8445 4b9esat1 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 9, 2004 8 10:00 a.m. 9 9 10 10 Before: 11 HON. JOHN G. KOELTL 11 12 District Judge 12 13 13 APPEARANCES 14 14 DAVID N. KELLEY 15 United States Attorney for the 15 Southern District of New York 16 ROBIN BAKER 16 CHRISTOPHER MORVILLO 17 ANTHONY BARKOW 17 ANDREW DEMBER 18 Assistant United States Attorneys 18 19 KENNETH A. PAUL 19 BARRY M. FALLICK 20 Attorneys for Defendant Sattar 20 21 MICHAEL TIGAR 21 JILL R. SHELLOW-LAVINE 22 Attorneys for Defendant Stewart 22 23 DAVID A. RUHNKE 23 DAVID STERN 24 Attorneys for Defendant Yousry 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8446 4b9esat1 1 (Trial continuing) 2 MR. TIGAR: Your Honor, Ms. Stewart called. She 3 called at ten minutes to 9:00, and as of that time, your Honor, 4 was stopped still in traffic in Brooklyn. We called her three 5 minutes ago and they have moved some, but they're on their way. 6 THE COURT: All right. Not a problem. I came -- 7 MR. TIGAR: And on her behalf we waive her presence, 8 your Honor. We have been in touch with her and we understand 9 that that is her -- 10 THE COURT: I was going to say, not a problem because 11 the jurors are also late this morning. I believe that neither 12 van has arrived yet and the marshal had told me that one juror 13 was late, but neither van has arrived. 14 MR. TIGAR: Your Honor, may we step out, then, and 15 call Ms. Stewart, just to reassure her that -- 16 THE COURT: Yes, absolutely. 17 MR. TIGAR: That this -- apparently there's a lot of 18 this going around, this traffic thing. Thank you. 19 Mr. Habib will do it, your Honor. 20 THE COURT: Let me just go over several things. Is it 21 all right that I do this without Ms. Stewart? 22 MR. TIGAR: Yes, your Honor. 23 THE COURT: OK. 24 MR. TIGAR: She had affirmatively, in speaking to her, 25 waived her presence, or asked us to waive it on her behalf. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8447 4b9esat1 1 And we'll do that on the record when she arrives. 2 THE COURT: I just want to make sure initially that I 3 understand the timing. 4 With respect to the York College records, I've 5 received and appreciate correspondence from the parties. When 6 will that issue -- when do I have to decide that issue? 7 MR. RUHNKE: Your Honor, we don't think by today, but 8 I think potentially by tomorrow. All of this is contingent on 9 how far we get today. 10 THE COURT: OK. 11 MR. RUHNKE: But not today, certainly. 12 THE COURT: To give you some insight into this issue, 13 Mr. Yousry's original letter to me had included the York 14 College record as a proposed exhibit. The second letter with 15 the trial exhibits did not include the York College records. 16 And I had actually thought that in response to the government's 17 letter, Mr. Yousry was simply not offering those exhibits. I 18 appreciate that he now is. 19 There was a difference, I think, between the 20 November 4th letter or a prior letter giving me exhibits and 21 the November 5th letter from Mr. Yousry's counsel, which didn't 22 include the York College exhibits. I just -- 23 MR. RUHNKE: I'm not sure why that's so, your Honor. 24 We are still offering it. 25 THE COURT: I appreciate that. I appreciate that now, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8448 4b9esat1 1 and I also appreciate that the government initially had 2 objected to these exhibits on the grounds that they were 3 irrelevant and didn't raise the hearsay objection. 4 When it was discussed yesterday, I raised the hearsay 5 objection for the first time, and I appreciate the parties 6 briefing that objection last night. I mean, the government 7 took the hearsay objection and both parties briefed that. And 8 I'm certainly prepared to listen to arguments on the York 9 College records. 10 Putting aside the hearsay objection, the government 11 says that the records are impermissible character evidence and 12 that any relevance to that possible -- any possible relevance 13 is outweighed by the dangers of unfair prejudice and confusion, 14 namely that jurors would take character of a good teacher for 15 an impermissible purpose, and that is a very brief, thin 16 summary of the argument. 17 The government's most recent letter says they didn't 18 have Mr. Yousry's letter so they couldn't respond specifically. 19 Mr. Yousry's letter points to evaluations, the gist of which 20 are that he encourages student participation, students feel 21 free to ask questions, students feel free to disagree. And 22 character evidence is normally quite limited, and the probative 23 value of character evidence is normally not great. And there 24 are limits on character evidence. Ultimately there's a 25 question of relevance and 403. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8449 4b9esat1 1 I've now reviewed all of the evaluations. And 2 certainly none of them speak specifically to the charges in the 3 case, but I'll go over this and go over the letters and 4 certainly listen to anything that the parties wish to tell me 5 on it either now or at the end of the day. 6 MR. RUHNKE: Your Honor, I think it would be better to 7 defer this until the end of the day. Let me think about your 8 comments. The timing of the delivery to the government was I 9 tried to fax it to the government about -- 10 THE COURT: Don't worry about that. That's fine. 11 MR. RUHNKE: I e-mailed it, then hand-delivered it 12 this morning. The government's fax machine was probably out of 13 paper so the process broke down. 14 THE COURT: Both of the letters appear to have been 15 sent out at about the same time. 16 MR. RUHNKE: Your Honor, so my response is let's defer 17 this until the end of the day, unless the government disagrees. 18 MS. BAKER: That's fine, your Honor. 19 THE COURT: The second issue that was addressed was 20 1729X and 1730X. And that was addressed in the government's 21 letter. It was not specifically addressed in Mr. Yousry's 22 letter. And I know that this is an issue that will not come up 23 for some time. 24 MR. RUHNKE: My understanding, again, was that the 25 government was going to voice its objections on that issue and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8450 4b9esat1 1 then we'd get a chance to respond. If I could respond by 2 tomorrow night. It's not going to come up until for sure next 3 week. 4 THE COURT: And did you want to put something in in 5 writing before then or not? Before next week? 6 MR. RUHNKE: I said -- 7 THE COURT: I didn't hear you. 8 MR. RUHNKE: I'm sorry. I wanted to reply in writing 9 by tomorrow evening. 10 THE COURT: Oh, that's fine. 11 There are cases on the whole issue of prior consistent 12 statements and improper bolstering. 