the case? 22 A. Yes. 23 Q. Fair? And various matters had been dealt with in a case; 24 like in a criminal case, for example, prosecutors turned over 25 evidence you're entitled to get in what we call discovery? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8010 4b3esat2 Stewart - cross 1 A. Yes. 2 Q. Right? Discovery is something that happens very early 3 after somebody is charged with a crime, is that right? 4 A. Sometimes it's early, sometimes it's a little later on, 5 but, yes, it's the material that the case is made of, yes. 6 Q. And the prosecutors have to turn that over to the defense 7 so the defense can obviously prepare their defense, correct? 8 A. Yes. 9 Q. And maybe the defense wants to make some legal challenges 10 to some of that evidence, so they do that as well, right? 11 A. Yes, motion practice takes place. 12 Q. So we have to see what the evidence is before you can 13 determine whether you should make a motion or not to maybe 14 suppress that evidence, is that right? 15 A. Yes, and the paperwork usually surrounding the evidence. A 16 number of things have to be considered. 17 Q. And you have to get familiar with the facts of a case, 18 right? 19 A. I'm sorry? 20 Q. When you come into a case late or after it's started, you 21 have to get familiar with the discovery materials, right? 22 A. Yes. 23 Q. You have to get familiar with what legal proceedings have 24 taken place up until that point, correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8011 4b3esat2 Stewart - cross 1 Q. You have to get, you know, familiar with any rulings the 2 Court has made before you came into the case? 3 A. You do, yes. 4 Q. You have to be up to speed the next time -- as soon as you 5 can so you can effectively represent your client, is that 6 right? 7 A. Yes. 8 Q. And did you do that to the best of your ability when you 9 came into represent Abdel Rahman? 10 A. Yes, but as I explained earlier, there was some things that 11 had been decided that we couldn't go back to. We were told 12 that that was the record, the record would -- when I say "the 13 record," I mean that was the decisions of the Court, and they 14 had been done legally and that they would not be reopened. 15 So when I said that the tapes of his conversations 16 were now challenged, that was done -- he was representing 17 himself. He was advised in a certain way and he went with the 18 advice. I differed with that advice, but I was informed that 19 we were not going to be able to revisit that particular issue. 20 Q. So are you saying the advice was, before you came into the 21 case, do not challenge the wiretap telephone conversations? 22 A. That's correct. 23 Q. Ms. Stewart, isn't it a fact that that's absolutely untrue? 24 A. That is not untrue. 25 Q. Well, are you familiar with Judge Mukasey's decision of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8012 4b3esat2 Stewart - cross 1 August 18, 1994? 2 A. I'm not by date, I don't think. 3 Q. Well, you got familiar, when you came into the case, when 4 was it, in the fall of '94? 5 A. Yes. 6 Q. You got familiar with all of the evidence in the case as 7 best you could do, correct? 8 A. Especially, I'm sorry? 9 Q. As best as you could do, you became familiar with the 10 evidence? 11 A. Yes. 12 Q. You became familiar with all the court proceedings, is that 13 correct, as best you could? 14 A. As best I could. 15 Q. As best you could, you got familiar with all of Judge 16 Mukasey's rulings that he had made before you came into the 17 case? 18 A. That's correct. 19 Q. Are you not aware of the fact that your client, Abdel 20 Rahman, with counsel had challenged those recordings of the 21 intercepts on his telephone and, in fact, Judge Mukasey had 22 ruled that they were properly intercepted? Do you remember 23 that? 24 A. My understanding was -- I would like to see the decision, 25 if you have it here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8013 4b3esat2 Stewart - cross 1 MR. DEMBER: May I approach, your Honor? 2 THE COURT: Yes. 3 MR. DEMBER: Your Honor, this is an unmarked document. 4 I will mark it for identification purposes as Government 5 Exhibit 666. 6 THE COURT: All right. 7 BY MR. DEMBER: 8 Q. Why don't you take a look at that, Ms. Stewart. And if you 9 like to make things a little simpler, I've highlighted for you 10 a section on the second page of the document. 11 A. Yes, I've read the document. 12 Q. And that's -- are you familiar with that document? 13 A. This was the published opinion with regard to the FISA 14 intercepts, but my understanding was that the Sheikh had 15 withdrawn his opposition to the FISAs before the decision was 16 ever made. That was my understanding from his prior advisor, 17 and that the decision was made on behalf of three or four other 18 defendants in the case by Judge Mukasey. 19 Q. Judge Mukasey ruled on the challenge your client made to 20 the intercepted calls on his phone, isn't that right? In fact, 21 he didn't withdraw it. In fact, Judge Mukasey, in fact, ruled 22 on that, what you claimed had been waived and not raised, is 23 that right? 24 A. My understanding, as I said, and I can only tell you what 25 my understanding was coming into the case when I did, was that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8014 4b3esat2 Stewart - cross 1 when he appeared in court to argue the FISA intercepts, he 2 withdrew his opposition to them because he was advised by 3 counsel that would make him look guilty; it would make him act 4 as if there might be something bad on those intercepts. And so 5 he withdrew on the record. 6 Now, I don't have the record with me, but I'll tell 7 you that was my belief at the time. And I understood that the 8 other attorneys in the case did pursue the FISA, I know 9 particularly the attorney for Nosair was very adamant about it, 10 and -- but as I said -- 11 Q. Ms. Stewart -- 12 A. -- that was my understanding, that he withdrew. 13 Q. -- did you read that decision issued by Judge Mukasey in 14 August of 1994 at any point in time when you represented Abdel 15 Rahman? 16 A. Since at the time I came into the case it was already a 17 done decision, the decision had been rendered, I may have read 18 it over. I'm relying on the fact that I was informed by both 19 my client and by prior counsel that he had withdrawn. I was 20 informed by the Court that they would not revisit that issue 21 and I -- if I did read this, I can't say that it struck my 22 memory particularly. 23 Q. Ms. Stewart, did anybody tell you that Judge Mukasey -- or 24 anybody tell you he wouldn't revisit the issue because it 25 already decided it in that decision? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8015 4b3esat2 Stewart - cross 1 A. I don't think the decision may ever have been mentioned. 2 And I must say that I probably did read the decision, but my 3 understanding was that my client did not actively pursue a 4 resolution of the issue. That was my understanding, that he 5 had withdrawn. 6 Q. Your testimony before the break was there had not been a 7 challenge to that intercepted -- those intercepted calls, is 8 that right? 9 A. Oh, no, I knew there was a challenge, but I did not believe 10 it was done by the Sheikh; that his challenge was waived, in 11 effect. 12 Q. Have you looked at that decision? 13 A. Well, I hate to sit here and take a 20 minutes to read the 14 decision, but I will if you'd like. 15 Q. If you'd like, just look at the second page where I've 16 highlighted for you. Does it not indicate that, in fact, Abdel 17 Rahman made a motion to suppress that evidence and then, in 18 fact, that it was made -- obviously Judge Mukasey in that 19 decision ruled on that motion. 20 A. Yes. I am noting the date is August 18th and the 21 recitation in the initial paragraph says that the motion was 22 filed. Now before the Court are motions by Omar Ahmed Ali 23 Abdel Rahman. But it was my understanding, and it's my 24 understanding as I still sit here, that he withdrew his motion, 25 that he did not pursue it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8016 4b3esat2 Stewart - cross 1 Q. Is it your current understanding that Judge Mukasey ruled 2 on his motion? 3 A. Assumedly from this, but I still -- I have a recollection 4 of reading that part of the record where he came to court 5 representing himself. And the judge said to him, now, are you 6 withdrawing your opposition to this wiretap, to the FISA 7 wiretap, and him answering, yes, he was withdrawing his 8 opposition. That's what I remember reading, which of course 9 fit in with what I had been told earlier. 10 Q. In fact, Judge Mukasey ruled that those intercepted -- 11 those calls were properly intercepted and determined that that 12 evidence was properly -- could be placed before the jury if the 13 government at that time decided they wanted to do that, is that 14 right? 15 A. Yes. I believe -- without becoming overly technical, the 16 interceptions were of the Sheikh's telephone, as you've said, 17 so he was obviously the best person to bring this motion, if 18 there was someone to say, I'm aggrieved by the invasion of my 19 privacy. However, as I said, it is my understanding still 20 today that he withdrew from the consideration of these motions. 21 But I see what you've shown me. And if Judge Mukasey 22 in this opinion, which was published, said that he decided on 23 behalf of Abdel Rahman appearing pro se here, then this opinion 24 stands for what it stands for. 25 Q. Ms. Stewart, I think you told us -- I'm going to jump ahead SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8017 4b3esat2 Stewart - cross 1 a little bit. You told us at some point, while you didn't do 2 any writing or research associated with the appeal -- 3 MR. TIGAR: May I confer with counsel briefly, your 4 Honor. 5 THE COURT: Sure. 6 MR. DEMBER: I'll start again, your Honor. 7 Q. Ms. Stewart, when you -- I just want to jump ahead. You 8 indicated to us in your direct testimony that you didn't 9 actually write or research the appeal of that conviction, but 10 that you read through the appeal before it was filed? 11 A. Yes, that's correct. I probably a little more -- I mean, I 12 was consulted as a fact person, I guess is the best way to say 13 it. Is this what happened? And who said this? But -- and I 14 read -- certainly read through the appeal before it was 15 submitted. 16 Q. And isn't it true, because you read it before it was 17 submitted, that you and the other attorneys who submitted that 18 appeal on behalf of Abdel Rahman never challenged Judge 19 Mukasey's ruling on the admissibility of that wiretap evidence, 20 wiretap on his phone, is that correct? 21 MR. TIGAR: Objection. Relevance, your Honor. 22 THE COURT: Sustained. Can we take it up at the next 23 break. 24 Q. Ms. Stewart, let's go back for a moment to where we left 25 off before the break. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8018 4b3esat2 Stewart - cross 1 I had asked you about some testimony you gave last 2 week where you had indicated that you weren't permitted to put 3 your defense on in the Abdel Rahman case, is that correct? 4 A. Yes. 5 Q. And you had testified to that effect, is that correct? 6 A. Yes. 7 Q. And then I asked you some questions about the fact that you 8 had called 20 witnesses, is that right? 9 A. Right. 10 Q. And when you say you weren't allowed to put your defense 11 on, is that because there were some witnesses you wanted to 12 call to the stand to testify on behalf of your client and Judge 13 Mukasey ruled their testimony legally not admissible; is that 14 correct? 15 A. Yes. I think you asked me about, did I put on part of my 16 case, and that is true. It was the part of the case that went 17 to the calling of expert witnesses that Judge Mukasey ruled 18 against. 19 Q. And, in fact, you and the other lawyers representing Abdel 20 Rahman on appeal raised that issue before the Court of Appeals, 21 did you not? 22 MR. TIGAR: Objection, your Honor. Relevance. 23 THE COURT: Sustained. 24 Q. Now, by the way, the evidence that we presented in this 25 case from the Abdel Rahman case, several speeches, a few SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8019 4b3esat2 Stewart - cross 1 telephone intercepted calls or calls that were intercepted, do 2 you remember that from earlier in the case? 3 A. Yes. 4 Q. That's only a small part of the evidence that was 5 introduced against your client, is that a fair statement to 6 make? 7 A. I don't know small, whether I'd characterize it as small, 8 but it was part of the evidence. It was part, yes. 9 Q. Now, at the present -- at the conclusion of the 10 presentation of evidence, each side gave their summations as we 11 call them, is that correct? 12 A. That's correct. 13 Q. And I think you described the summations given by the 14 government as being both emotionally and factually powerful, is 15 that the phrase you used? 16 A. That's true, yes. And that's the phrase I used. 17 Q. They were given by Mr. McCarthy, Andrew McCarthy, and Pat 18 Fitzgerald, is that correct? 19 A. That's correct. 20 Q. And you gave certainly what you believed to be a 21 persuasive, powerful argument to the jury as well, did you not? 22 A. Apparently not persuasive enough, but, yes, I made the best 23 summation I could. 24 Q. And obviously you've told us, the jury eventually reached 25 its verdict, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8020 4b3esat2 Stewart - cross 1 A. That's correct. 2 Q. And you've told us a couple of times you disagreed with 3 that verdict, is that correct? 4 A. Yes. 5 Q. In fact -- 6 MR. TIGAR: Your Honor, we request the instruction. 7 THE COURT: All right. Ladies and gentlemen, you've 8 heard a reference to the verdict in the trial of Sheikh Omar 9 Abdel Rahman, and I've previously instructed you on this, but 10 just to refresh your recollection, I have taken judicial notice 11 of certain facts which I believe are not subject to reasonable 12 dispute. Specifically, that, one, Sheikh Omar Abdel Rahman was 13 convicted on January 17, 1996, of seditious conspiracy, 14 solicitation of crimes of violence, conspiracy to murder and 15 bombing conspiracy and was sentenced by Judge Michael B. 16 Mukasey of this Court to a term of life imprisonment. 17 Two, his conviction was affirmed by the United States 18 Court of Appeals for the Second Circuit on August 16, 1999. 19 And three, the Supreme Court of the United States 20 declined to review his case on November 1, 1999. 21 I have accepted these facts to be true, even though no 22 evidence has been introduced proving them to be true. 23 The facts of which I have taken judicial notice do not 24 bind you to conclude that Sheikh Abdel Rahman was, in fact, 25 guilty of those offenses. You may but are not required to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8021 4b3esat2 Stewart - cross 1 agree that the facts of which I have taken judicial notice are 2 true. The fact of conviction and the subsequent appellate 3 review is not evidence of the guilt of Sheikh Abdel Rahman, and 4 none of the defendants are bound by those determinations 5 because none of the defendants was a party in that case. 6 All right. Go ahead. 7 BY MR. DEMBER: 8 Q. Now, Ms. Stewart, as we just heard, one of the charges your 9 client was convicted of is what's called seditious conspiracy, 10 is that right? 11 A. That's right. 12 Q. And that was characterized by the government during that 13 trial as essentially the defendants, including your client, 14 waging a war of urban terrorism against the United States in 15 New York City, is that right? 16 A. That's what the government said, yes. 17 Q. And the plot that was alleged and evidence was introduced 18 about involved a plot to blow up buildings and tunnels here in 19 Manhattan, is that correct? 20 A. That was the plot that was alleged, yes. 21 Q. And the second count your client was convicted of was 22 characterized in our -- as the judge just described it as 23 solicitation of crimes of violence, crimes of violence, is that 24 right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8022 4b3esat2 Stewart - cross 1 Q. And your client was found guilty of that crime, and that 2 essentially involved his soliciting others to murder President 3 Hosni Mubarak of Egypt, is that right? 4 A. That was the government's allegation, yes. 5 Q. And also with solicitation of an attack on an American 6 military installation? 7 A. Yes. 8 Q. And the third count, which was the conspiracy to murder, 9 was a conspiracy to murder, again, President Mubarak, is that 10 right? 