13 MR. RUHNKE: And I've done a little research on it. 14 There are cases on admitting prior consistent statements not 15 for the truth, but I'd like to just address those by tomorrow 16 night, if I can. 17 THE COURT: OK. 18 MR. RUHNKE: And there's a whole issue of, what does 19 the government do to open the door to a prior consistent 20 statement? I mean, in this case the -- obviously the 21 government's not going to cross-examine Mr. Yousry to say, and 22 you never said that to anybody else, did you; because they know 23 there's an unimpeachable prior consistent statement. 24 And it seems to me unfair that a general credibility 25 attack wouldn't allow Mr. Yousry to say, hey, I said that same SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8451 4b9esat1 1 thing four years ago when I didn't know anyone was 2 tape-recording me. So that's -- 3 THE COURT: But that would only argue for the 4 admissibility on redirect rather than on direct. 5 MR. RUHNKE: That would be an argument on redirect, 6 that's correct. But I do maintain we have the right to put it 7 in on direct examination. But I'm going to write on that issue 8 so, you know, talking about it now probably doesn't advance it 9 very far. 10 THE COURT: All right. The last thing on my list was 11 whether the defendants wish any instruction on the embassy 12 bombing case. 13 MR. RUHNKE: Our general consensus is no -- not 14 general, our consensus is no. We do not want any further 15 instruction. 16 THE COURT: OK. I mean, I'm perfectly, perfectly 17 prepared to give an instruction. 18 MR. RUHNKE: Thank you, your Honor, but no thank you. 19 THE COURT: And if subsequently your view changes, I'm 20 perfectly prepared to give an instruction. 21 OK. Anything else? 22 MR. FALLICK: Your Honor, I received this last -- late 23 last night, the government's response to my application for 24 admissibility of certain -- a recording, certain recordings. I 25 would like until tonight to reply to that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8452 4b9esat1 1 THE COURT: Certainly. 2 MR. FALLICK: Thank you. 3 THE COURT: Anything else? It's -- could I talk to 4 the lawyers at the side bar just for a moment. 5 (Page 8453 sealed by order of the court) 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 8454 4b9esat1 1 (At side bar) 2 MR. FALLICK: Your Honor, I apologize. Mr. Morvillo 3 and I were watching one of the proposed exhibits. 4 THE COURT: No problem. 5 MR. STERN: Judge, no one's here for Mr. Yousry. 6 Ms. Lavine just went to get Mr. Tigar. 7 I didn't mean Mr. Yousry, I meant Ms. Stewart. 8 Someone's here for Mr. Yousry. 9 MS. SHELLOW-LAVINE: Excuse us, your Honor. Mr. Tigar 10 will be here shortly. 11 THE COURT: The marshals advise that there was an 12 accident on the BQE that has slowed things up, and one van was 13 delayed and is unlikely to be here until another 45 minutes. 14 So I thought you'd like to know that and it -- I see 15 Ms. Stewart has just arrived. 16 MR. TIGAR: Ms. Stewart is here, your Honor. 17 THE COURT: I thought that might be some, for whatever 18 it was worth, insight into why Ms. Stewart may have been 19 delayed. 20 In any event, one van for the jurors is delayed. 21 MS. SHELLOW-LAVINE: Thank you, your Honor. 22 MR. RUHNKE: Your Honor, would it be OK if we 23 adjourned until 10:30. 24 THE COURT: Yes. Absolutely. 25 MR. RUHNKE: Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8455 4b9esat1 1 (Recess) 2 (In open court; jury not present) 3 MR. PAUL: Judge, my client was just taken in the 4 back. 5 MR. BARKOW: Mr. Dember stepped out but he's going to 6 be right back. 7 THE COURT: I expect to tell the jury at the outset 8 that I understand there was some transportation delays around 9 the city this morning and we regret any inconvenience to them. 10 All right. Is everyone ready? All right. 11 Ms. Stewart is on the stand, I believe. And let's bring in the 12 jury. 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 8456 4b9esat1 1 (In open court; jury present) 2 THE COURT: Good morning, ladies and gentlemen. It's 3 good to see you all. 4 I understand that there was some transportation 5 problems around the city this morning, so we regret any 6 inconvenience to all of you in starting later. And, again, I 7 always appreciate your indulgence. 8 With that, Ms. Stewart is on the stand. Mr. Fletcher. 9 THE DEPUTY CLERK: Ms. Stewart, you are reminded 10 you're still under oath. 11 THE WITNESS: Yes. 12 THE COURT: All right, Mr. Dember. You may proceed. 13 LYNNE STEWART, resumed. 14 CROSS EXAMINATION (Continued) 15 BY MR. DEMBER: 16 Q. Good morning, Ms. Stewart. 17 A. Good morning, Mr. Dember. 18 Q. Ms. Stewart, I believe you told us in your direct testimony 19 that at some point after you had issued the press release and 20 then -- original press release and then the clarification of 21 that press release a few days later, in late July of 2001 you 22 told us about a telephone call you received from Pat 23 Fitzgerald, is that right? 24 A. That's correct. 25 Q. And you told us that in that call Mr. Fitzgerald said to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8457 4b9esat1 Stewart - cross 1 you that you had violated the SAMs by issuing a press release, 2 is that correct? 3 A. Yes. 4 Q. And he also told you -- and you told us that he told you 5 that you would not be permitted to see or speak with your 6 client, Abdel Rahman, because of that? 7 A. Yes. 8 Q. And about how long did that conversation with 9 Mr. Fitzgerald last? 10 A. Five minutes. 11 Q. And you told us that you informed him that you would have 12 an attorney get back to him, is that correct? 13 A. Yes. 14 Q. And what else did you say to him? 15 A. That's basically it. I don't recall saying anything else. 16 Q. Do you remember Mr. Fitzgerald saying anything else to you 17 at that point? 18 A. Not that I recall. 19 Q. Did you not say to him, Ms. Stewart, that, in fact, you had 20 not violated the SAMs? 21 A. No. 22 Q. Did you say to him that you were operating under a 23 bubble -- 24 MR. TIGAR: Objection, your Honor. 25 THE COURT: Sustained. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8458 4b9esat1 Stewart - cross 1 Q. Did you say anything else to Mr. Fitzgerald at that time? 2 A. No. As I said, I think the conversation was just he was -- 3 I would say sort of in an excited state. And I responded to 4 him that I understood and I would have my attorney get ahold of 5 him to discuss it further. 6 Q. And nothing else came of the conversation? 7 A. No. 8 Q. And I believe you said -- well, did you -- your attorney, 9 you told us, was this gentleman named Stanley Cohen, is that 10 correct? 11 A. Yes. 12 Q. And did you contact Mr. Cohen after that call? 13 A. Yes. 14 Q. Did you speak to him the same day you got the call? 15 A. I would say probably, or close in time. He travels a lot 16 so he might have been away, but I -- certainly close in time. 17 Q. And did you speak to Mr. Cohen before you got 18 Mr. Fitzgerald's letter of August 3rd, 2000? 19 A. No. 20 Q. It was after you received Mr. Fitzgerald's letter -- 21 A. Oh, before the letter. I'm sorry. I thought you said 22 before the call. I wasn't listening closely. Yes, oh, yes, I 23 spoke to him right after I got the phone call. 24 Q. OK. And did you -- when you spoke to Mr. Cohen, did you 25 direct him to call Mr. Fitzgerald? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8459 4b9esat1 Stewart - cross 1 A. Yes. 2 Q. And did you direct him to tell Mr. Fitzgerald that you had 3 not violated the SAMs? 4 A. He was acting as my attorney. I don't know what he told 5 him. I know that was always the position. I don't know what 6 he said to Mr. Fitzgerald. I didn't tell him what to tell him. 7 Q. Well, my question was: Did you direct him to tell 8 Mr. Fitzgerald that you had not violated the SAMs? 9 MR. TIGAR: Objection, your Honor. 10 THE COURT: Sustained. 11 MR. DEMBER: May I be heard, your Honor. 12 THE COURT: No. Let's move on. We can take it up at 13 the break. 14 MR. DEMBER: May I display for the witness Exhibit 15 26 -- Government Exhibit 2657 in evidence? 16 THE COURT: Yes. 17 BY MR. DEMBER: 18 Q. Ms. Stewart, do you see that on the monitor? 19 A. I do. I wonder if I could have a hard copy because I've 20 been told I sort of lose the microphone when I -- 21 Q. Certainly. 22 MR. DEMBER: May I approach the witness, your Honor. 23 THE COURT: Yes. 24 A. Thank you. 25 Q. Do you have it before you now? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8460 4b9esat1 Stewart - cross 1 A. I do. 2 Q. OK. The first page is your fax cover sheet, is that 3 correct? 4 A. Yes. 5 Q. And there's two more cover sheet -- fax cover sheets 6 underneath this exhibit, is that correct? 7 A. That's correct. 8 Q. And we indicated there was another cover sheet underneath 9 the first one, and the third page is also a cover sheet, fax 10 cover sheet, is that correct? 11 A. Yes. 12 Q. And after the three cover sheets is Mr. Fitzgerald's letter 13 to you of August 3rd, 2000, is that correct? 14 A. Yes. 15 Q. And let me just turn it. It's a two-page letter, is that 16 correct? 17 A. Yes, it is. 18 Q. Now -- and in this letter he essentially, again, tells you 19 that in his view you have violated the SAMs by issuing a press 20 release, is that correct? 21 A. Yes. 22 Q. And attached to that letter is a new proposed attorney 23 affirmation that he wanted you to sign, correct? 24 A. Yes. 25 Q. And below the attorney affirmation there were a number of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8461 4b9esat1 Stewart - cross 1 copies of newspaper articles that had been published in the 2 past, is that right? 3 A. That's correct. 4 Q. And that included the article by Mr. Salaheddin in which he 5 reported the initial press release, is that correct? 6 A. Yes, it did. 7 Q. Now, Ms. Stewart, besides informing you in this letter that 8 Mr. Fitzgerald believed that you had violated the SAMs by 9 issuing the press release, he made reference, did he not, to 10 the fact that -- in the first paragraph towards the end he made 11 reference to the incident involving Luxor, Egypt, correct? 12 A. Yes, he did. 13 Q. And then in the second paragraph on the first page he 14 writes, the intent of the Special Administrative Measures is to 15 deprive Abdel Rahman, convicted of terrorism offenses, of 16 communication facilities and equipment. Abdel Rahman has been 17 afforded a right to meet with counsel which should not be 18 abused to -- and then the second page reads -- allow Abdel 19 Rahman to pass messages which, simply put, can get people 20 killed and buildings blown up. 21 And then in the last paragraph he writes, this office 22 is recommending to the Office of Enforcement Operations of the 23 Department of Justice that you must execute an amended 24 affirmation recognizing the severity of the consequences of a 25 violation of the Special Administrative Measures before any SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8462 4b9esat1 Stewart - cross 1 more legal visits can even be contemplated. And he indicates 2 that he encloses an affirmation. 3 Now, by that language was he not informing you -- was 4 it not your understanding, certainly by that point in time, 5 that in order to change the language of the affirmation 6 Mr. Fitzgerald had to get the approval of the Office of 7 Enforcement Operations of the Department of Justice? 8 A. I think I lost the thread of your question, Mr. Dember. 9 I'm sorry. 10 Q. After you received this letter -- you read the letter, did 11 you not? 12 A. Yes. 13 Q. OK. And after you read the letter, was it not your 14 understanding that in order for Mr. Fitzgerald to amend the 15 proposed affirmation that he attached to this letter, that he 16 needed to get the approval of the Office of Enforcement 17 Operations of the Department of Justice? 18 A. Yes, but he said that this was his recommendation. 19 Q. Right. 20 A. But, yes, he had to -- yes. 21 Q. My question was: Was it your understanding he needed the 22 approval of some other authority in order to change the 23 affirmation? 24 A. Yes. 25 Q. And did you see at the bottom of that second page the name SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8463 4b9esat1 Stewart - cross 1 Michael Brave, Office of Enforcement Operations, Department of 2 Justice? 3 A. Yes, I did see that. 4 Q. And did you take note of that when you got this letter and 5 read it back in August of 2000? 6 A. I can't say that I took note of it. I probably noticed who 7 the ccs are to, but the name Michael Brave didn't mean anything 8 to me particularly. 9 Q. Well, after you got this letter, did you yourself contact 10 the Office of Enforcement Operations to discuss the new 11 affirmation or the Special Administrative Measures? 12 A. No, I didn't contact anyone. 13 Q. Well, did you direct your attorney, Stanley Cohen, to 14 contact the Office of Enforcement Operations of the Department 15 of Justice to discuss the new attorney affirmation and the 16 Special Administrative Measures? 17 MR. TIGAR: Objection. 18 THE COURT: I'll sustain the objection. I'll take it 19 up later, or we can take a break now. 20 MR. DEMBER: Well, your Honor, I think we should take 21 a break now. I'm requesting that. 22 THE COURT: Ladies and gentlemen, let's take a break. 23 Please remember my continuing instructions not to talk about 24 the case. Keep an open mind. 25 (Continued on next page) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8464 4b9esat1 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: All right. Mr. Tigar? 3 MR. TIGAR: Well, your Honor, there are really two 4 separate issues. The first was, what did she say to 5 Mr. Fitzgerald such-and-such. And, of course, her silence in 6 the face of an accusation by an officer of government clothed 7 with Mr. Fitzgerald's power is inadmissible; that is to say, no 8 inference may be drawn from it, particularly in the context 9 here that she simply said, well, I'm going to get a lawyer. So 10 that was the first one. I was going to ask for an instruction 11 on that, that no inference could be drawn from her silence in 12 the face of the accusation. 