11 A. Yes, it was. 12 Q. And the final count was just described as a bombing 13 conspiracy, and that involved a conspiracy to blow up buildings 14 and tunnels in Manhattan that I just referred to, is that 15 right? 16 A. Yes. 17 Q. And your client was found guilty by the jury beyond 18 reasonable doubt on each of those charges, is that right? 19 A. I didn't quite catch what you said, the whole statement. 20 Q. Your client was found guilty beyond a reasonable doubt as 21 to each of those charges? 22 MR. TIGAR: Object to the question. I'd ask that it 23 be stricken. 24 THE COURT: Sustained. Stricken. 25 Ladies and gentlemen, I've given you a fairly detailed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8023 4b3esat2 Stewart - cross 1 judicial notice, and I've also given you some limiting 2 instructions about how that judicial notice is to be taken. 3 And you're to take all of that together and, of course, you're 4 required to follow my instructions. 5 OK. Go ahead. 6 BY MR. DEMBER: 7 Q. And you told us, and we heard just a moment ago, what the 8 sentence was, which was life imprisonment, correct? 9 A. Yes, plus 65 years. 10 Q. Plus 65 years. 11 By the way, do you know someone by the name of Peter 12 Waldman? 13 A. Not ringing a bell. 14 Q. OK. To the best of your knowledge, have you ever met Peter 15 Waldman? 16 A. At my advanced age, names are the first thing that 17 disappear from memory, but I don't recall it, no. 18 Q. The name doesn't ring a bell with you? 19 A. It does not ring a bell. 20 Q. Do you know somebody by the name of Frances McMorris? 21 A. That name does not ring a bell either. 22 Q. To the best of your knowledge, you've never met Frances 23 McMorris? 24 A. I couldn't say that. I've met a lot of people in my life. 25 Q. Well, you can't at this point identify a face with either SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8024 4b3esat2 Stewart - cross 1 of those two names, can you? 2 A. No, I can't. 3 MR. DEMBER: OK. Well, your Honor, may I put on 4 the -- present to the jury LS406. 5 THE COURT: All right. 6 Q. Can you see that, Ms. Stewart? That's one of your 7 exhibits, is it not? 8 A. It is. 9 Q. And can you see that clearly? That's a copy of a Wall 10 Street Journal article that was introduced in your direct 11 testimony, is that correct? 12 A. Yes. 13 Q. And, in fact, Mr. Tigar read that to the jury, is that 14 correct? 15 A. That's correct. 16 Q. And it was written by Peter Waldman and Frances McMorris, 17 is that right? 18 A. That's right. 19 Q. Now, you don't know who those two people are, do you, other 20 than know from this article they are two people who supposedly 21 wrote this article? 22 A. I -- I've spoken to a lot of reporters before that date and 23 since that date. The names did not ring a bell, but I did 24 probably speak to them before the article was written. 25 Q. Oh, you say you probably spoke to them. You don't know SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8025 4b3esat2 Stewart - cross 1 whether you spoke to them or not, do you? You can't say 2 definitively you did or not, could you? 3 A. As I said, my memory is not photographic or perfect. I 4 know that I spoke to reporters from the Wall Street Journal 5 during the course of Sheikh Omar's trial or during the 6 deliberation or some point during that trial. Their names, I 7 did not recall, and -- but I know that I spoke to reporters 8 from Sheikh Omar's trial. And I probably -- I think 9 Ms. McBiddle, is that the name, McBiddle -- 10 Q. You don't know the name, do you? 11 A. I don't know the name, no. 12 Q. And you can't match a face to that name, can you? 13 A. I think I could probably match a face if I were to see her 14 again. 15 Q. Well, you just said the name McBiddle. The name is not 16 McBiddle. 17 MR. DEMBER: May I put the exhibit back on the Elmo, 18 your Honor, and present it to the jury. 19 THE COURT: Yes. 20 Q. The name is McMorris. Isn't it a fact, Ms. Stewart, you 21 don't know either of those two people, and you don't know 22 whether or not you've ever spoken to either of those two 23 people? 24 A. No. I think I said I did know that I spoke to reporters 25 from the Wall Street Journal. I certainly was aware of this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8026 4b3esat2 Stewart - cross 1 particular article when it came out. Could I have picked them 2 out of a lineup if you were to run one right now? Probably 3 not. But I have a recollection of the female reporter and -- 4 but the male reporter, I probably -- Mr. Waldman I probably 5 could not pick out, no. 6 Q. So you're saying you have a recollection of a female 7 reporter? 8 A. Yeah, I think it's pretty particular to this -- to the Wall 9 Street Journal. Not her name, but I do remember who she was. 10 Q. There's a female from the reporter of the Wall Street 11 Journal who you spoke to. How much did you see that person, 12 that particular woman or female reporter, at Abdel Rahman's 13 trial? 14 A. I think she attended sporadically. You know, for the 15 important dates, the openings, the closings, perhaps during the 16 course of the trial. I really don't remember exactly. 17 Q. You didn't keep track of her coming and going, wherever 18 that reporter was, did you? 19 A. No, not at all. 20 Q. You were too busy trying to defend your client, is that 21 right? 22 A. Yes, I guess you could characterize it that way. 23 Q. That was your main focus, was it not? 24 A. Yes, but I also explained that I thought that media was 25 important to the case. And I did do a great deal of talking to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8027 4b3esat2 Stewart - cross 1 the press during that trial. 2 Q. And a lot of the press that you saw there and that you 3 spoke to were people whose names you know, is that right? 4 A. Some of them I know, some of them I probably don't 5 remember. 6 Q. And some of them you have in your Rolodex in your office, 7 do you not, their names and phone numbers? 8 A. Yes. I think that existed long after the trial was over, 9 yes. 10 Q. Now, so you don't know -- when Mr. Tigar read this article 11 the other day, you don't know whether these two reporters 12 were -- ever stepped into the courtroom and heard any of the 13 evidence live, do you? You can't say that, can you? 14 A. No. As I said, I'm positive that the female reporter was 15 someone that I spoke to at some length and that she was 16 definitely in the courtroom. 17 Q. You said the female reporter. 18 A. Yes. 19 Q. But you can't match a name with a face. You're assuming, 20 are you not, that that must be Ms. McMorris, is that your 21 assumption? 22 A. She was -- as I said, she was known to me as -- and I 23 identified her as the reporter from the Wall Street Journal. 24 So I'm aware of her being here, whether I remembered her name 25 or not, but I recall her being in the courtroom. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8028 4b3esat2 Stewart - cross 1 As a matter of fact, I remember sitting with her -- 2 that courtroom is almost identically situated as this is -- in 3 the part that's directly behind where you're standing now and 4 talking to her. That, I do remember. 5 Q. You're telling us you spoke to a Wall Street Journal 6 reporter who's a female but you can't tell us it's the same 7 woman, can you? You don't know that woman's name, is that not 8 right? Did you not say that? 9 A. I guess you could say anytime you talk to a reporter and 10 then they write a story, you're not certain that the same 11 person you spoke to wrote the story. But as far as I knew, I 12 spoke with the Wall Street Journal and they did write the 13 story. I think they wrote a story at the very beginning of the 14 case as well. 15 Q. Now, there were a few people who were present during that 16 trial every day that the trial was in session, is that right? 17 A. Yes. 18 Q. And certain people were there every single day evidence was 19 presented in that case, is that right? 20 A. I would say that was true, although I'm -- it was almost 21 ten years ago now so -- 22 Q. Well, the jury that heard the evidence or that rendered the 23 verdict in that case was present every single day evidence was 24 presented, is that right? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8029 4b3esat2 Stewart - cross 1 Q. And Judge Mukasey was present every single day evidence was 2 presented in that case, was he not? 3 A. Yes. 4 Q. And when it came time for sentencing, it was Judge Mukasey 5 that imposed the sentence on your client, is that right? 6 A. That's true. 7 Q. And during that sentencing, Judge Mukasey had occasion to 8 comment on the evidence, did he not? 9 MR. TIGAR: Objection, your Honor. Relevance. 10 MR. DEMBER: State of mind, your Honor. 11 THE WITNESS: I'm searching my memory. 12 THE COURT: Take it up at the break, please. 13 Q. Ms. Stewart, let's take up -- let's turn to the Special 14 Administrative Measures, if we can. 15 Before I do that, though, let me -- obviously in our 16 case here, you've been present every single day the evidence 17 has been presented, have you not? 18 A. Yes. 19 Q. And you already -- I think you've testified in your direct 20 testimony that before the trial started, you reviewed much of 21 the discovery that was turned over in this case to your 22 attorneys and you, is that right? 23 A. Yes. 24 Q. That included documents, correct? 25 A. It did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8030 4b3esat2 Stewart - cross 1 Q. That included recordings? 2 A. It did. 3 Q. Certainly ones in Arabic you couldn't listen to and 4 understand, could you? 5 A. No. 6 Q. You don't speak Arabic? 7 A. No. 8 Q. Only a few words? 9 A. Just a few words. 10 Q. But you certainly could listen to the conversations that 11 were in English, is that right? 12 A. That is correct, yes. 13 Q. And did you listen to all of those conversations? 14 A. I would say so, yes. 15 Q. And there were some other types of evidence, videotapes, 16 things like that that were also provided in discovery; you 17 looked at those as well, did you not? 18 A. I looked at some videotapes. I'm not sure I looked at the 19 full length of any -- certainly the prison visit videotapes 20 were hard to listen to for an extended period of time. 21 Q. And you said you didn't look at every single piece of 22 evidence, or every piece of discovery that was turned over, is 23 that right? 24 A. That's right. 25 Q. That was your testimony, right, but you looked at a good SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8031 4b3esat2 Stewart - cross 1 deal of it, did you not? 2 A. Yes. 3 Q. And would it be fair to say when you looked at it, you 4 didn't look at it really from the standpoint of perhaps a 5 person accused of wrongdoing, but as -- you really looked at it 6 from the perspective of a lawyer, is that right? 7 A. Well, not exactly. I think that it's very hard to forsake 8 one's training and profession of 30 years. So of course I 9 couldn't help but look at it as a lawyer. That's what I am. 10 But I also looked at it as a defendant, which is, let me tell 11 you, a very different look than the look of the lawyer. 12 Q. Very different than you're used to, is that right? 13 A. Pardon me? 14 Q. Very different than you are used to -- 15 A. Yes. 16 Q. -- when you're looking at pretrial discovery provided by a 17 prosecutor? 18 A. Yes, it's -- as a lawyer you're dispassionate, hopefully, 19 looking at the evidence. As a party, a defendant, there's an 20 investment, no question. 21 Q. Now, let's talk about the SAMs a little bit. You told us 22 before that from your understanding certainly they were 23 instituted back in about April of 1997, correct? 24 A. That's correct. 25 Q. And they have been in continuous effect in various forms SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8032 4b3esat2 Stewart - cross 1 ever since then, certainly up to the point you were charged in 2 this case, is that correct? 3 A. That is my understanding, yes. 4 Q. There was never a time, as far as you understood, that 5 Abdel Rahman was not under Special Administrative Measures, is 6 that correct? 7 A. From '97 on, April '97 onward, that's correct. 8 Q. And you understood -- and you understand from having dealt 9 with the Special Administrative Measures that they restrict how 10 Abdel Rahman can communicate or could communicate with people, 11 is that right? 12 A. Generally speaking, I think that's a fair statement. 13 Q. Let's give some examples: For example, they limit the type 14 of people who can visit him, is that right? 15 A. Type? Yes, I guess you couldn't characterize it any other 16 way. 17 Q. Well, his lawyers can visit him, correct? 18 A. Yes. 19 Q. And his family, or certain family members can visit him, 20 correct? 21 A. Correct. 22 Q. And it restricts who on the telephone he can speak with, 23 does it not? 24 A. Yes. 25 Q. He can speak to his lawyers, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8033 4b3esat2 Stewart - cross 1 A. Correct. 2 Q. And he can speak to his wife, correct? 3 A. Different time frames, yes. But that is correct. 4 Q. And they also prescribe, or describe, I should say, how 5 Abdel Rahman can communicate with other people. And that's 6 mostly by mail, is that right? 7 A. It had some provisions about the mail, which were not too 8 applicable since he was not writing letters at that point. 9 Q. There's no question, is there not, that obviously during 10 the entire time the SAMs was in effect he's been blind, 11 correct? 12 A. Yes. 13 Q. And in effect, because of his diabetes, it's at certain 14 points of time he lost the ability to feel with his fingers, so 15 braille hasn't always been available to him as a way of 16 communicating? 17 A. That's true. 18 Q. Correct? 19 A. Yes. 20 Q. Let me go back to the SAMs. There are various procedures 21 in place for how visits can be conducted with him, is that 22 correct? 23 A. How visits can be conducted? I'm not -- 24 Q. Who could be present? 25 A. Who could be present, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8034 4b3esat2 Stewart - cross 1 Q. How much advanced notice has to be given in order to set up 2 a visit? 3 A. Was that in the SAMs? I'm not sure of that, but I think we 4 had to make advanced notice. 5 Q. I think it was. Certain restrictions, even with his 6 attorney calls, as to what an attorney can do with the call in 7 terms of patching it through or having somebody unauthorized 8 present in the room or on the line when the lawyers were 9 talking to him, is that right? 10 A. That's correct. 11 Q. And there's -- the SAMs have restrictions and procedures as 12 to the translator and what the translator can do or can't do, 13 is that right? 14 A. That's correct. 15 Q. Now, I think you've seen, we've introduced various 16 exhibits. Periodically you get copies of the Special 17 Administrative Measures from either Mr. Fitzgerald or somebody 18 else at the US Attorney's Office, is that right? 19 A. Yes. Mr. Francisco apparently, who we heard from here, was 20 in charge of it, yes. 21 Q. And with the SAMs -- we'll call them the SAMs, you 22 understand what that means, correct? 23 A. I do. 24 Q. Of course. And you also would get frequently a -- an 25 attorney affirmation for you to sign, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8035 4b3esat2 Stewart - cross 1 A. Usually, except sometimes they forgot to put it in or they 2 had the wrong date or whatever. But, yes, there was usually an 3 affirmation to sign. 4 Q. At some point. And let me just talk about the SAMs and 5 your dealing with them for a moment. 6 Is it fair to say that other than Abdel Rahman, you've 7 never had a client -- you've never represented a client who's 8 ever been under Special Administrative Measures? 9 A. That's correct. 10 Q. He's the only client you've ever represented who is under 11 such restrictions, is that right? 12 A. Yes. 13 Q. This was a -- when it first started, this was a new 14 experience for you, correct? 15 A. Yes. 16 Q. Now, at various times I think you've testified, or even 17 stated in recordings, that you believe that Abdel Rahman was an 18 influential man, an important man to his people? 19 A. I think he was a person that commanded a certain position 20 of respect and a certain place on the stage of public events in 21 Egypt and the Middle East, yes. 22 Q. And it's your understanding he was a well known person in 23 the Muslim world? 24 A. That is correct. 25 Q. I think you told us when you first came to represent him SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8036 4b3esat2 Stewart - cross 1 that you understood that he had advocated violence, is that 2 right? 