13 Second is that although Mr. Cohen has testified, I am 14 not under the impression that Ms. Stewart presented, in 15 presenting Mr. Cohen, any of their lawyer-client 16 communications. I don't think we waived the lawyer-client 17 communication -- or lawyer-client relationship here. So the 18 instruction is that I'm objecting to questions involving 19 conversations between Ms. Stewart and her counsel. 20 And third, regardless of that, there is no good faith 21 basis for that last question. Did Ms. -- I mean, 22 Mr. Fitzgerald had the only handle on the jack, your Honor; 23 that is to say, Mr. Cohen was directed to go talk to the person 24 that had the power to execute an affirmation, and all the 25 correspondence was with Mr. Fitzgerald. Mr. Brave in OEO never SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8465 4b9esat1 Stewart - cross 1 appeared in that. We had a big hearing about it. Government 2 counsel knows perfectly well that Mr. Fitzgerald is the one 3 that had the power to do that and did it and entered into the 4 discussions. So that's -- those are the three legal issues 5 we're trying to get at. 6 MR. DEMBER: Your Honor, with respect to the first 7 issue, where I asked Ms. Stewart -- I was going to ask 8 additional questions until your Honor stopped me -- as to 9 whether she had said certain things to Mr. Fitzgerald during 10 that phone call to suggest that it was improper or -- and 11 there's case law on this, too, your Honor, that it was improper 12 and that she had a right to remain silent, if that's what 13 counsel is implying or suggesting that your Honor instruct the 14 jury. She certainly was not in custody at the time. She was 15 free to say whatever she chose to say to Mr. Fitzgerald. There 16 is no instruction. 17 There is nothing, we suggest, wrong with any of those 18 questions, your Honor, inquiring about what she said or did not 19 say to Mr. Fitzgerald. Logical things that she would -- one 20 might expect her to say under those circumstances, presumably, 21 were not said. Things like, I did not violate the SAMs, 22 Mr. Fitzgerald. Don't you remember, don't you understand, I'm 23 operating under a bubble? Don't you understand that the SAMs 24 contemplate that I can defend my client vigorously and issuing 25 this press release was such an act of a defense attorney in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8466 4b9esat1 Stewart - cross 1 doing so? 2 These are logical questions or statements that a 3 person in Ms. Stewart's position at that time in talking to 4 Mr. Fitzgerald could have said. The jury, we think, 5 appropriately could consider the failure to say such things as 6 evidence of consciousness of guilt. She can certainly testify 7 in redirect as to why she said nothing else to Mr. Fitzgerald. 8 The jury, we believe, should be allowed to draw the logical 9 inference that she didn't say those things to Mr. Fitzgerald 10 because she wasn't thinking about those things at that time; 11 that this bubble concept didn't exist back then. That's the 12 purpose of those questions. 13 To suggest that she had some kind of -- there's some 14 legal impediment and some legal instruction that should be 15 given to this jury about those kinds of questions and that kind 16 of inquiry is, frankly, unsupported by any law whatsoever. She 17 didn't say those things. Those, we submit, are appropriate and 18 probative questions. They establish, we believe, that the way 19 she has testified in this court to date is based on 20 fabrications which occurred much later on, and didn't say it 21 at a time when one would logically say such a thing to 22 Mr. Fitzgerald. 23 If she has another explanation, she can put that out 24 in her redirect testimony and the jury can balance and weigh it 25 and make a determination. She was not in custody. She didn't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8467 4b9esat1 Stewart - cross 1 have a right to remain silent. That whole concept doesn't 2 exist at that point in time. And for that reason, we believe 3 we should be entitled to ask those questions and we believe 4 that no jury instruction is appropriate with respect to those 5 questions. 6 Your Honor -- I've lost track, your Honor. The next 7 topic, issue is -- 8 THE COURT: Consultations with Stanley Cohen and 9 whether the privilege has somehow been waived. 10 MR. DEMBER: It certainly has been waived, your Honor. 11 It certainly has been waived in the context of an exhibit that 12 Ms. Stewart offered, was going to -- had proffered, actually, 13 before the start of her testimony, which eventually was not 14 offered by her. 15 And the exhibit, your Honor, is -- just looking 16 through my list here, your Honor -- the exhibit is a 17 February 23rd, 2001, memo from Ms. Stewart to Mr. Cohen in 18 which Ms. Stewart essentially is proposing language which 19 Mr. Cohen eventually puts into a letter to Mr. Fitzgerald 20 proposing different language for the attorney affirmation that 21 had been proposed, originally proposed in August of 2000 by 22 Mr. Fitzgerald in which Ms. Stewart refused to sign. And she 23 proffered this as an exhibit that they would offer. 24 I'm not finding the exhibit with Ms. Stewart's exhibit 25 number on it in my list. But we've got it from them, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8468 4b9esat1 Stewart - cross 1 Honor. It was proffered. We objected to it. And it 2 apparently just was never offered in the defense case. This, 3 your Honor, is a clear in our view waiver of the privilege, 4 since she provided it to us, and it deals with her 5 communications with her lawyer regarding the affirmation and 6 these events that took place starting in August of 2000. 7 Ms. Baker reminds me it's LS307. It is -- it was an 8 exhibit that we objected to in our correspondence and, again, 9 it was never offered. 10 MR. TIGAR: Your Honor, let me take the last -- oh, 11 I'm sorry. I didn't know counsel was not finished. 12 THE COURT: All right. 13 MR. DEMBER: Your Honor, Mr. Barkow reminds me he has 14 just, in his research, found precedent going back to the 1920s, 15 I believe, which he can recite the cases for your Honor dealing 16 with a prearrest silence and where it's appropriate to 17 cross-examine defendants or witnesses with respect to that 18 prearrest silence. 19 I'm blocking, your Honor, on the third issue Mr. Tigar 20 raised. Mr. -- 21 THE COURT: No good faith belief for the question as 22 to whether there was any contact -- no good faith belief for 23 contact with the office of enforcement. 24 MR. DEMBER: Your Honor, the good faith basis is the 25 letter she received and read. The questions were, did you take SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8469 4b9esat1 Stewart - cross 1 action? Did you contact them? Or did her lawyer? Did you 2 ask -- 3 THE COURT: Those questions were -- those questions 4 were allowed. They then -- it then came to questions with 5 respect to Stanley Cohen. 