3 A. Yes. I believe I knew that when I first came into the 4 case. 5 Q. And obviously at the point in time that the Special 6 Administrative Measures were imposed had been convicted and 7 sentenced, is that right? 8 A. That is correct. 9 Q. Now, I think it was maybe in one of the recordings where 10 you were speaking to Abdel Rahman, I think during the May 2000 11 prison visits, prisons themselves, you talked about some other 12 persons, other defendants, inmates that you knew about who were 13 also under Special Administrative Measures, is that right? Do 14 you remember that part of the conversation? 15 A. Are you referring to the part where we're talking about 16 bringing a class action lawsuit? 17 Q. Exactly. 18 A. Yes. 19 Q. You remember that? 20 A. Yes. 21 Q. And just from your knowledge of your own client being under 22 the SAMs -- 23 A. I'm sorry. I didn't catch that. 24 Q. I'll repeat it, I'm sorry. 25 Just from your own knowledge of your -- the fact that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8037 4b3esat2 Stewart - cross 1 your client was under these restrictions, were you aware of the 2 fact that actually very few federal prisoners, inmates in 3 federal prisons are actually under Special Administrative 4 Measures? Are you aware of that fact? 5 A. I think I was aware of that fact, yes. 6 Q. And I believe in that conversation you just mentioned where 7 you were talking during the visit about bringing a class action 8 with other lawyers who were representing other -- their clients 9 who were also under Special Administrative Measures, is that 10 right? 11 A. Yes. 12 Q. And you mentioned the name Ramzi Yousef in that 13 conversation, didn't you? 14 A. I did. 15 Q. And you knew who Ramzi Yousef was at the time you mentioned 16 his name, of course, right? 17 A. Yes. Actually, the government provided him to us during 18 the Sheikh's case to interview, the defense team. He had 19 recently been captured in Pakistan, so, yes, I participated in 20 that interview of Ramzi Yousef. 21 Q. Actually, was it in Pakistan or Philippines? 22 A. I think he was captured in Pakistan, but I could be wrong. 23 Q. But he was brought back to the United States to face 24 charges, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8038 4b3esat2 Stewart - cross 1 Q. And the charges, including the 1993 -- 2 MR. TIGAR: Objection, your Honor. 3 THE COURT: Sustained. 4 Q. He was, at the time you were talking about him during the 5 May 2000 visit, a convicted defendant, correct? 6 A. Yes. 7 Q. Is it fair to say he was convicted of very serious charges, 8 without going into what they were? 9 MR. TIGAR: Objection, your Honor. 10 MR. DEMBER: Her knowledge, your Honor, state of mind. 11 THE COURT: I'll allow that question. 12 A. Serious charges, yes, I believe so. 13 Q. And he received a very serious sentence, is that correct, 14 without -- I'm not asking anything more than that. 15 A. Yes. 16 Q. Did you know any other defendant inmates who had -- were 17 also under Special Administrative Measures? 18 A. It was my understanding that Leonard Pelletier, the leader 19 in the American Indian Movement, is held under SAMs, that he is 20 restricted. I also think that I remember reading about certain 21 persons who were gang leaders, convicted in this district of 22 drug, etc., gangs that were also placed under Special 23 Administrative Measures. Other than that, I couldn't say I 24 know of personal knowledge anyone else. 25 Q. Not specifying the nature of the crimes, were those two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8039 4b3esat2 Stewart - cross 1 people you mentioned or that you were thinking about, those 2 people you're thinking about, they were convicted individuals, 3 they had been convicted of crimes? 4 A. Leonard Pelletier is completely innocent, as far as I know. 5 It was appealed many, many times, and it's been back to court 6 many, many times. But he was, in fact, convicted from the 7 incident on a reservation, the Sioux Indian Rosebud 8 Reservation. And the gang leaders I also think had -- were 9 convicted of drugs, but also various murders in connection with 10 that. 11 Q. Serious crimes? 12 A. Serious crimes, yes. 13 Q. It's your view this fellow Mr. Pelletier -- is that his 14 name? 15 A. That's his name. 16 Q. You don't believe -- or you don't agree with whatever 17 verdict there was in his case, is that your -- is that what 18 you're telling us? 19 A. That's what I'm telling you. And he ran for president, I 20 believe, on the ballot in California yesterday, but that's 21 his -- he ran on the ballot for president in California 22 yesterday, but that's as may be. 23 Q. Now, Ms. Stewart -- and I want to sort of expand this 24 beyond just federal inmates -- did you have any clients who are 25 serving time in either federal or state jail that are under any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8040 4b3esat2 Stewart - cross 1 kind of special restrictions of any kind? Not specifically the 2 SAMs, but any other kinds of special restrictions that you're 3 aware of? 4 A. I know I have clients in the state prisons which are held 5 in special -- you know, the most secure prisons in the state, 6 one at Southport in particular. I don't think any of them have 7 special measures such as this, special regulations that have 8 been placed against them. 9 Q. So it sounds like you've never had any clients that have 10 been under restrictions similar to the SAMs that your client, 11 Abdel Rahman, has been under? 12 A. No. I've had clients that have been locked down by the 13 federal prison system, particularly after 9/11 when they locked 14 down anyone who had any kind of politic whatsoever, but they 15 were not done under a special regulation such as this, not that 16 I know of. 17 Q. OK. And no state clients in state prison who are under 18 some special type of restrictions similar to the SAMs? 19 A. Not that I recall. 20 Q. Now, other than when -- in the case of Abdel Rahman, have 21 you ever been required, before communicating with a client who 22 was convicted and sentenced and is in prison having to -- being 23 required to sign an affirmation of any kind promising to do or 24 not do certain things? 25 A. Not that I recall at this moment, no. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8041 4B35SAT7 Stewart - cross 1 Q. As far as you can recall, the first time and only time you 2 can remember having to do such a thing is in relationship to 3 the SAMs placed on Abdel Rahman, is that right? 4 A. To the best of my recollection as I sit here now, I believe 5 that was the first and last time that I had done it; yes. 6 Q. That's quite unusual, is that fair to say? It is unusual 7 for you? 8 A. Well, it was unusual for me. I think it is quite unusual, 9 yes. 10 Q. Now, let me just talk generally about the SAMs themselves 11 and what would happen when you would get them. 12 Would it be fair to say that when you got the SAMs 13 either in the mail or Federal Express or however they were 14 delivered to your office, is it fair to say that you studied 15 them carefully when you received them, at some point in time? 16 A. I think the first time probably I studied them very 17 carefully and probably consulted with Ramsey Clark and Abdeen 18 Jabarra who, of course, were receiving the same thing. 19 I don't know that as time progressed I took a great 20 deal of time to study them each and every time they came in. I 21 think it was sort of a read-over to see if there was anything 22 new and more egregious in them. 23 But other than that, I can't say that I sat for hours 24 and went over each and every provision on the fifth or tenth 25 time that I was receiving them. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8042 4B35SAT7 Stewart - cross 1 Q. Was it important to you to understand the restrictions 2 placed on your client? 3 A. Yes, it was important. Part of the case. 4 Q. I'm sorry? 5 A. It was part of the case, yes. 6 Q. In your view, to most effectively represent your client, 7 you had to know what restrictions were being placed on him, 8 correct? 9 A. Yes, but the first restrictions were so complete that there 10 really wasn't much other place to go from there. I mean they 11 were -- they silenced him completely. 12 Q. Well, you certainly had to understand how you would be able 13 to communicate with him and how others would be able to 14 communicate with him. That was important to you, wasn't it? 15 A. Yes. 16 As I testified earlier, I always believed that the 17 right of the attorney to communicate was untrammelled under 18 this no matter what other more restrictive reading might be had 19 of it is that that was a bubble that we were allowed to operate 20 in. 21 Q. I think you mentioned before that after a while when you 22 would get the Special Administrative Measure sent to you, you 23 would look not so much for every provision but the change in 24 the differences in the new version or of whatever you were sent 25 to see if there were any changes, to understand what they were; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8043 4B35SAT7 Stewart - cross 1 is that right? 2 A. I would say that's a fair statement. 3 I have a tendency not to be the most meticulous or 4 careful reader of such things but I would say, yes. And 5 because there were three of us receiving them, one of the three 6 of us would pick up on anything new or more restrictive or that 7 we felt had to be questioned in any way. 8 Q. Was that discussed among the lawyers when there were new 9 restrictions or changes of any kind? 10 A. I would say it would probably be mentioned in passing. I 11 can't point you to a specific file or conversation or change 12 but I think certainly that probably would be discussed; yes. 13 MR. DEMBER: Your Honor, may I approach the witness? 14 THE COURT: Yes. 15 Q. Ms. Stewart, I'm going to hand you up hard copies of 16 documents I am going to refer to in the next part of my 17 questioning. I am probably going to put them on the Elmo as 18 well but it might be easier for you if you have them physically 19 in hand. 20 By the way, Ms. Stewart, I hope they're in the order 21 that I plan on questioning you about them, so you can start 22 from the top. Hopefully we won't have to go searching through 23 them. 24 MR. DEMBER: Your Honor, may I have a moment? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8044 4B35SAT7 Stewart - cross 1 (Pause) 2 MR. DEMBER: Your Honor, may I put on the Elmo and 3 show the jury LD-203, which is in evidence? 4 THE COURT: All right. 5 Q. Ms. Stewart, this was an exhibit which was introduced 6 through you last week, is that right? 7 A. That's correct. 8 Q. And I think you told us in your testimony that this was the 9 earliest version of the SAMs that you were aware of, is that a 10 fair statement? 11 A. Right. 12 Q. This is the first one that you were aware of and actually 13 it is dated, you can see on the top there, April 3, 1997. Is 14 that right? 15 A. That's correct. 16 Q. And is it your understanding -- essentially that's when the 17 SAMs were first put in place? 18 A. That is the approximate date, as I recall. 19 Q. And if I can, let me just read the top portion. It says: 20 Notification to inmate Omar Abdel Rahman -- then there is the 21 number there -- of special restrictions authorized by 28 C.F.R. 22 Section 501.3. 23 Then it reads: Pursuant to 28 C.F.R. Section 501.3, 24 Special Administrative Measures will be implemented regarding 25 your confinement. The attorney general authorized the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8045 4B35SAT7 Stewart - cross 1 implementation of the procedures on March -- 2 THE COURT: Please keep your voice up. 3 MR. DEMBER: Sorry. 4 Q. The attorney general authorized the implementation of the 5 procedures on March 31, 1997, and delegated the implementation 6 of the procedures to the director for the Bureau of Prisons. 7 Accordingly, the Bureau of Prisons will implement the 8 procedures at this time because of (1) the nature of the crimes 9 for which you have been convicted; (2) your practice (and the 10 practice of your associates) of making "patch through" calls to 11 others or otherwise communicating with third parties, and (3) 12 concern that you may solicit additional violent attacks upon 13 others. 14 Without reading the rest of it, there is a subtitle 15 there or title next below these the following paragraph which 16 says telephone conversations. That apparently restricts or 17 describes the procedures for telephone calls, is that right? 18 A. It does. 19 Q. Okay, let's turn to the second page. There is additional 20 language that apparently pertains to that subject matter. 21 Then, below that is the word "visitation," is that right? 22 A. That's correct. 23 Q. And that seems to describe the rules that pertain to 24 visitation. And the next subtitle has the word "mail" and that 25 seems to pertain to the restrictions involving mail. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8046 4B35SAT7 Stewart - cross 1 Is that fair to say? 2 A. That's fair to say. 3 Q. And the last page really doesn't have any rules or 4 regulations on it, restrictions on it. It is just sort of an 5 attestation, is that correct? 6 A. Yes. 7 Q. So, this version of the SAMs that came out, essentially, is 8 two pages long with the third page for some people to sign, is 9 that right? 10 A. That's right. 11 Q. This was the shortest version of the SAMs that existed as 12 far as you knew, is that correct? 13 A. As far as I knew, yes. 14 Q. The SAMs that followed after this one were lengthier in 15 page numbers and in information, is that fair to say? 16 A. Yes. I'm not sure they changed very much concretely, but 17 they certainly were longer. 18 Q. Do you have before you Government Exhibit number 3, in 19 evidence? 20 A. I do. 21 Q. Why don't you turn to that. 22 May I display that Exhibit, your Honor? 23 THE COURT: Yes. 24 Q. Do you have the copy, Ms. Stewart? 25 A. I'm sorry, the what? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8047 4B35SAT7 Stewart - cross 1 Q. Do you have the hard copy of Exhibit number 3 in your 2 hands? 3 A. I do. 4 Q. Would you read for us the first two lines after it says 5 "attorney's affirmation," the two lines below that? 6 A. LYNNE STEWART, pursuant to 28 U.S.C. Section 1746, hereby 7 affirms under the penalties of perjury the truth of the 8 following: 9 Q. Would you read the next five lines for us and on the sixth 10 line, up to the word including the word "terms," do you see 11 that? 12 A. Yes. 13 Q. Would you read that for us, please? 14 A. 1. I am counsel of record for inmate Omar Abdel Rahman 15 (USMS #34892-054) and have read the "notification of Special 16 Administrative Measures" for inmate Omar Abdel Rahman, dated 17 May 11, 1998, and consisting of five (5) pages. I understand 18 the restrictions contained in that document and agree to abide 19 by its terms. 20 Q. Okay, you can stop there. Let me just ask you some 21 questions first of all. 22 On the first two lines you have read it says, Pursuant 23 to or -- LYNNE STEWART, pursuant to 28 U.S.C. Section 1746. 24 And essentially when a lawyer or any person has a document like 25 this and you have language similar to what is in the first two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8048 4B35SAT7 Stewart - cross 1 lines of this document where it states, hereby affirms under 2 the penalties of perjury the truth of the following, and it is 3 signed -- and you signed this document, did you not? 4 A. I did. 5 Q. And I will show the jury so they see it; signed it, dated 6 it May 7th, 1998? 7 A. Yes. 8 Q. When a person signs such a document, the person is 9 essentially taking an oath, correct? 10 A. That's correct. 11 Q. The person is swearing to the truthfulness of what they 12 sign and what is contained in the document, is that right? 13 A. That's correct. 14 Q. It's essentially no different than the oath you took last 15 week when you started your testimony, is that correct? 16 MR. TIGAR: Objection, your Honor. 17 THE COURT: Rephrase. 18 Q. It is, in fact, an oath to tell the truth? Excuse me. 19 Withdrawn. 20 It is an oath that what you state in the document that 21 you have signed is truthful, correct? 22 MR. TIGAR: Objection, your Honor. 23 THE COURT: Basis? 24 MR. TIGAR: It has to do with a legal matter, your 25 Honor, so perhaps we can take it up at the break. I don't want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8049 4B35SAT7 Stewart - cross 1 to make a speaking objection. 