6 MR. DEMBER: And the question was, did she direct him? 7 And it's our view, certainly, that certainly with exhibit -- 8 with what was her Exhibit 307, she has waived this 9 attorney-client privilege, certainly with respect to that 10 document but with respect to these matters, your Honor. 11 We'd also note, your Honor, that when we had the 12 hearing last September in which Ms. Stewart called as a 13 witness Stanley Cohen to testify about a supposed implied 14 nonprosecution agreement, that privilege was waived. Mr. Cohen 15 testified about what he did and his communications, I believe, 16 with his client. And the privilege was also waived with 17 respect to -- as a result of that testimony. 18 We would also believe, your Honor, that in her own 19 testimony in direct in this case, she waived the privilege by 20 talking about and testifying about the negotiations that 21 occurred between Mr. Cohen and the government that resulted in 22 an affirmation or resulted in her eventually signing the 23 affirmation on a provisional basis allowing her to go in and 24 speak with her clients in July of 2001 and then getting his 25 approval. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8470 4b9esat1 Stewart - cross 1 So that has all been gone into by the defense in 2 Ms. Stewart's direct testimony, and we're now obviously 3 probing -- asking probing questions about what was going on 4 behind that, to see what was done or what was not done. And we 5 believe, obviously, these are rather probative questions as to 6 whether or not directions were given about relevant conduct 7 that should or could have been taken to deal with these issues. 8 THE COURT: All right. 9 MR. TIGAR: Your Honor, we have not claimed this is 10 custodial interrogation. That's, of course, not the issue. 11 The question is what inference may properly be drawn 12 from silence in the face of an accusation by a government 13 prosecutor to a lawyer who announces, you have committed 14 misconduct. As a result of the misconduct that I allege, you 15 will not be permitted to see your client again except on 16 conditions that will be set. 17 Now, any lawyer in the room who's ever been accused of 18 misconduct or -- by a prosecutor particularly, but also by a 19 disciplinary authority, knows that what happens at that moment 20 is that you instantly have a conflict. You have a potential 21 conflict between your interest and the interest of your client. 22 It is, therefore, incumbent on you to protect your client's 23 interests at all costs. And the better view is to go seek 24 counsel to make independent judgment about what you, the 25 lawyer, ought to do while you're defending the client. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8471 4b9esat1 Stewart - cross 1 Thus the inference from silence that the government 2 seeks to draw -- that this whole thing is a fabrication, that 3 she had an obligation to speak then, that she should have said 4 something, that is -- what that does is permit the jury, 5 invites the jury to make an inference that is, quite frankly, 6 impermissible; impermissible in the sense that time out of 7 mind, the idea that silence could ever be the basis for an 8 inference, is questionable at best, but particularly under 9 these circumstances. 10 And here what we have is a prosecutor making an 11 allegation: You did this. And, of course, because it is 12 governmental interrogation and accusation by government, there 13 is also a Fifth Amendment component to that. She had the 14 absolute right to be silent in the face of that accusation, 15 whether she was in custody or not in custody. And no adverse 16 inference can be drawn from her decision to be silent at that 17 moment. 18 I think, your Honor, the closest case is Lefkowitz vs. 19 Cunningham. The Court may recall that -- I'm sorry, your 20 Honor. 21 THE COURT: Go ahead. 22 MR. TIGAR: That Patrick Cunningham, the president of 23 the Democratic Party of New York, was called before a grand 24 jury and refused to waive immunity. And under New York 25 Election Law, Section 22, he was thereby automatically stripped SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8472 4b9esat1 Stewart - cross 1 of his party post. 2 And the Supreme Court held seven to one or seven to 3 two that the adverse consequence of his decision to be silent 4 in the face of Prosecutor Nadjari's accusation could not be the 5 basis for any punishment. And the Court distinguished that 6 prison discipline case of Baxter vs. Palmigiano and relied on 7 the earlier cases, such as Sanitation Men. That's what I 8 understand to be the law. 9 Now, I know that with respect to custodial silence, 10 there are circumstances under which silence may become 11 relevant. I suggest those are not presented here. 12 With respect to -- 13 THE COURT: Noncustodial. 14 MR. TIGAR: Pardon me? 15 THE COURT: Noncustodial. 16 MR. TIGAR: Noncustodial. No, I'm saying there are -- 17 the cases I remember are custodial cases, but, again, we 18 don't -- I don't have the books here. I'm just relying on 19 memory, your Honor. I do remember Lefkowitz. 20 The alleged waiver, by proffering Exhibit 307, Exhibit 21 307 was seized by the government from Ms. Stewart's office. 22 That -- and it bears a Bates number. I don't know the special 23 master history of it, but we did decide not to offer it. 24 That's true. So it hadn't been offered. 25 As to whether revealing it to the government is a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8473 4b9esat1 Stewart - cross 1 waiver, I don't think under the complex circumstances of all of 2 the proceedings here it can be regarded as a waiver. And with 3 respect to Mr. Cohen's testimony, I don't recall, although my 4 memory could be faulty, that we proffered Mr. Cohen and said, 5 now he's going to tell everything about his conversations with 6 his client. The purpose of proffering Mr. Cohen was what 7 agreement he had made with Mr. Fitzgerald, based on 8 conversations with Mr. Fitzgerald that weren't privileged. I 9 admit there's a difficult question, but we don't think there's 10 a waiver here. 11 And finally, Ms. Stewart's direct examination was very 12 careful. She didn't say, well, Mr. Cohen advised me to do this 13 and then I told him that and so on. She said, I got the 14 successive drafts, Mr. Fitzgerald backed down -- not Mr. Brave, 15 by the way, Mr. Fitzgerald backed down. And after 16 Mr. Fitzgerald sent me something, we agreed with him, and 17 with nobody else, by the way, and we signed it. 18 So I respectfully submit, A, no waiver; but B, given 19 the history of those negotiations, my good faith point would 20 stand. 