2 THE COURT: All right. 3 Q. Well, Ms. Stewart, I think you testified on the direct 4 testimony that when you signed this document you believed you 5 were taking an oath, is that right? That's the word you used? 6 A. Yes. 7 Q. And you were promising under oath to abide by whatever you 8 indicated you would abide by in that document, is that right? 9 A. Yes. 10 Q. And the document indicated that you were essentially 11 swearing or giving your word that you would abide by the 12 Special Administrative Measures which were dated May 11, 1998, 13 is that right? 14 A. Yes. And I was giving my word. 15 Q. Now, let me ask you to go down to paragraph number 2. Can 16 you read to us the last sentence in that paragraph? 17 A. Moreover, I shall only be accompanied by translators for 18 the purpose of communicating with inmate Abdel Rahman 19 concerning legal matters. 20 Q. And please do me a favor and read for us paragraph number 21 4, in its entirety. 22 A. 4. I understand that the Bureau of Prisons is relying upon 23 my sworn representations as a member of the bar in this 24 affidavit in affording inmate Abdel Rahman the opportunity to 25 meet and/or speak and/or correspond with me and my office, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8050 4B35SAT7 Stewart - cross 1 that any violation of these understandings could, among other 2 things, result in further limitation (or even elimination) of 3 inmate Abdel Rahman's ability to contact me or my office. 4 Q. And then you signed it and dated it May 7th, 1998, correct? 5 A. Exactly. Yes. 6 Q. Now, let's turn to the next page of the exhibit, if we may, 7 and the next page is the start of the Special Administrative 8 Measures themselves, the ones dated May 11th, 1998, is that 9 correct? 10 A. Yes, I signed it on May 7th. These were prospective. 11 Q. And by the way, this version is different than the one we 12 just referred to which was the one I believe marked LS-203, 13 because this version is now five pages long, is it not? 14 A. It is five pages long. As I said, I don't know whether it 15 substantively, that is, affects changes. But it certainly is a 16 longer document. 17 Q. Now, at the beginning it indicates the date, it identifies 18 these as Special Administrative Measures again pursuant to 28 19 C.F.R. Section 503.3? 20 THE COURT: 501. 21 Q. 501, thank you. 22 And it indicates the inmate's name and that's your 23 client, correct? 24 A. That's correct. 25 Q. Would you read for us the first paragraph of number 2, item SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8051 4B35SAT7 Stewart - cross 1 number 2 listed where it says attorney affirmation of 2 restrictions? Would you read that for us, please? 3 A. Sure. 4 2. Attorney affirmation of restrictions. The 5 inmate's attorney(s) of record -- individually by each if more 6 than one -- must sign an affirmation acknowledging that 7 counsel, counsel staff, and anyone else at the behest of, or 8 with the knowledge of, the attorney(s), will fully abide by the 9 below-listed restrictions. 10 Q. Well, let me ask you this question. 11 Whenever you would go see Mr. Abdel Rahman, obviously 12 you couldn't speak TO him directly because you don't speak 13 Arabic, is that correct? 14 A. That's correct. 15 Q. The only way you could communicate with him is through a 16 translator interpreter, is that right? 17 A. That's correct. 18 Q. And I think you have indicated that was always Mr. Yousry, 19 is that right? 20 A. We attempted at various times to have other people 21 qualified. The government would not qualify any of those other 22 people. 23 Q. Well, my question was every time you went, you went with 24 Mr. Yousry? 25 A. Oh yes. Yes, I did. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8052 4B35SAT7 Stewart - cross 1 Q. And certainly he was acting on behalf or at the behest of 2 you, is that correct? 3 A. Yes. 4 Q. Or else you couldn't communicate with the man, is that 5 correct? 6 A. Exactly, yes. 7 Q. So he was essentially part of you because without him there 8 was no communication, is that right? 9 A. I don't know about the part of, but he was acting at my 10 request and behest and he was an extension of what we 11 considered to be the legal team. Yes. 12 Q. Did you consider him part of the legal team? 13 A. Yes; as interpreter. 14 Q. From your conversation with Mr. Yousry, do you believe he 15 thought himself as part of the legal team? 16 MR. STERN: Objection as to what he thought. 17 THE COURT: Sustained. 18 Q. Ms. Stewart, why don't you do me a favor and go down to 19 item number 3. 20 THE COURT: Let's take just about five minutes. 21 Ladies and gentlemen, please remember my continuing 22 instructions. Please don't talk about the case at all. Always 23 remember to keep an open mind. 24 All rise, please. And please follow Mr. Fletcher to 25 the jury room. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8053 4B35SAT7 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. 3 (Witness steps down) 4 THE COURT: I am sorry to have broken for just a 5 moment. It was plain one of the jurors had lost a pen and I 6 wasn't going to offer a juror a pen in the middle of the 7 examination, so. 8 MR. TIGAR: Your Honor, there were two issues that 9 arose during the examination that I recall as to which the 10 Court reserved. 11 The first, your Honor, was with respect to what Judge 12 Mukasey said. 13 THE COURT: Actually the first one was -- 14 MR. TIGAR: I'm sorry. 15 THE COURT: -- whether the defendant challenged the 16 wiretap evidence on appeal. 17 MR. TIGAR: Yes, your Honor. 18 MR. DEMBER: Your Honor, may I ask for a moment? If 19 we are going to break at 12:15, I'm not going to get to this 20 before then. I'm happy to discuss it now. But if your Honor 21 wants to get the jury back as soon as possible... 22 THE COURT: There were three issues that I think we 23 can take them up later. Right now there is nothing further on 24 those issues so you can certainly take them up later. 25 One was the wiretap on appeal, one is Judge Mukasey's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8054 4B35SAT7 Stewart - cross 1 comments, and the other was a question with respect to did you 2 consider that you had taken an oath that what you were saying 3 was truthful. 4 MR. TIGAR: Yes. 5 MR. DEMBER: Your Honor, with respect to that last 6 item, I'm not going to go back to this. 7 THE COURT: So that leaves the first two and we can 8 take a two-minute break. 9 (Recess) 10 THE COURT: Please be seated, all. 11 MR. TIGAR: Your Honor, at what time does the Court 12 intend to break? 13 THE COURT: I intended to break about 12:15 whenever 14 lunch comes. 15 MR. TIGAR: Shall Ms. Stewart resume the stand now? 16 THE COURT: Yes, please. 17 (Witness resumes the stand) 18 THE COURT: Lunch is here. I would really prefer to 19 do about 15 minutes more if the parties are amenable rather 20 than to break now for lunch. I'm afraid we will lose more time 21 by doing it that way. 22 So, why don't we bring in the jurors. 23 (Jury present) 24 THE COURT: Please be seated, all. 25 Ms. Stewart is on the stand. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8055 4B35SAT7 Stewart - cross 1 Mr. Fletcher? 2 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 3 are still under oath. 4 THE WITNESS: Yes. 5 THE COURT: Mr. Dember, you may proceed. 6 BY MR. DEMBER:: 7 Q. Ms. Stewart, would you please read for us all of item 8 number 3 there, including 3a? 9 A. 3. Inmate communications prohibitions - The inmate is 10 prohibited from having contact with other inmates and others 11 (except as noted in this document) that could foreseeably 12 result in the inmate communicating information (sending or 13 receiving) that could circumvent the SAM intent of 14 significantly limiting the inmate's ability to communicate 15 (send or receive) terrorist information. 16 A. The inmate is prohibited from passing or receiving 17 any written or recorded communications to or from other 18 inmates, visitors, attorney(s), BOP staff, or anyone else 19 except as outlined and allowed by this document. 20 Q. Thank you, Ms. Stewart. 21 Now, just below that there is this section that deals 22 with inmate telephone contacts, is that right? 23 A. That's correct. 24 Q. Let's turn the page, and the next page has under item C, 25 general rules for telephone calls, and then there is a section SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8056 4B35SAT7 Stewart - cross 1 that's titled section D, attorney. And after that there is a 2 section that deals with telephone calls to legal spouse, is 3 that right? I'm sorry, on page 3 of the SAMs? 4 A. Yes. 5 Q. And below that starts the section dealing with mail? 6 A. Yes. 7 Q. Why don't you turn the page to page 4. Actually, I'm 8 sorry. Let me ask you to go back to page 3 for a moment, I 9 skipped a page. 10 On the bottom of page 3 could you read item B through 11 to the end of up to item C on the following page first where it 12 starts Nonlegal (nonnews media) mail? 13 A. Yes. 14 Q. Thank you. 15 A. B. Nonlegal (nonnews media) mail. Any mail not clearly 16 addressed to/from the inmate's attorney(s) of record and not 17 marked privileged. 18 Continue? 19 Q. Please. Yes. 20 A. I. All nonlegal mail (outgoing or incoming) (including 21 news media mail): (1) shall be copied by the warden or his/her 22 designee, of the facility in which the inmate is housed, 23 (2) shall be forwarded, in copy form, to the location 24 designated by the FBI, and 25 (3) shall be delayed distribution for a reasonable SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8057 4B35SAT7 Stewart - cross 1 time to allow for translation and analysis. 2 Q. Could you just read ii for us, please? 3 A. Ii, is that? 4 Q. Yes. 5 A. Ii. If outgoing/incoming mail is determined to contain 6 (overt or covert) requests for illegal activities, or actual or 7 attempted circumvention of SAM, it (the mail) shall not be 8 delivered. 9 Q. Ms. Stewart, this section here dealing with incoming and 10 outgoing mail, it doesn't restrict, does it, who can send mail, 11 correspondence to Abdel Rahman? It doesn't restrict who he 12 could correspond with, is that right? 13 A. Well, the first paragraph here says adherence to usual BOP 14 policies which I means I think to correspond, anyone an inmate 15 corresponds with has to be on an approved list before they can 16 correspond with them, period. And this does not restrict but 17 he wasn't receiving letters. He's blind, he can't read the 18 letters. 19 Q. Well, there is nothing in this section that prevents his 20 attorneys from -- actually there is nothing in the Special 21 Administrative Measures that prevents his attorneys from 22 bringing in mail, correspondence from other people, if they 23 follow this procedure, isn't that correct? 24 A. Except there is such a thing as privilege and he is 25 entitled to have correspondence that the attorney decides falls SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8058 4B35SAT7 Stewart - cross 1 under the rubric of part and parcel of his case as a privileged 2 matter. 3 Q. We are talking about attorney-client privilege? 4 A. Yeah. 5 Q. And do you believe that letters from friends, congregants, 6 simply reporting on news in their lives, is subject to the 7 attorney-client privilege? 8 A. Well, insofar as it represented his support base and the 9 fact these were people that were volunteering to help with his 10 case. All of those things played a role in those letters that 11 we brought in with us and I certainly saw them as part and 12 parcel of his case and things that he had a right to know 13 about. 14 Q. Ms. Stewart, you understand, do you not, that the 15 attorney-client privilege is restricted to communications 16 between an attorney and a client, is that right? 17 MR. TIGAR: Objection, your Honor. 18 THE COURT: Sustained. 19 Q. Ms. Stewart, are you telling us that letters from Nasser 20 Ahmed's wife, you brought some of those in the prison, did you 21 not? 22 A. Yes. 23 Q. And is it your position that those, that letter or those 24 letters -- there may have been a couple of them, right in the 25 two visits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8059 4B35SAT7 Stewart - cross 1 A. Yes. 2 Q. Which describe nothing related to any legal proceeding or 3 legal issue, was subject to the attorney-client privilege? Is 4 that your testimony? 5 A. Well, I think part of our obligation as the attorney for a 6 person is to make him aware of all of those factors which 7 influenced the conduct of whatever case he is involved in. And 8 in my view those letters were part and parcel of that view. 9 I had mentioned that I have an expansive view. I'm 10 not saying an illegal view, and I think that Salwah -- I can't 11 remember her last name -- but at any rate, her letters laid out 12 a certain sense of how people who had been close to him felt 13 about his absence. That it was important for him to know that 14 as part of his own being able to cope with the situation he 15 found himself in. 16 All of those things, in my view, did have an impact on 17 his case and the conduct of his case. 18 Q. On what case, Ms. Stewart? 19 A. On the case that we were preparing, on the case that is 20 always -- as I said, the person is locked up. There may at any 21 time be litigation brought on his behalf. There was no case 22 pending, we have gone through that at great length earlier this 23 morning. But in my view, all of this had to do with litigation 24 we were preparing to bring. 25 Q. Litigation you were preparing to bring for what purpose? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8060 4B35SAT7 Stewart - cross 1 A. For what purpose? To ameliorate -- 2 Q. What litigation are you talking about, Ms. Stewart? 3 A. The conditions lawsuit that has been mentioned. 4 Q. So you wanted to challenge Abdel Rahman's conditions of 5 confinement, is that correct? 6 A. Yes. 7 Q. And part of that was challenging the SAMs themselves, is 8 that right? 9 A. It would have been, yes. 10 Q. And part of that was other restrictions outside the SAMs or 11 other conditions he was living under as a prisoner, is that 12 right, besides the SAMs? 13 A. Yes, that's true. 14 Q. And describe for us how a letter from that woman you just 15 mentioned has anything to do with a legal case you were 16 planning to bring but never did. How would that affect, how 17 would that have any impact whatsoever on your legal case you 18 wanted to bring? 19 A. As I explained, it's the effect that it has on the Sheikh. 20 It's his right to be fully informed of anything which can 21 affect his case. 22 And I think the communications from people who were in 23 his congregation who explained to him in no uncertain terms 24 what was happening in the Muslim community, led to conclusions 25 about whether this was the proper time to bring the case, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8061 4B35SAT7 Stewart - cross 1 whether there was a strong feeling of support out there or 2 whether the support was very isolated. 3 All of that you find in her letters when she writes to 4 him about how they're all alone, they don't even go to the 5 mosque anymore. All of that is part of those letters and I 6 believed he had a right to know about that as part of the 7 information he needed to make decisions concerning the bringing 8 of this case. 9 Q. And that influence whether or not you would bring a case 10 based on this woman's letters simply talking about what's going 11 on in her life? 12 A. I don't think it was based on these letters. The lawsuit 13 was based on the terrible restrictions that he was living 14 under. 15 But her letters, they were part of the bigger picture, 16 as I said, of the sentiment of the community and, yes, this 17 woman's letters were part of that. 18 Q. Are you saying that the sentiment of the community was such 19 that perhaps embolden him, you would bring a suit; if it 20 didn't, you wouldn't? 21 A. No. I think it was just the opposite, as a matter of fact. 22 It was a direct communication to him in his own 23 language by a person he had known and who was close to his case 24 in the sense that she was Nasser Ahmed's wife and apparently -- 25 and attended court and also had done translation for him of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8062 4B35SAT7 Stewart - cross 1 various things, reading, making of tapes for him. And then 2 that would have an impact. 