21 THE COURT: I don't recall the testimony at the 22 hearing to determine whether there was a waiver. I don't 23 remember whether -- and the parties don't have the transcript 24 for me at this point. It may be that there was a waiver of the 25 attorney-client privilege between Ms. Stewart and Mr. Cohen, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8474 4b9esat1 Stewart - cross 1 but I'm not going to say that without looking at the 2 transcript. I have to rely in -- to some degree, until the 3 parties show me the transcript, that there was an intent, if 4 this is correct -- and we can go back to the transcript -- not 5 to waive the privilege with respect to conversations between 6 Ms. Stewart and Mr. Cohen at the original hearing. 7 And we can leave that -- we can leave that open as to 8 whether there was a con -- as to whether there was testimony 9 about the conversations between Ms. Stewart and Mr. Cohen, and 10 similarly on direct. The defense counsel says there was a 11 deliberate decision not to waive the privilege as between what 12 Ms. Stewart and Mr. Cohen were saying together. And we can go 13 back over the transcript. 14 And with respect to LS307, I'll take the 15 representation that that was a document that was seized and 16 didn't, in and of itself, waive the privilege. 17 MR. DEMBER: Your Honor, with respect to that, it was 18 seized by the agents. It went through the process, the special 19 master process. The special master, I believe, determined it 20 was privileged. It was not turned over until Ms. Stewart gave 21 it to us prior to her testimony as a proposed exhibit. 22 I'm sort of at a loss to understand how, once she does 23 that, she doesn't waive the privilege. She made a 24 determination for whatever reason that it was beneficial to her 25 defense to proffer that as an exhibit, and she gave it to us. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8475 4b9esat1 Stewart - cross 1 Therefore, she made a deliberate decision to clearly waive the 2 privilege as it pertains to that document. Nobody forced her 3 to. 4 The fact that it was seized really is somewhat 5 meaningless, because it was determined to be privileged and the 6 government was not permitted to have it. We only got it when 7 Ms. Stewart and counsel decided we should have it when they 8 proposed it as an exhibit. That seems to be a clear waiver, a 9 decision on their part to waive the privilege with respect to 10 this document and consider using it at trial. They chose not 11 to, but the fact that they choose not to doesn't mean they 12 haven't waived it, once they clearly made a deliberate decision 13 to provide it to us. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8476 4B95SAT2 1 MR. DEMBER: Your Honor, with respect to the first 2 issue that's been raised, which is the silence, Mr. Barkow has 3 found cases, many cases, that clearly establish that 4 questioning about pre-arrest silence is permissible. 5 The case that Mr. Tigar cites is apparently one in 6 which Mr. Cunningham went before a grand jury. It's a 7 completely different situation, your Honor; clearly 8 distinguishable for that reason alone. 9 MR. BARKOW: Your Honor, if I may just tell the Court 10 a few cases that I found in just about five minutes of looking. 11 In 1926 the Supreme Court held in the Raffel case that 12 use of -- 13 THE COURT: Look. You can give me the cases. I can 14 look at them at the lunch hour. 15 At the time that I sustained an objection to further 16 questioning it was after the government had already elicited 17 from Ms. Stewart that she didn't recall, other than having a 18 brief conversation with Mr. Fitzgerald, that she was informed 19 that she would not be permitted to see Sheikh Rahman. She 20 informed Mr. Fitzgerald that she would have an attorney call 21 him. She did not say that she had not violated the SAMs. 22 The question then is whether further questioning about 23 all of the things that she did not say is simply an effort at 24 summation at that point when she had already said that she 25 doesn't recall saying anything else, she did not recall saying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8477 4B95SAT2 1 that she had not violated the SAMs, which is when I stopped 2 that line of questioning. 3 I will certainly look at the cases, whether there is 4 any further examination and I doubt that there is any 5 instruction with respect to any inference at that point, but 6 I'm certainly happy to look at any cases on either side. 7 What is the answer with respect to the prior testimony 8 at the hearing and the prior testimony on direct as to whether 9 Ms. Stewart waived any privilege with respect to conversations 10 with Mr. Cohen, or does the government rely solely on 307? 11 MR. BARKOW: Your Honor, Ms. Baker is reviewing that 12 testimony right now and so we are hoping to answer that as soon 13 as we can. 14 I can provide the Court with the citations to the 15 cases that I was going to refer to. 16 First is the Raffel case -- 17 THE COURT: I -- 18 MR. BARKOW: Or not. 19 THE COURT: I would really like to have the jury 20 continue and to deal with this at lunchtime, unless it is 21 disruptive to the progress of the cross. 22 MR. DEMBER: May I have a moment, your Honor, just to 23 look at my outline? 24 THE COURT: Sure. 25 MR. TIGAR: Your Honor, there is also the point that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8478 4B95SAT2 1 the questions about, Did you tell Mr. Cohen to tell 2 Mr. Fitzgerald, which was the question I think to which the 3 latest in the series of objections raises the same issue as at 4 the beginning. 5 I want to underscore that. That's independent of the 6 privilege issue. 7 MR. DEMBER: Your Honor, I appreciate the desire and 8 the need to bring the jury back in and try to be productive 9 during their time but, essentially, your Honor, we are coming 10 towards the end of my cross-examination. There is a series of 11 questions that, frankly, really rely upon rulings in this area 12 to go to the next step. And once that happens, I'm done with 13 this area of my cross-examination. 14 But to break it up this way, to move on just is, I 15 don't think, fair to the presentation, frankly. And this is 16 the first time I have asked the Court to do this but I do 17 believe we do need to have these issues resolved before I 18 continue. 19 THE COURT: What is your good faith answer to whether 20 there was a waiver? 21 MR. TIGAR: My answer, your Honor? 22 THE COURT: First of all, at the prior hearing; and 23 secondly, in the course of the direct. 24 MR. TIGAR: Your Honor, my memory is always subject to 25 correction but our thought was at the earlier one, that we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8479 4B95SAT2 1 would put on Mr. Cohen and he would describe his interaction 2 with Mr. Fitzgerald. And obviously we were going to have to 3 rely on an inference that Mr. Cohen would have told Ms. Stewart 4 what he thought because if, at the end of the day, it was her 5 intent. 