3 For me to just say to him, you know, the climate is 4 not really good for the bringing of this case, there is a lot 5 more anti-Muslim sentiment out there. That's for me. 6 But to hear it from this own woman's mouth, as it 7 were, that the sentiment out there is so bad that we don't even 8 go to the mosque anymore, or we're bereft without you here, 9 that would mean something a little bit differently. 10 And I think he had the right to hear all of those 11 voices in preparation and decision making with regard to the 12 proposed case. 13 Q. Ms. Stewart, let me go back for a minute and show you at 14 the bottom of page 3, you may look at the hard copy if you like 15 and what you read to us said, right, Nonlegal mails. And then 16 it reads, you then read for us, Any mail not clearly addressed 17 to/from the inmate's attorney(s) of record and not marked 18 privileged. 19 Did you mark these letters privileged? 20 A. These were letters that we carried in with us. They 21 weren't letters except in the form that they took. 22 Q. Were they letters? 23 A. They were letters and they were privileged because they 24 were part of what we were working on. They were part of the 25 attorney -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8063 4B35SAT7 Stewart - cross 1 Q. I'm sorry. 2 A. I'm sorry. 3 Q. I'm sorry. Go ahead. 4 A. They were not marked privileged to end the question with 5 the answer. 6 Q. Well, when you came into the federal medical center at 7 Rochester, did you show the letters to the prison guards, the 8 prison officials, say to them, these are privileged 9 correspondence, privileged letters. I am bringing them in and 10 I can do so under the SAMs? 11 Did you tell them that? 12 A. No, I did not tell them that. But of course they went 13 through everything we brought in every time. 14 Q. And what languages were these letters in? 15 A. They were in Arabic. 16 Q. And were you aware if any of the prison guards or prison 17 officials, whether any of them spoke Arabic? 18 A. I think, pretty clearly from the evidence we've seen here, 19 nobody in that prison spoke Arabic. 20 Q. Now, Ms. Stewart, let me give you a break. Let me read 21 Section C here. It says, News Media Mail. 22 A. Do you see that? What did you say? 23 Q. I'm going to give you a break. I'm going to give you some 24 rest. 25 A. You are going to give me a break? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8064 4B35SAT7 Stewart - cross 1 Q. It says Section C. 2 A. Thank you, Mr. Dember. 3 Q. C. Any mail to/from a member of the news media: 4 i. Shall be screened with particular care to ensure 5 that it contains no request for, or suggestions of, illegal 6 activities, or attempted circumvention of the SAM. 7 Ii. Shall be delayed distribution for a reasonable 8 period of time to ensure that it contains no requests for, or 9 suggestions of, illegal activities, or attempted circumvention 10 of the SAM. 11 Ms. Stewart, I am going to turn quickly to page 5. 12 You have that in front of you, there is a provision for 13 translator and a provision that says at the bottom of page 5, 14 communication with news media. Okay? Would you read that 15 section for us, please? 16 A. Yes. 17 8. Communication with news media - The inmate shall 18 not be permitted to talk with, or otherwise communicate with, 19 any representative of the news media, either in person, by 20 telephone, by furnishing a recorded message, by communicating 21 through inmate's attorney(s)/staff, or otherwise. Any mail 22 to/from news media will be handled as outlined above. 23 Q. Ms. Stewart, let's turn back to the first page of the 24 exhibit which is the affirmation. Would you read for us 25 paragraph number 3? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8065 4B35SAT7 Stewart - cross 1 A. Paragraph number 3. I further understand that neither I 2 nor any member of my office shall forward any mail received 3 from inmate Abdel Rahman to a third person. Nor shall I use my 4 meetings, correspondence or phone calls with Abdel Rahman to 5 pass messages between third parties (including, but not limited 6 to, the media) and Abdel Rahman. 7 Q. Now, Ms. Stewart, on the face of this attorney affirmation 8 that you signed and Special Administrative Measures, let's go 9 back to the last page, page number 5, Communications with news 10 media. 11 That states, does it not, that the inmate shall not be 12 permitted to talk or communicate with any member of the news 13 media? 14 THE COURT: Any representative. 15 Q. Any representative of the news media. I'm paraphrasing, 16 your Honor. 17 But anyway, that's what it says, does not? 18 A. That's what the words say. Yes. 19 Q. It goes on and describes the different ways that's possible 20 and includes by communicating through inmate's 21 attorney(s)/staff. 22 It says that, is that correct? 23 A. Yes. 24 Q. Is that pretty clear to you? Is the language clear in that 25 section of the SAMs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8066 4B35SAT7 Stewart - cross 1 A. Yes, the language is clear, as I said when I was on direct 2 exam. 3 But, I also believed and still believe to this moment 4 that it could not infringe upon our ability to fully represent 5 him as a client and that actually we were given a certain 6 leeway, a certain bubble in which to operate, and all three of 7 the lawyers representing him did so. 8 Q. Ms. Stewart, my question was, and I think you have told us, 9 this section is not ambiguous, it is clear. The language is 10 clear in Section 8, isn't it? 11 I understand about your bubble but all I'm asking is, 12 my question is, is this language in Section 8 clear to you? Is 13 it unambiguous? 14 A. It is unambiguous but the SAM, of course, is directed to 15 the client, right? It's not -- this is not a regulation for 16 the lawyers. 17 Q. Well, Ms. Stewart, when you signed the first page of 18 Exhibit number 3 here, your attorney affirmation, and you read 19 for us paragraph 3, is that right? 20 A. Yes. 21 Q. And the second sentence in that paragraph reads: Nor shall 22 I use my meetings, correspondence or phone calls with Abdel 23 Rahman to pass messages between third parties including but not 24 limited to the media and Abdel Rahman. 25 Isn't that language clear as well? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8067 4B35SAT7 Stewart - cross 1 A. It's clear and I never did that. 2 Q. You never passed any messages from Abdel Rahman to the 3 media? 4 A. Messages? No messages, no. 5 Q. Are you telling us the press release was something other 6 than a message? 7 A. This is 1998, isn't it? This is the -- 8 Q. My question is when you issued the press release are you 9 telling us that wasn't a message? 10 A. I don't think that was a message. A message -- I mean in 11 my mind, is some secret communication. In other words, I take 12 a message into the jail and come out and secretly give the 13 answer. 14 This was done so openly, so above board, so out there 15 for everybody to know about. And, as I said, I wasn't the 16 first lawyer in this case to have done that in May of 2000 and 17 we understood this was the leeway we were granted to represent 18 the client in the best way possible. 19 Q. Ms. Stewart, do either the affirmation or the SAMs talk 20 about secret messages? 21 A. No. 22 Q. They don't use that language, do they? 23 A. No they. 24 Q. Excuse me? 25 A. It does not say secret. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8068 4B35SAT7 Stewart - cross 1 Q. When you issued the press release, that was not a message, 2 in your view? 3 A. That was not a message, no. 4 Q. What was it? 5 A. It was a press release. It was an invitation to a 6 discussion. It was an expression of his personal view as to 7 the peace initiative. It was not a message -- go to the third 8 sand dune and dig up the weapons or something. It was a 9 communication that we felt was necessary to maintain his 10 posture within the support group in Egypt. 11 Q. Ms. Stewart, let me go back to page number 1 of the SAMs. 12 Do you see under item 3a? Let me direct your 13 attention to item 3a on page 12 of the SAMs. Do you see that? 14 A. Yes. 15 Q. It reads: Inmate is prohibited from passing or receiving 16 any written or recorded communications to or from other 17 inmates, visitors, attorneys, BOP staff, or anyone else except 18 as outlined and allowed by this document. 19 Is that the way it reads? 20 A. That's the way it reads. 21 Q. Thank you. 22 MR. DEMBER: Your Honor, is it time for the break? 23 THE COURT: Yes. 24 All right, ladies and gentlemen. We will break for 25 lunch. And since we are breaking for the day at 2:00 this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8069 4B35SAT7 Stewart - cross 1 afternoon, I would appreciate it if you could be ready to 2 return at ten minutes after one. Your lunch is ready as I 3 understand, so you won't have to wait. 4 Ladies and gentlemen, please remember my continuing 5 instructions. Please don't talk about this case at all. 6 Please remember to keep an open mind until after you have heard 7 all of the evidence, I have instructed you on the law, and you 8 have gone to the jury room to begin your deliberations. 9 Have a good lunch. I look forward to seeing you 10 later. 11 All rise and please follow Mr. Fletcher into the jury 12 room. 13 (Jury not present) 14 THE COURT: Ms. Stewart may step down and please be 15 back at 1:00, five after one. 16 (Luncheon recess) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8070 4B35SAT7 Stewart - cross 1 AFTERNOON SESSION 2 1:15 p.m. 3 THE COURT: Are we ready to proceed? 4 MR. DEMBER: Your Honor, I am ready to proceed. And 5 we can take up the issues that were identified -- there's 6 another issue that I want to bring up, but we can wait until 7 2:00 to do that. 8 THE COURT: Fine. If Ms. Stewart would take the 9 stand, please, and we'll bring in the jury. 10 (Continued on next page) 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8071 4B35SAT7 Stewart - cross 1 (In open court; jury present) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 Good to see you all. Ms. Stewart is on the stand. 4 Mr. Fletcher? 5 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 6 are still under oath. 7 THE WITNESS: Yes. 8 THE COURT: All right. 9 MR. DEMBER: May I proceed, your Honor. 10 THE COURT: Government, you may proceed. 11 BY MR. DEMBER: 12 Q. Ms. Stewart, I've put back the documents that were there 13 this morning. 14 MR. DEMBER: May we display, your Honor, Government 15 Exhibit 2655. In evidence. 16 THE COURT: Yes. 17 MR. DEMBER: Thank you, your Honor. 18 Q. Ms. Stewart, you have a hard copy of that exhibit before 19 you? 20 A. I do. 21 Q. OK. And this is -- first page of this exhibit consists of 22 a cover page dated August 23rd, 1999, is that right? 23 A. That's correct. 24 Q. From the United States Attorney's Office addressed to you, 25 and basically is informing you that enclosed are notification SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8072 4ab3sat4 Stewart - cross 1 of Special Administrative Measures for your client and an 2 attorney affirmation, is that right? 3 A. Yes. 4 Q. And sent by and signed by Mr. Francisco, is that right? 5 A. That's correct. 6 Q. Now, the second page of the document, the exhibit, is a 7 copy of an attorney affirmation, is that correct? 8 A. That's right. 9 Q. And does that appear to you to be similar to the one that 10 you referred to right before the lunch break? 11 A. Without having the other one in front of me, it looks 12 identical to it, yes. 13 Q. OK. And do you recall that you never actually signed this 14 particular one and didn't -- you never sent this one in? Do 15 you have any recollection of that? 16 A. I have no recollection of that. 17 Q. OK. Let's turn to the next page of the exhibit, which is 18 the notification of Special Administrative Measures, and it's 19 dated April 7, 1999, is that right? 20 A. Yes. 21 Q. Again, that's -- three lines down it indicates it's for 22 your client, Sheikh Omar Abdel Rahman, correct? 23 A. Correct. 24 Q. And let me on the same page focus your attention down to 25 paragraph 3 and 3a, do you see that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8073 4ab3sat4 Stewart - cross 1 A. Yes. 2 Q. Would you read that to us, please. 3 A. Three, inmate communications prohibitions - the inmate is 4 limited, within BOP reasonable efforts and existing confinement 5 conditions, from having contact with other inmates and others 6 (except as noted in this document) that could reasonably 7 foreseeably result in the inmate communicating information 8 (sending or receiving) that could circumvent the SAMs' intent 9 of significantly limiting the inmate's ability to communicate 10 (send or receive) terrorist information. 11 Q. Read 3a? 12 A. A also? 13 Q. Please. 14 A. A, small A, the inmate is prohibited from passing or 15 receiving any written or recorded communications to or from any 16 other inmate, visitor, attorney or anyone else, except as 17 outlined and allowed by this document. 18 Q. Now, Ms. Stewart, by the way, this version of the SAMs, how 19 many pages does it consist of? 20 A. It cited seven in the letter. Let me look. Seven pages. 21 Q. And the one we talked about before lunch, that had five 22 pages to it, is that right? 23 A. That's right. 24 Q. Now, let me just flip through the document with you, second 25 page, as restrictions related to attorney affirmation, below SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8074 4ab3sat4 Stewart - cross 1 that there is a section on use of interpreters and translators, 2 correct? 3 A. Yes. 4 Q. All right. Let's go to the next page, page three. It 5 talks about visits, and then below that, attorney use of 6 interpreters/translator. 7 A. Yes. 8 Q. And then below that there's a section on inmate telephone 9 contacts. 10 A. Yes. 11 Q. Go to page four. Page four has a section on telephone, 12 specifically attorney. 13 Page five has a section on inmate spouse, inmate's 14 spouse, first, telephone calls, correct? 15 A. Yes. 16 Q. And turn to page six, would you, please. 17 A. Yes. 18 Q. Thank you. Page six, item seven talks about mail, is that 19 correct, and distinguishes between the legal mail and the 20 nonlegal mail, is that right? 21 A. Yes. 22 Q. And for the nonlegal mail, it starts listing the steps, 23 procedures that have to be followed when nonlegal mail comes in 24 for Abdel Rahman, is that correct? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8075 4ab3sat4 Stewart - cross 1 Q. All right. And let me turn to the last page there. Item 2 eight involves visits, and item nine involves communication 3 with news media, correct? 4 A. Yes. 5 Q. Now, did you notice in this version of the SAMs -- I'm 6 sorry, I'm going to withdraw the question. 7 In the previous section of -- excuse me, the previous 8 version of the SAMs, do you recall there's a section pertaining 9 to news media mail, a separate section for that; do you 10 remember that? 11 A. I didn't catch the word after media. 12 Q. OK. There was a section in the previous version of the 13 SAMs that we saw before lunch, a section called news media 14 mail, do you remember that? 15 A. Yes, I remember that. 16 Q. OK. And I believe you read that section to the jury, is 17 that right? 18 A. Yes. 19 Q. Let me just -- 20 MR. DEMBER: May I just once again display Exhibit 3 21 to the jury, your Honor. 22 THE COURT: Yes. 23 Q. Can you see that on the monitor, Ms. Stewart? Let me 24 just -- so you orient yourself, that's Exhibit 3. 25 A. OK, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8076 4ab3sat4 Stewart - cross 1 Q. And in the SAMs portion of Exhibit 3 there is a section 2 which is entitled news media mail, correct? 3 A. Yes. 4 Q. That's the section you read before lunch, or one of the 5 sections we read before lunch, correct? 6 A. Yes. 7 Q. OK. Now, in the version you have before you now, that 8 we're talking about, Exhibit 2655 -- 9 A. Yes. 10 Q. -- is there any section news media mail in that version of 11 SAMs? 12 A. No, there isn't. 13 Q. OK. In fact, the only reference to communication with news 14 media appears on page seven, the final page of the version of 15 the SAMs that we're now talking about, is that right? 16 A. Yes. 17 Q. OK. And would you read -- that's in paragraph nine? 18 A. Yes. 19 Q. Would you read that for us, please. 20 A. Nine, communication with news media, dash, the inmate will 21 not be permitted to talk with, meet with, correspond with or 22 otherwise communicate with any member or representative of the 23 news media, in person, by telephone, by furnishing a recorded 24 message, through the mails, through his attorney or otherwise. 25 Q. And is it fair to say that the only section of this new SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8077 4ab3sat4 Stewart - cross 1 version of the SAMs that makes any reference to media is 2 section nine here, is that correct? 3 A. That's correct. I did notice, though, that the beginning 4 of the SAMs said something about that they -- the interim SAM 5 modification authority, which is also new in this version, says 6 something about that it does not create a more restrictive SAM, 7 and yet on the plain face of this that would appear to be more 8 restrictive. 9 Q. Well, this is the -- that was the version of the SAMs that 10 came into effect at that time, is that right? 11 A. That's correct. 12 Q. And by the way, is it fair to say that with respect to the 13 version we've just reviewed and the first version -- or excuse 14 me, the version we talked about right before lunch, there's no 15 prohibition about any of Abdel Rahman's lawyers issuing press 16 releases in which they just talk about what they want to talk 17 about, without making reference to statements made by Abdel 18 Rahman, is that correct? 19 A. I think you could read it that way, yes, certainly. 20 Q. Well, you certainly were not restricted at any point in 21 time in going to the media -- and you yourself complained about 22 the conditions Abdel Rahman was confined under, is that right? 23 A. That and other things as well, yes. 24 Q. You could complain about his conviction? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8078 4ab3sat4 Stewart - cross 1 Q. You could complain about his conviction -- I'm sorry. You 2 could complain about the appeal, you could complain about his 3 legal status, you could complain about his conditions of 4 confinement, you could say anything you wanted to say coming 5 from you, correct? 6 A. Yes. 7 Q. Nothing restricted that, correct? 8 A. As long, I guess, as we understand that, you know, when I 9 spoke about things that affected my client, it was always in 10 that connection; it wasn't just an open-ended statement. In 11 other words, if the press wanted to know about conditions, it 12 was not the conditions generally in the Bureau of Prisons but 13 his conditions. 14 Q. You could describe them to the media; there is nothing in 15 any version of the SAMs that ever existed that limited you to 16 simply describing what his conditions were, correct? 17 A. That's true, but in a limited sense, because in my view, of 18 course, it had to do with his entire case. 19 Q. My question was: Nothing prevented you from presenting to 20 the media your message about his conditions? 21 A. No. I'm just -- I'm not sure of the distinction there, 22 but, no, there wasn't. 23 Q. Well, let's look back at the last paragraph here, number 24 nine, that is very similar to -- well, let's check. 25 You read that section to us, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8079 4ab3sat4 Stewart - cross 1 A. I did. 2 Q. And it's somewhat similar to the paragraph from Exhibit 3 3 that talks about communications with news media, correct? 4 A. Yes. 5 Q. It's not worded exactly the same, but it's similar? 6 A. It's similar, yes. 7 Q. And like the paragraph in the preceding version of the 8 SAMs, would you agree this is unambiguous; it's clear what the 9 message is, what the words are? 10 A. Well, it doesn't say anything about conditions. 11 Q. Excuse me? 12 A. It doesn't say, conditions accepted. It says in the same 13 way the other one said -- 14 Q. Well, it says, inmate will not be permitted to talk with, 15 meet with, correspond with or otherwise communicate with any 16 member or representative of the news media in person, by 17 telephone, by furnishing a recorded message, through the mails, 18 through his attorney or attorneys or otherwise. 19 That's a clear, unambiguous statement, correct? 20 A. Except that the word "communicate" could mean a lot of 21 things. 22 Q. Communicate could mean a lot of things. Well, certainly 23 issuing a statement, issuing a statement by your client in his 24 words to somebody else is communicating his words to somebody 25 else, is it not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8080 4ab3sat4 Stewart - cross 1 A. Yes, such as his approval of the initial peace initiative 2 or his desire not to have a political party formed by the group 3 that he had been associated. Those two are statements of the 4 client and they are communications. 5 Q. As well as withholding support for a peace initiative or a 6 ceasefire, that also is -- or withdrawing, I should say, 7 support for a ceasefire. That is communications, if somebody 8 takes his words, like an attorney, and communicates them to the 9 media? 10 A. But isn't -- not to argue with you, but isn't it also a 11 communication if a lawyer says, my client told me that he's not 12 allowed to go to services, they put him in a cage and make him 13 sit in a cage to attend religious services? Isn't that, too -- 14 I mean, it's not like the lawyer saw this or is -- 15 Q. Correct. That's a communication as well, is it not? 16 A. That's a communication, but it's a communication that you 17 said was not prohibited a minute ago. 18 Q. I'm just asking questions, Ms. Stewart. I'm not making 19 statements. 20 A. I'm sorry. I tried to explain, maybe I wasn't clear, but 21 we -- the legal team and myself included thought that this -- 22 MR. DEMBER: Objection, your Honor, as to what the 23 team thought. Ms. Stewart can certainly testify to what she 24 thought. 25 THE COURT: All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8081 4ab3sat4 Stewart - cross 1 THE WITNESS: I thought. I'm sorry. 2 THE COURT: Go ahead. 3 A. I thought that these -- this language accommodated the 4 lawyers in doing the lawyers' work, and that included 5 statements of the Sheikh, included his conditions, etc. 6 Q. We're talking about that bubble that you referred to in 7 your direct testimony? 8 A. Yes. Yes. 9 Q. By the way, as of August of '99, had you ever talked with 10 Mr. Fitzgerald about this bubble? 11 A. No, it didn't seem to be necessary. 12 Q. You didn't? 13 A. No. 14 Q. The answer is no, OK. 15 Did you talk to anybody at the Bureau of Prisons about 16 this bubble? 17 A. No. 18 Q. Did you talk to anybody at the United States Attorney's 19 Office about the bubble? 20 A. No. 21 Q. Well, how about anybody at the Department of Justice, did 22 you talk to anybody there about the bubble? 23 A. It did not seem to be an issue. It's not like you call up 24 and say, I want to talk about -- 25 Q. The question is, did you talk to anyone at the Department SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8082 4ab3sat4 Stewart - cross 1 of Justice about the bubble? 2 A. No, I did not. 3 Q. By the way, just so we can educate the jury, the Federal 4 Bureau of Prisons is a part of the Department of Justice, is it 5 not? 6 A. That is true. 7 Q. And the United States Attorney's Office for the Southern 8 District of New York is part of the Department of Justice, is 9 that correct? 10 A. That's correct. 11 Q. In fact, all of the United States Attorneys' offices across 12 the country are part of the United States Department of 13 Justice, is that right? 14 A. Yes. 15 Q. Now, perhaps I may not have gotten some of my questions 16 earlier clear, but let me try to make it clearer for you so 17 there's an understanding: There's nothing in the SAMs that 18 prevented you from expressing your views or your opinions about 19 Abdel Rahman's conditions of confinement, were there? 20 A. No, but as I explained, it always had a context. I was -- 21 I was not just Lynne Stewart, private citizen; it was as his 22 attorney that I was expressing views. 23 Q. Understood. Now, Ms. Stewart, do you have Government 24 Exhibit 5 before you? 25 A. I do. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8083 4ab3sat4 Stewart - cross 1 Q. Would you take a look at that, please. Let's talk about 2 that for a moment or two. 3 MR. DEMBER: May I display Exhibit 501? It's in 4 evidence. 5 THE COURT: Yes. 6 Q. Now, just to orient the jury, the first page of the exhibit 7 is a Federal Express slip indicating that it was sent by 8 Federal Express to your office, is that right? 9 A. Yes. 10 Q. That's when you had your office at 21 Warren Street? 11 A. That's where it was addressed to, yes. 12 Q. And it's -- at least the Federal Express slip is dated 13 January 12, 2000, correct? 14 A. That's correct. 15 Q. Now, let's turn to page two. Do you have page two in front 16 of you, Ms. Stewart? 17 A. Page two of the document or of the SAMs? 18 Q. Of the exhibit. 19 A. OK, yes, I do. 20 Q. Now, that's, again, a cover letter from the United States 21 Attorney's Office, correct? 22 A. Yes. 23 Q. And it's dated January 12, 2000, correct? 24 A. Yes. 25 Q. And just so we orient the jury, it's sent by David N. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8084 4ab3sat4 Stewart - cross 1 Kelley, is that correct? 2 A. That's correct. 3 Q. And he's referred to as an Assistant United States Attorney 4 and chief of the organized crime/terrorism unit, correct? 5 A. Yes. 6 Q. Do you know who Mr. Kelley is? 7 A. Yes. 8 Q. And it reads, Dear counsel, on December 10, 1999, the 9 Special Administrative Measures (SAM) for your client was 10 modified and extended for another 120 days. The previous SAM 11 allowed you to communicate with Omar Abdel Rahman even if you 12 refused to sign the acknowledgement of the SAM. Section 13 (4)(b)(ii) of your client's SAM dated April 7, 1999, has been 14 modified to read as follows: 15 Once the SAM acknowledgement document has been signed 16 by the attorney, the SAM will not preclude the attorney from 17 communicating with his/her client as outlined herein, or as 18 otherwise dictated by BOP. 19 Enclosed is the modified version of your client's SAM 20 and an affirmation acknowledging receipt of the SAM. Please 21 sign the enclosed affirmation and return the original to our 22 office. 23 Now, do you remember reading that? 24 A. Yes. 25 Q. So now -- you understood that before I guess it's January SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8085 4ab3sat4 Stewart - cross 1 of the year 2000 you weren't required to sign an attorney 2 affirmation in order to communicate with your client, is that 3 right? 4 A. I assume not. It was certainly implied that it was there 5 to be signed. I can't imagine why they would have included it 6 in the package if that was not the purpose. 7 Q. Well, but certainly Mr. Kelley's letter to you here dated 8 January 12, 2000, is letting you know, well, I guess you didn't 9 have to sign that previous SAM that you signed, or the 10 affirmation, but now, in order to get access to your client by 11 way of telephone or a visit, you would have to sign the SAM, 12 correct -- I mean, the sign the affirmation, is that your 13 understanding of this letter? 14 MR. TIGAR: I'm sorry, your Honor. I object to the 15 form of the question. 16 THE COURT: Rephrase. 17 Q. Is it your understanding, Ms. Stewart, that certainly on 18 January 12, 2000, or whenever you got this letter, you 19 certainly were required to sign the affirmation if you wanted 20 to communicate with your client, Abdel Rahman? 21 A. I guess it's a sort of back-handed way of saying it, I 22 guess, but I think this came out of an objection that Mr. Clark 23 had made, which I was not really part of. But it says it will 24 not preclude you from communicating, meaning you can 25 communicate with them, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8086 4ab3sat4 Stewart - cross 1 Q. Right. 2 A. But it's sort of saying it in the negative. But if that's 3 how it's read, that's how it's read. 4 Q. You could have been precluded, but to ensure yourself 5 access to Abdel Rahman now, you'd have to sign that, to ensure 6 it, is that a fair statement? 7 A. I won't quibble with the language. I think that's a 8 meaning that it has. I'm not sure it's so clearly stated, but 9 I -- I'll take your word for it. 10 Q. Now, why don't we turn to on the first page of the 11 affirmation. Now, before we start, I think you told us the 12 last version of the SAMs we were discussing consisted of seven 13 pages, is that right? 14 A. Yes, that's right. 15 Q. How many pages does this version consist of? 16 A. Eight. 17 MR. DEMBER: May I display the SAM, your Honor. 18 THE COURT: Yes. 19 Q. And, Ms. Stewart, that's -- the first page, is it not, do 20 you have that in front of you, the first page of the SAMs? 21 A. Yes, I do. 22 Q. The page dated April 7, 1999? 23 A. Yes. 24 Q. And that indicates it's modified December 10, 1999, is that 25 correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8087 4ab3sat4 Stewart - cross 1 A. Yes. 2 Q. And a few lines down it indicates it pertains to Sheikh 3 Omar Abdel Rahman, correct? 4 A. It does. 5 Q. And just to go through the document a bit, the first 6 section talks about the interim SAM modification authority. 7 And it has a section on adherence to usual BOP policy 8 requirements. And then inmate communication prohibitions. And 9 that's section number three. Does it have number three on the 10 page? 11 A. It is. 12 Q. It appears to be very much similar to the other sections 13 with that title in the previous SAMs, is that right? 14 A. Yes, it is. 15 Q. Now we turn to the next page, and it indicates attorney 16 affirmation of receipt of the SAM restrictions document. 17 And this section, section four, or item four, that's 18 the section where Mr. Kelley indicated to you there is a sort 19 of new requirement about signing the affirmation, is that 20 correct? 21 A. Yes. 22 Q. And, again, item five is use of interpreters and 23 translators. 24 Turn the page. Page three there is an item called 25 visits, English requirement. Then attorney use of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8088 4ab3sat4 Stewart - cross 1 interpreters/translator. 2 Just by eyeballing it, Ms. Stewart, do these seem to 3 be similar to the previous sections -- or the sections of the 4 previous SAMs we just looked at -- 5 A. Sure, just let me take a minute. 6 Q. Sure, take your time. 7 A. Yes. It appears to be the same, or very similar to it. 8 Q. Let's just turn to the next page, and there's a section on 9 general rules involving telephone calls, and then telephone and 10 attorney. Again, section on improper communications and a 11 section on inmate's spouse. Relates to telephone calls 12 involving the inmate's spouse, is that right? 13 A. That's correct. 14 Q. And on the bottom of the next page, page six, there's the 15 section again on mail, is that right? And there's a section on 16 legal mail? 17 A. There is. 18 Q. And also a section on nonlegal mail? 19 A. Yes. 20 Q. And do those seem to be similar to the provisions in the 21 two previous versions of the SAMs we were talking about? 22 A. They do seem to be, yes. 23 Q. OK. And there's a section on that page involving visits. 24 And then on the last page of the document, there's, again, that 25 section, section nine, that involves communication with news SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8089 4ab3sat4 Stewart - cross 1 media. And does that appear to be written and drafted the same 2 way as the previous SAMs version that we just read? 3 A. Yes, it does. 4 Q. Ms. Stewart, why don't you turn to Exhibit 6, which is in 5 front of you. 6 MR. DEMBER: Your Honor, may I display Exhibit 6, 7 which is in evidence. 8 THE COURT: Yes. 9 Q. Ms. Stewart, this is -- the first page of this exhibit is 10 the Federal Express slip, is that right? 11 A. That's correct. 12 Q. And this is -- it's dated April 6, 2000. Do you see that 13 on the slip? 14 A. Yes. 15 Q. And this is from Mr. Butler from the US Attorney's Office? 16 A. Yes. 17 Q. Did you know who Mr. Butler was? 18 A. Another assistant, as I understood it. 19 Q. Did you know him? 20 A. I don't think so. 21 Q. There is -- the following page, next page of the exhibit is 22 the cover letter, is that right? 23 A. That's right. 24 Q. Indicating there is a SAMs and an affirmation in the 25 package? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8090 4ab3sat4 Stewart - cross 1 A. Yes. 2 Q. Do you notice it's signed by Mr. Butler? 3 A. Correct. 4 Q. Now, let me -- let's turn to the next page of the exhibit, 5 which is the attorney affirmation. 6 A. Yes. 7 Q. Would you read for us after attorney's affirmation the next 8 two lines. 9 A. This is the affirmation for Abdeen Jabara. 10 Q. I'm sorry. I have yours in front of me. Which page are 11 you on? 12 A. I have Abdeen Jabara followed by Ramsey Clark. 13 Q. Why don't you go to the one that has your name on it. Is 14 there -- 15 A. There is. 16 Q. Let's read that one. 17 A. Lynne Stewart, pursuant to 28 U.S.C., Section 1746, hereby 18 affirms under the penalties of perjury the truth of the 19 following. 20 Q. Ms. Stewart, would you read for us paragraph one up to 21 or -- up to the words "terms," the word "terms" in line four. 22 Do you see that, in the first paragraph? 23 A. Yes. 24 Q. Would you read that for us, please. 25 A. One, I am counsel of record for inmate Omar Abdel Rahman SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8091 4ab3sat4 Stewart - cross 1 (USMS#34892-054) and have read the "notification of Special 2 Administrative Measures" for inmate Omar Abdel Rahman, dated 3 December 10, 2000, and consisting of eight pages. I understand 4 the restrictions contained in that document and agree to abide 5 by its terms. 6 Q. OK. Would you go down to the second paragraph for us and 7 just read the last sentence in the paragraph two. 8 A. Paragraph two, last sentence, moreover, I shall only be 9 accompanied by translators for the purpose of communicating 10 with inmate Abdel Rahman concerning legal matters. 11 Q. And would you read paragraph three for us. 12 A. Sure. Three, I further understand that neither I nor any 13 member of my office shall forward any mail received from inmate 14 Abdel Rahman to a third person. Nor shall I use my meetings, 15 correspondence or phone calls with Abdel Rahman to pass 16 messages between third parties (including but not limited to 17 the media) and Abdel Rahman. 18 Q. And finally, the last paragraph for us, please. 19 A. The last paragraph, four. 20 Q. Please. 21 A. I understand that the Bureau of Prisons is relying upon my 22 sworn representations as a member of the bar in this affidavit 23 in affording inmate Abdel Rahman the opportunity to meet and/or 24 speak and/or correspond with me and my office, and that any 25 violation of these understandings could, among other things, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8092 4ab3sat4 Stewart - cross 1 result in further limitation (or even elimination) of inmate 2 Abdel Rahman's ability to contact me or my office. 3 Q. And obviously there's a blank line there for your 4 signature, your name. And it says, dated April, there's a 5 blank, 2000, New York, New York. Is that right? 6 A. That's right. 7 MR. DEMBER: Your Honor, may I show the witness 8 Exhibit 7 in evidence. 9 THE COURT: Yes. 10 Q. Ms. Stewart, Exhibit 7 is, in fact, a signed version of 11 that affirmation that you've just read for us, is it not? 12 A. That's correct. 13 Q. You crossed out the date or the month April, wrote in 14 May 16 and signed your name, is that right? 15 A. Yes, I did. 16 Q. And let me go back to Exhibit 6 for just a moment. 17 Ms. Stewart, Exhibit 6 has this -- on top it says notification 18 of Special Administrative Measures, and it's dated December 10, 19 1999, is that right? 20 A. Yes. 21 Q. Now, let me just go and show you Exhibit 7 again, and you 22 see in the first paragraph that you read for us the date, which 23 is read December 10, 2000. 24 That's a typo you told us about during your direct 25 testimony, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8093 4ab3sat4 Stewart - cross 1 A. Yes. 2 Q. You understood it to be a typo as well? 3 A. I don't think I probably ever even picked it up, but in 4 reviewing for the trial, yes, we did notice the typo. 5 Q. But when you signed it, you probably just -- you didn't 6 notice it? 7 A. Probably not. 8 Q. You understood that this affirmation pertained to the 9 Special Administrative Measures which were, in fact, dated 10 December 10, 1999, is that correct? 11 A. I don't -- I don't think I ever noticed it. I don't know 12 what I thought, if I didn't ever notice it, but I assumed it 13 was the Special Administrative Measures then in effect, 14 whatever date that -- 15 Q. I'm sorry, Ms. Stewart. I didn't mean to interrupt you. 16 I'm sorry. 17 My question is, though, that affirmation was 18 accompanying -- accompanied this version of the SAMs in the 19 same Federal Express envelope that came to your office? 20 A. Yes. 21 Q. OK. Now, just so we can quickly dispose of this version of 22 the SAMs, this is -- how many pages is this version of the 23 SAMs? 24 A. Eight pages. 25 Q. And the previous version was eight pages, was it not? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8094 4ab3sat4 Stewart - cross 1 A. Yes. 2 Q. And did you ever take the time at any point in time to 3 compare any of the versions of the SAMs that followed the one 4 dated -- let's look at the date -- April 7, 1999, modified 5 December 10, 1999? Did you ever compare any SAMs you received 6 after the ones that were dated, again, April 7, '99, 7 parentheses, modified December 10, '99? 8 A. I can't say definitively that I did. I may well have done 9 so, at least as to paragraphs and whether there was added to 10 any paragraph anything. But I don't think I ever went word for 11 word or had someone read them aloud as such, no. 12 Q. Did you come to realize, after receiving either this 13 version of the SAMs or the previous version we spoke about, 14 that they essentially didn't change after 1999, and those two 15 dates, that they essentially were the same? 16 A. I believe that to be true, yes. 17 Q. In fact, you didn't depict or identify any new sections in 18 the SAMs after the April '99, parentheses, modified 19 December 10, '99, SAMs did you? 20 A. I'd hate to testify affirmatively yes, but -- because I 21 never did do that kind of comparison reading. But it would 22 appear just even up here at this time that the format appears 23 to be the same and that they appear to be the same. 24 Q. Ms. Stewart, let me ask you to turn to Exhibit 11. Do you 25 have that before you? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8095 4ab3sat4 Stewart - cross 1 A. I do. 2 MR. DEMBER: And may I display Exhibit 11, which is in 3 evidence, your Honor. 4 THE COURT: Yes. 5 Q. Exhibit 11 is -- starts off with that Federal Express slip, 6 is that right? 7 A. Yes. 8 Q. And that's dated April 5, 2001, is it not? 9 A. That is correct. 10 Q. And it's addressed to Mr. Fitzgerald -- I'm sorry, it's 11 addressed from Mr. Fitzgerald, is that right? 12 A. Yes, that's correct. 13 Q. And it's addressed to Stanley Cohen, is that right? 14 A. That's correct. 15 Q. And certainly by April of 2001 Mr. Cohen was representing 16 you with respect to the SAMs and the attorney affirmations, is 17 that fair to say? 18 A. Yes, since August of 2000 he had, in fact, been 19 representing me. 20 Q. That's when -- we'll get to it later, of course, but you 21 received a letter from Mr. Fitzgerald back in August of 2000 22 informing you about the fact that he was aware of the press 23 release and stayed -- and made some statements in his letter, 24 is that right? 25 A. Yes, and -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8096 4ab3sat4 Stewart - cross 1 Q. And that followed the telephone call that you described for 2 us the other day, which -- a brief conversation you had with 3 Mr. Fitzgerald about the press release, is that right? 4 A. Yes. 5 Q. So it appeared Mr. Fitzgerald was now communicating to you 6 with respect to the SAMs and the attorney affirmations through 7 your attorney, Mr. Cohen, is that right? 8 A. That's right. 9 Q. And if we can, let's just turn to the next page of the 10 exhibit. It's -- put it up here for the jury. 11 It's essentially a cover letter like the other cover 12 letters that we've seen from Mr. Fitzgerald to Mr. Cohen 13 indicating that the SAMs and the attorney affirmations were 14 enclosed, is that correct? 15 A. That is correct. It's -- that's what the cover letter 16 says, yes. 17 Q. And there's a -- we'll just move through this rather 18 quickly, if we can. There's on the next page, the next two 19 pages a new version of the attorney affirmation that had been 20 drafted, is that right? 21 A. Yes. 22 Q. OK. And behind that are Special Administrative Measures 23 which are dated March 26, 2001, is that right? 24 A. Yes, that's correct. 25 Q. And, again, this is an eight-page version of the SAMs? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8097 4ab3sat4 Stewart - cross 1 A. This is an eight-page version of the SAMs. 2 Q. Just one last question, one question about this exhibit. 3 We see on the Federal Express slip here Mr. Cohen's address is 4 listed as 351 Broadway, third floor? 5 A. Yes. 6 Q. Was he in your office space or share an office space with 7 you at that time? 8 A. Yes. For a short period of time he was sharing space with 9 us at 351 Broadway. 10 Q. During that period of time? 11 A. Yes. 12 Q. And so that made it easier for you to communicate with him 13 about the issues involving the SAMs and the attorney 14 affirmations when he was around? 15 A. He was rarely there, but, yes, it would make it easier. 16 But picking up a telephone is not really onerous either. 17 MR. DEMBER: Your Honor, I'm about to move to 18 something different. Is this a good time? 19 THE COURT: All right. Yes. 20 Ladies and gentlemen, I told you we'd break at 2:00, 21 and it's slightly before 2:00 so we'll break for the day. 22 Ladies and gentlemen, please, please remember my 23 continuing instructions. Please, don't talk about this case at 24 all among yourselves or with anyone else when you go home over 25 the weekend -- rather, today. I'm sorry. Don't talk to anyone SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8098 4ab3sat4 Stewart - cross 1 at all. Don't talk about the case among yourselves or with 2 anyone else when you go home. Please don't look at or listen 3 to anything to do with the case. If you should see or hear 4 something inadvertently, please, simply turn away. Again, 5 don't look at or listen to anything to do with the case. 6 And finally, always remember to keep an open mind 7 until you've heard all of the evidence, I've instructed you on 8 the law and you've gone to the jury room to begin your 9 deliberations. Fairness and justice to the parties requires 10 that you do that. 11 With that, have a very good evening. I look forward 12 to seeing you at 9:30 tomorrow morning. 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 8099 4ab3sat4 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: Please be seated, all. 3 MR. TIGAR: Your Honor, before we take up the matters 4 that I know the Court may wish to take up, may I have a short 5 break. 6 THE COURT: Yes. We'll take a few minutes. 7 (Recess) 8 THE COURT: All right. 9 MR. TIGAR: I'm sorry. With respect to the wiretap 10 appeal, that was a relevance objection. I didn't think whether 11 or not they raised the wiretap issue in the Second Circuit was 12 relevant. 13 With respect to the question about Judge Mukasey, as I 14 recall, the question before that was something to the effect, 15 was the jury was present every single day; Judge Mukasey was 16 present every single day; Judge Mukasey then at sentencing said 17 such-and-such. 18 Now, of course it would be offered not for the truth 19 of any matter asserted, but simply for its effect on 20 Ms. Stewart. And it would be offered, no doubt, subject to the 21 Court's statement that the jurors are not bound by any findings 22 made by Judge Mukasey in that case. 23 However, because of who Judge Mukasey is, he is a 24 United States District Judge who sat on a bench and made some 25 findings, the risk of the jurors being able to confine the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8100 4ab3sat4 Stewart - cross 1 evidence to its proper purpose, it seems to us, is too great; 2 and that, therefore, any relevance to this matter, particularly 3 given the extent of other evidence the government has presented 4 about the various positions and the evidence that was in the 5 trial, is outweighed by the danger of juror confusion and 6 unfair prejudice. 7 The 1746 objection, I take it, relates to a matter 8 that's now withdrawn. 9 THE COURT: Yes. OK. 10 MR. DEMBER: Your Honor, in Ms. Stewart's direct 11 testimony she testified and they introduced an article from the 12 Wall Street Journal -- 13 THE COURT: Let's take the wiretap first. 14 MR. DEMBER: Oh, OK. I'm sorry, your Honor. 15 Ms. Stewart, in testifying about the wiretap, said 16 that it had been waived; that it hadn't been ruled upon; that 17 she couldn't -- that she didn't get a chance to litigate it or 18 that Abdel Rahman didn't get a chance to litigate that issue 19 because it was too late in the proceedings. That was false. 20 In fact, her testimony was, your Honor, unfortunately 21 the time for challenging those calls legally, which were 22 recorded, as you know, under the Foreign Intelligence 23 Surveillance Act had passed by the time I -- and they were 24 never challenged legally with the judge by Mr. Rahman acting as 25 his own -- Abdel Rahman acting as his own counsel or by the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8101 4ab3sat4 Stewart - cross 1 attorney who was appointed to advise him. 2 So, that's the answer she gave. Based on that answer, 3 which occurred shortly before the break, the first break we 4 took of the day, we came back and we tried to impeach her on 5 the fact that she was wrong about that. But she -- and she was 6 wrong because obviously Judge Mukasey had made a ruling on such 7 an application involving the wiretap on Abdel Rahman's phone. 8 And the point of asking, did you appeal it, because he 9 had made a ruling and that she could have challenged it, and 10 here she's telling the jury she never got a chance to challenge 11 it to begin with or he never got a chance to challenge it to 12 begin with, which was false, and they had a second chance to 13 challenge it, if they wanted to, if they thought it was 14 legitimate, if they wanted to appeal it to the Second Circuit 15 as part of the brief they filed on appeal. 16 But they're the ones who initially said, you know, 17 they never got a chance to challenge it. Well, they did get a 18 chance to challenge it. In fact, they had two chances to 19 challenge it. They could have -- they did challenging it in 20 the district court, and they could have challenged it. And she 21 portrayed it as if they never had a chance. 22 So based on all that and, frankly, the inference that 23 these calls -- those calls were, you know, improperly received 24 into evidence, which is an inference apparently the jury could 25 have drawn from her testimony before we came back with Judge SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8102 4ab3sat4 Stewart - cross 1 Mukasey's decision, based on that, your Honor, we should be 2 entitled -- we think, you know, it's a proper question to ask 3 whether she challenged it, when she acknowledged it clearly had 4 been decided by Judge Mukasey. She had another chance to 5 challenge it and she waived that opportunity, or they waived 6 it, she and the other attorneys representing him on appeal. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8103 4ab3sat4 Stewart - cross 1 4B35SAT5 2 THE COURT: Wasn't it raised on appeal? 3 MR. DEMBER: No, it was not. That's the point of the 4 cross, your Honor. 5 MR. TIGAR: Your Honor, with all respect, that's 6 simply not the testimony. 7 The testimony was that Ms. Stewart understood that 8 Sheikh Abdel Rahman said at some point before she got in the 9 case, I don't want to do this. I don't want it challenged. 10 That's her understanding of what happened. Nothing 11 that the government presented here shows that that is false. 12 And that's an outrageous statement to make, an outrageous 13 characterization. Maybe it can be argued in summation and we 14 can see what the jury would do. 15 THE COURT: Whoa, whoa. Maybe do what? 16 MR. TIGAR: I said that the statement, that the 17 assertion of what Ms. Stewart said is false, is simply not 18 borne out by the evidence that we heard today. 19 The issue here is what is the relevance to these 20 proceedings of whether or not a wiretap issue was raised on 21 appeal in the Second Circuit. 22 The issue, which was introduced by the prosecutor's 23 questions to begin with which, in our view, was quite 24 satisfactorily and consistently dealt with by Ms. Stewart, is 25 in any case one that they introduced and one of marginal SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8104 4ab3sat4 Stewart - cross 1 relevance to the whole business. 2 Ms. Stewart did not suggest that the FISA 3 surveillances were improperly received, that the FISA taps were 4 improperly made. That's not an issue in this case. 5 So, I simply fail to understand the relevance of the 6 requested information to the matters that the jury has to 7 decide. 8 MR. DEMBER: Your Honor, one of the things that 9 Ms. Stewart repeatedly stated in her direct testimony was that 10 Abdel Rahman was either improperly or unjustly convicted -- or 11 wrongly or unjustly, the two words I think she used. And she, 12 at least we thought was suggesting to the jury, that the fact 13 that she wasn't given an opportunity in her mind to challenge 14 those intercepted calls prior to trial certainly could be, one 15 could draw the inference that it is part of her thinking that 16 as to why his conviction was unjust. 17 And these are just questions that, you know -- these 18 are questions I ask. I don't see much prejudice, frankly, 19 under 403 and her response initially -- frankly it wasn't in 20 response to a direct question. She volunteered the fact that 21 they didn't get a chance. 22 I asked her about the types of evidence introduced in 23 this case including recorded conversations and she, on her own, 24 volunteered that she didn't get a chance to challenge that, 25 which was false. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8105 4ab3sat4 Stewart - cross 1 So, she introduced this whole topic, frankly, by that 2 essentially, non-responsive part of her answer. 3 THE COURT: All right. The parties can point me to, 4 if they wish, in a letter, to any relevant portion of the 5 transcript. 6 My recollection is that, in part, Ms. Stewart left the 7 possible impression and unfair inference that the admission of 8 the telephone calls was unfairly contributed to the evidence 9 against Sheikh Rahman which, when she came into the case, she 10 had no opportunity to challenge. 11 That's been explored. I would allow, in view of the 12 prior testimony, two questions: Whether in, since she was 13 involved in reviewing the briefs on appeal, whether any effort 14 was made to challenge the admission of the telephone calls on 15 appeal, to the best of her recollection. 16 I think that is one question, actually. 17 All right. Now the second issue is what Chief Judge 18 Mukasey said. 19 It was not clear to me from the record so far what it 20 is that Chief Judge Mukasey said or at sentencing or where the 21 testimony -- what the specific questions were going to be about 22 what Chief Judge Mukasey said. 23 MR. DEMBER: Well, the response, your Honor, is that 24 the evidence was overwhelming. The question would have been: 25 Did he not say the evidence was overwhelming? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8106 4ab3sat4 Stewart - cross 1 Now, the reason why we seek to introduce that, your 2 Honor -- and Judge Mukasey briefly touches upon the evidence 3 when discussing, at the time of sentencing and I have marked as 4 an exhibit Judge Mukasey's comments at sentencing so your Honor 5 and Mr. Tigar can certainly review that and see what he says. 6 In Ms. Stewart's direct testimony, in her direct case 7 she offered this Wall Street Journal article written by two 8 people who may or may not have been in that courtroom in 9 which -- it wasn't just a straightforward reporting of events. 10 It was an article that certainly gave an opinion as to the 11 evidence and some of the evidence that was introduced by the 12 government. And it was introduced, offered for Ms. Stewart's 13 state of mind. It was written at the end of the case, I think 14 towards the end, when summations had been given already. I 15 think. It was offered for state of mind. 16 And those reporters' view of the evidence as what was 17 offered and read to this jury to establish or to help prove 18 Ms. Stewart's state of mind as opposed to a Judge's view of the 19 evidence, a person who sat through the trial every single day 20 evidence was presented; that was obviously the point of those 21 questions as well as the questions I asked about the jury 22 sitting there every day of the trial when evidence was 23 presented. And Judge Mukasey, certainly, is in a better 24 position to render an opinion, so we believe. And that 25 certainly goes her state of mind. She may have rejected that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8107 4ab3sat4 Stewart - cross 1 Apparently she has. 2 But, to allow her to introduce an article which gives 3 a particular point of view and she certainly was present at the 4 time Abdel Rahman was sentenced and to not let the government, 5 in response to that article, introduce other things said by a 6 particular person who happened to be present throughout the 7 trial seems, you know, not quite right, your Honor. It is 8 certainly relevant to her state of mind. 9 And coming from, frankly, a Judge who sat through 10 every moment of the evidence, one would think it would be a 11 more credible view of the evidence than that offered by two 12 reporters from the Wall Street Journal who may or may not have 13 ever been in the courtroom itself. We have no evidence that 14 they were ever there. 15 So, that's the reason for that. That's the reason for 16 going into and asking questions about what Judge Mukasey said. 17 MR. TIGAR: Your Honor, the newspaper article was 18 offered not for the truth of what is asserted. 19 Now, when hearsay is offered we, under Rule 806, 20 sometimes go after the credibility -- to use the prosecutor's 21 word -- of the declarant. And the idea of offering something 22 not as hearsay is that the jurors are instructed that it is not 23 a statement within the meaning of Rule 801. 24 And we have, on that basis, had a number of newspaper 25 articles offered and received by the jurors and it not offered SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8108 4ab3sat4 Stewart - cross 1 to prove the truth. If it is not offered to prove the truth, 2 the inherent credibility of the speaker becomes marginally 3 relevant except insofar as it may be said to affect the mind of 4 the person hearing. 5 I simply -- I say to the Court that if we are to start 6 down this road, you know, what did different people think? 7 Well, Mr. Former Attorney General of the United States signed a 8 100 page brief and argued the case. Would his -- 9 THE COURT: I don't get the allusion. 10 MR. TIGAR: Would the appellate brief that Ms. Stewart 11 also read come in evidence also not for the truth but because, 12 after all, a former attorney general of the United States 13 probably knew what he was talking about? 14 We come back to my initial point. It seems to me the 15 prosecutor's argument proves too much. By invoking the 16 credibility of Judge Mukasey he seeks to invest this 17 non-hearsay with the characteristics of hearsay because he has 18 placed an issue: The credibility of a Judge who, if that's the 19 issue, I should be entitled to cross-examine him. 20 MR. DEMBER: To begin with, your Honor? 21 THE COURT: Yes, Mr. Dember. 22 MR. DEMBER: One doesn't get a chance to attack a 23 statement. The statement is not being offered for its truth to 24 begin with. 25 Second of all, the effect that, the fact that two SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8109 4ab3sat4 Stewart - cross 1 reporters rendered an opinion about the proof and that a Judge 2 apparently rendered an opinion which was quite different is -- 3 first of all they've sort of started this, us down this path by 4 introducing that article and introducing an opinion. It wasn't 5 just an article reporting on facts, it was an opinion piece. 6 To not be able to counter that with an opinion rendered by a 7 person who perhaps is in a better position to render an 8 opinion, the fact that he happens to be a Judge is certainly is 9 relevant to the effect it has on her state of mind. 10 THE COURT: All right. The parties have addressed the 11 issue, it seems to me, in a way that is too general. 12 The reason that I allowed the defense offer of the 13 newspaper article in the first place was because it was 14 admitted not for the truth of anything that was said in the 15 article but for the state of mind of Ms. Stewart -- offered by 16 the defense. 17 To the extent that the article did not support the 18 evidence in the government's case, which is not what the 19 article was being offered by the defendant for, it went to what 20 these newspaper reporters were saying about the credibility of 21 a witness in the trial. That witness had the witness' 22 credibility attacked in the course of the trial and the 23 parties' mutually had put in, without objection, opening 24 statements which went directly to this witness, this witness' 25 credibility and what this witness would say. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8110 4ab3sat4 Stewart - cross 1 Those opening statements were there not for the truth 2 but for the defendant's state of mind and it went to one 3 portion of the evidence in the case, the evidence in the Rahman 4 trial. 5 The value of that newspaper article admitted not for 6 the truth can certainly be challenged as it was. It's the view 7 of newspaper reporters who may or may not have been present in 8 the course of trial. The defendant was present during the 9 course of the trial and heard all of the evidence. And, 10 indeed, to the extent that the parties thought that the 11 evidence itself was really important in this case -- of course 12 for the reasons that have been argued at length before because 13 of what they show about Sheikh Rahman or the defendant's state 14 of mind with respect to allegedly providing Sheikh Rahman as a 15 resource, the parties have explored that evidence 16 independently. 17 So, then we deal with the additional evidence which is 18 being proffered with respect to Judge Mukasey's findings, and 19 there is a fair 403 argument against admitting what Judge 20 Mukasey said because it is being, while being offered under the 21 rubric of not for its truth but simply for the effect on the 22 defendant's state of mind, the arguments in favor of admitting 23 it goes to the significance and truthfulness of what the Judge 24 found. 25 I have already said and it is plain under the rules, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8111 4ab3sat4 Stewart - cross 1 that what the jury found is not binding on the defendants in a 2 criminal case who are not parties. And on the spectrum of 3 relevance, probative value of that evidence and unfair 4 prejudice, the unfair prejudice comes from the power of the 5 Judge's statement with respect to the, all of the evidence in 6 the case. 7 The danger of unfair prejudice is that the jury will 8 simply take what the Judge said in that case and accept it for 9 the truth, even though the defendants are not bound by what the 10 jury found in that case, what the judge then found could 11 arguably be used for the possibility of unfair prejudice. 12 So, weighing -- and moreover, a statement of the 13 general evidence in the case goes a lot further than simply the 14 responsiveness to an article which dealt primarily, as I saw 15 it, with the credibility of one witness in that trial. 16 In any event, when I look at the probative value of 17 what the Judge said with respect to all of the evidence in the 18 case and looked at the danger of unfair prejudice, probative 19 value is substantially outweighed by the danger of unfair 20 prejudice. 21 All right, next. 22 MR. TIGAR: Your Honor, with respect to that other 23 matter, the wiretap matter, we will look into it and send the 24 Court a letter. I know your Honor has permitted one question 25 but -- and I don't want to quarrel with that but the Court did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8112 4ab3sat4 Stewart - cross 1 express some other concerns that I really want to look back 2 into that record and address, if I may. 3 THE COURT: Sure. The government can do the same. 4 Mr. Dember, you had another issue you wanted to raise? 5 MR. DEMBER: I did, your Honor, and I don't want to -- 6 I'm not quibbling with your Honor's decision, but with respect 7 to that, Judge Mukasey's view of the evidence, I would just 8 highlight for your Honor the fact that Ms. Stewart has 9 testified more than once, I believe, that she believes he was 10 wrongly convicted and that's what -- she has told this jury he 11 was wrongly convicted or unjustly convicted -- but certainly 12 wrongly, and that's why. 13 And she has also suggested to this jury, I believe, 14 that she saw the evidence against her client being primarily 15 from that particular witness. And that's why we have taken the 16 view that since the focus is on that witness and has been from 17 her and Judge Mukasey's view of all the evidence becomes 18 relevant. 19 But, again, I don't want to reargue the point. 20 THE COURT: But, you know, it is important to focus on 21 the elements of the charges in this case and the relevance of 22 any evidence to the charges in this case and there is -- the 23 parties have gone to some effort understanding the fact that 24 some of the evidence itself from the first Rahman trial may be 25 relevant for a variety of reasons, including the defendant's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8113 4ab3sat4 Stewart - cross 1 state of mind to put in, in this case, actual evidence received 2 at the prior trial. 3 Some of these other issues are quite secondary. 4 Go ahead. 5 MR. DEMBER: Your Honor, with respect to the issue I 6 wanted to raise, during my cross-examination, Ms. Stewart 7 testified before the lunch break that the reason she believed 8 the letters from supporters or people known to Abdel Rahman 9 were subject to the attorney-client privilege. And when I 10 tried to cross-examine on that, the objection was sustained. 11 It's our view, your Honor, that her belief that a 12 letter from some private person which happens to be delivered 13 by Abdel Rahman's -- by Ms. Stewart to Abdel Rahman, doesn't 14 make it -- obviously it is not privileged, clearly. 15 And while this, I guess maybe her state of mind, your 16 Honor, we should be permitted, we think, to attack that state 17 of mind and the unreasonableness of such a statement which is 18 clearly beyond, outside the rule and the privilege that it 19 affects her credibility. And we are trying to attack it by 20 cross-examining her about what it is. 21 THE COURT: I sustained the objection to one question, 22 not the whole line of questions. And the reason I sustained 23 the objection to the single question was the question assumed 24 that the only communication that could be protected by the 25 attorney-client privilege was a communication from an attorney SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8114 4ab3sat4 Stewart - cross 1 to the client. 2 If you go back, I am reasonably confident that that 3 was the question as I understood it. And the reason that I 4 sustained the objection, because it is also reasonably clear 5 that the attorney-client privilege could include persons other 6 than the attorney himself or herself, could include, for 7 example, someone within the scope of the attorney-client 8 privilege acting on behalf, at the simplest, of someone acting 9 on behalf of the attorney. And the question was geared to how 10 could it possibly be that someone other than the attorney -- 11 MR. DEMBER: Understood. 12 THE COURT: -- was covered by the attorney-client 13 privilege. The question didn't deal with anything else. 14 MR. DEMBER: No, your Honor. 15 MR. TIGAR: That was the objection, your Honor; was 16 that it encapsulated a view of the attorney-client privilege 17 that, in our view, is simply unsupported in this district or 18 elsewhere. 19 The job of a lawyer assembling facts, dealing with 20 people and so on, and then giving advice to the client and 21 getting the client's ideas involves a great many persons. That 22 was the purpose of my objection. 23 If the government's wants to know Ms. Stewart's view 24 of the function with respect to all the people with whom a 25 lawyer deals and how far the obligation of confidentiality SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8115 4ab3sat4 Stewart - cross 1 reaches, we would not have any objection, that I can see, to 2 questions that seek her views on that. 3 THE COURT: All right, anything else? Please be here 4 at 9:00 tomorrow morning. 5 (Trial adjourned until 9:00 a.m., November 4, 2004.) 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 8116 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 4 Direct By Mr. Tigar: . . . . . . . . . . . . 7966 5 Direct By Mr. Dember . . . . . . . . . . . . 7969 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