6 And I recognize, your Honor, that that poses an issue 7 as to whether inferentially there is a waiver there. But it 8 was a deliberate decision not to put Ms. Stewart on at that 9 hearing, which we could very freely have done, you know. It 10 would be a Simmons-type question. 11 THE COURT: Did Mr. Cohen testify at the first hearing 12 about what he told Ms. Stewart? 13 MR. TIGAR: I'm -- 14 THE COURT: About this conversation? 15 MR. TIGAR: I am sure, your Honor, that it was at 16 least -- at least inferrible and it was an inference that I 17 knew the Court would draw and wanted the Court to draw that he 18 did tell her what Mr. Fitzgerald had told him. 19 But that's an inference that arises from the client 20 relationship. He had an obligation to do it. 21 As I say, this is quite independent of the question 22 why Mr. Dember wants to ask what she told Mr. Cohen. If it's 23 only did you tell Mr. Cohen to tell Mr. Fitzgerald then it 24 becomes this same thing about inferences from silence. 25 Plus the fact, of course, that once Mr. Cohen is the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8480 4B95SAT2 1 lawyer he gets to decide what to tell Mr. Fitzgerald. 2 THE COURT: The question is It is not silence, it is 3 what did Ms. Stewart tell Mr. Cohen and the question is Was 4 there a waiver? Was there a waiver at the first hearing? Was 5 there a waiver in the course of direct? Did Ms. Stewart 6 proffer what her conversations were with Mr. Cohen? Or not? 7 MR. TIGAR: I have answered the question to the best 8 of my recollection. I candidly tell the Court that it is a 9 natural and logical inference from the evidence we presented in 10 September of 2003 that Mr. Cohen did tell Ms. Stewart the 11 contents of his conversations with Mr. Fitzgerald and did tell 12 her that he thought he had a deal. I don't run from that. It 13 was a necessary element or ingredient of the argument we were 14 then making to your Honor. 15 But when your Honor says the question is, there is 16 still a question left over even if your Honor decides there has 17 been a waiver. 18 THE COURT: The parties have to give me the transcript 19 to reflect whether there is a waiver, either on direct or prior 20 hearing. And at the prior hearing there was not only the 21 testimony of Mr. Cohen, there was also an affidavit submitted, 22 I believe, by Mr. Cohen in support of that. 23 I have trouble thinking that the parties don't know 24 the answer to this because parties must have gone into the 25 discussion of touching on Mr. Cohen with the thought as to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8481 4B95SAT2 1 whether those conversations were going to be open or not open, 2 and what of those conversations was going to be revealed at the 3 first hearing in the course of the trial. And the parties 4 should know the answer to that. 5 MR. TIGAR: Your Honor, let me add this. 6 In every case, with an intent element such as the one 7 we have here, there is the prospect of an advice of counsel 8 defense, that is, you always ask the question of client, Well, 9 who did you talk to? 10 We don't have that here. We are not relying on advice 11 of counsel defense. We have never tendered advice of counsel 12 defense. We have never tendered a lawyer to give any such 13 elements, any element such as the mental element of the offense 14 which is the only element as to which a lawyer would have 15 testimony. And I'm sure that your Honor has -- you know, 16 everybody in this room has tried cases where that's been an 17 ingredient. 18 So, we decided that. 19 Now, with respect to these Bates Stamp documents I 20 have always wondered, you know, about the Wall team. And 21 that's been litigated and so on. And I don't really take the 22 Wall team seriously. I don't think it matters but I understand 23 that some people do. 24 With respect to the motion that we made, it was an 25 issue, your Honor. And I knew then that we had, this was going SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8482 4B95SAT2 1 to be a question. Is this a waiver? 2 And now I'm saying today, well, I don't think we did. 3 Again, I have to go back and read the transcript. It may well 4 be that with my recollection I will read something and I will 5 say, well, no that's not so. But I'm not hiding the ball from 6 your Honor. We did perform this analysis. And that's where we 7 are. I don't think government counsel really cares about 8 knowing everything that Lynne Stewart said to Stanley Cohen. 9 All he is trying to do is beat the drum on whether or 10 not she said to Stanley Cohen, Go over there and, you know, 11 tell him that, you know, in a state of high dudgeon that I 12 didn't violate the SAMs. 13 MR. DEMBER: Your Honor, we can bring more of this to 14 your attention but I'm looking at the transcript from October 15 28th of this year and there is a question asked by Mr. Tigar, 16 and I will read it, the question was: 17 "Q Now, did you think that that was going to be the last word 18 on SAM affirmations? What was the reason for agreeing with the 19 government to sign that particular document?" 20 By Ms. Stewart: 21 "A Stanley Cohen, on my behalf, had told Mr. Fitzgerald that 22 we had to see him in order to have him tell us, meaning him, 23 the Sheikh, whether or not he wanted us to sign on to this even 24 as it was then constituted." 25 And the answer goes on, your Honor, but part of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8483 4B95SAT2 1 answer is she has testified that Mr. Cohen, on her behalf, told 2 Mr. Fitzgerald clearly what she had told him. Mr. Cohen didn't 3 make it up out of thin air, he had gotten it from her. And 4 that is, clearly, a part of her conversation with Mr. Cohen. 5 By offering that testimony she has certainly offered 6 to this jury part of her conversations with Mr. Cohen about 7 what she told him to say to Mr. Fitzgerald. Why doesn't that 8 allow me to ask questions like, Well, did you direct him to say 9 the following to Mr. Fitzgerald about the SAMs? Or about the 10 bubble? Or about your view of her interpretation of the SAMs? 11 She has, in her own testimony, before this Court and 12 jury, clearly indicated so. 13 I am reading this off of the screen, your Honor, so I 14 don't have a page number at the moment but I will certainly 15 have it. Your Honor, the answer that I just read -- I'm sorry, 16 we also have another point in time where Ms. Stewart talked 17 about her conversations with Mr. Cohen and I have it on the 18 actual transcript itself, it's at page 7909 and the answer is 19 at line 14 on that page and it says: 20 "Well, Stanley is Stanley Cohen who is the lawyer that 21 was handling this matter for me that I first contacted back in 22 August. And he had been away and he was on his way into the 23 country and I suggested that we could try to get one phone call 24 at least under the provisional -- as I understood it was going 25 to be -- signing of the SAMs." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8484 4B95SAT2 1 Again, your Honor, that is just yet another example of 2 Ms. Stewart talking about, essentially, a conversation that she 3 had or was going to have -- she had with Mr. Cohen about his 4 dealings with Mr. Fitzgerald. 5 Those are just two examples from her testimony in this 6 trial, your Honor, where she has essentially opened the door 7 to, and offered conversations, essentially, that she had with 8 Mr. Cohen on how he should deal with Mr. Fitzgerald and what he 9 should say to Mr. Fitzgerald on her behalf. 10 So, your Honor, obviously it is our view that we 11 should be able to ask her what else she asked or directed 12 Mr. Cohen to do on her behalf in dealing with Mr. Fitzgerald 13 and the questions that had been asked that I was going to ask 14 fit into that category. 15 MR. TIGAR: Your Honor, this is truly, truly a 16 misstatement of what goes on. 17 Yes, at page 7909 and 7914 those things were said. 18 Why? Because the government intercepted a phone conversation 19 between Ms. Stewart and Mr. Sattar in which she said, I'm 20 getting a one-time only visit with the Sheikh. 21 Stanley Cohen's name is all over that call, all over a 22 number of the calls, and then at the prison visit the Court 23 will recall the question of whether she should sign the 24 provisional SAM or not is raised with the client. 25 So, the door that got kicked open was kicked open by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8485 4B95SAT2 1 the government's interception of the phone calls. 2 Ms. Stewart here isn't saying, you know, I had a 3 conversation with Mr. Cohen, he advised me. She is simply 4 picking up a reference to the phone calls that the government 5 had already offered in evidence. How that can be construed as 6 the intentional relinquishment of a known right is beyond me. 7 Intentional relinquishment of a right or waiver means that you 8 had a choice. That is, you could say, I will let this out, I 9 won't let this out. 10 This is simply a discussion of a fact that's already 11 in evidence. 12 MR. DEMBER: Your Honor, Ms. Stewart could have 13 challenged those recordings if she wished if she thought that 14 her attorney-client privilege had been violated and prevented 15 us from using such calls. She didn't. 16 Whether the fact that Mr. Tigar asked the questions 17 and Ms. Stewart gives the answers in her testimony, whatever 18 the reason behind it is has nothing to do with whether or not, 19 when she did testify, she testified about her conversations 20 with Mr. Cohen on how to deal with Mr. Fitzgerald. 21 Yet again, your Honor, I have another example on page 22 7914 when Ms. Stewart states, on line 1 of that page: 23 "A Stanley Cohen, on my behalf, had told Mr. Fitzgerald that 24 we had to see him in order to have him tell us -- meaning him, 25 the Sheikh -- whether or not he wanted us to sign on to this. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8486 4B95SAT2 1 Even as it was then constituted. He very well might have said 2 no, I don't want you to; although his position pretty regularly 3 was signing anything, but please come to see me. But at least 4 we had put this to Pat Fitzgerald that we had to get to see him 5 in order to get his input into this." 6 Yet another example of Ms. Stewart testifying about 7 her conversation with Stanley Cohen as to what to say to 8 Mr. Fitzgerald. 9 MR. TIGAR: Your Honor, that's the same one he read 10 before, so we're still at two. That's 7914, that's what he had 11 before. And all that says is Stanley Cohen, on my behalf, had 12 told Mr. Fitzgerald. It doesn't relate any conversation. And 13 then the rest of the context is the Sheikh might. And so forth 14 and so on. The context is the context that I mentioned before. 15 THE COURT: Mr. Dember, I will look at the cites. 16 There should be more. I will look at the cases. I would, 17 again, prefer to use up the time with the jury on other 18 subjects, otherwise we are going to be breaking for lunch. 19 MR. DEMBER: Your Honor, frankly it just, this is a 20 whole line of questioning. To jump to something else -- well, 21 if I may have a moment, your Honor. (Pause) 22 It is truly breaking up the whole cross-examination at 23 this point, your Honor. 24 THE COURT: While you are doing that, Mr. Barkow? 25 MR. BARKOW: Yes, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8487 4B95SAT2 1 THE COURT: What are the cases you want me to look at? 2 MR. BARKOW: There are three, your Honor. 3 The first is Raffel of United States, 271, U.S. 594, 4 595 ---I'm sorry, let me back up. 271 U.S. at 494, 495-497; 5 Jenkins v. Anderson, 100 Supreme Court -- I don't have the U.S. 6 cite here -- 100 Supreme Court 2124 at 2127 and 28; and within 7 the Jenkins case it cites Grunewald v. United States, 353 U.S. 8 391, 420, which discusses a little bit of the scope issue of 9 cross-examination basically saying that the Raffel Court 10 concluded that the defendant was subject to cross-examination 11 impeaching credibility just like any other witness. 12 The Raffel case, if I could make one point about that 13 and then I will leave you with the citations -- the Raffel case 14 involved a situation where a defendant was tried twice and in 15 the first trial did not testify and in the second trial was 16 impeached with the failure to testify in the first trial. And 17 that was held to be proper. 18 If that is proper then -- that was permitted and not 19 found to be in violation of the constitution. If that was 20 permitted -- the recent case law talks about pre-arrest 21 silence. But if you put that at one end and the Rafell case, 22 whatever is left of the Raffel case at this point, it seems 23 like things in the situation where one is talking to Pat 24 Fitzgerald, clearly, is in a realm far away from something that 25 raises alarm. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8488 4B95SAT2 1 MR. TIGAR: Your Honor, we will look at those, as well 2 as the other cases over the lunch hour and the ones that I 3 cited. 4 I don't have WestLaw here and, as I say, I did cite a 5 case or two here. 6 Beyond the constitutional issue here is the issue of 7 what inferences may permissibly be drawn from silence. Is the 8 government, by attempting to hammer this line as they 9 apparently intend to do, running into 403 problems? That is, 10 they're going to blow this evidence all out of proportion and 11 there, whatever proportion it may have, if the Court decides 12 that it will be admissible. 13 And that's, if I can use an analogy, the Court may 14 recall that one of the elements of the probable cause in Wang 15 Sun v. United States was that when the officer knocked on the 16 door of the laundry at Leavenworth Street the tenant fled and 17 there the inference was from flight. And the Court cautioned 18 that an inference from flight didn't even rise to the level of 19 probable cause. 20 What I am saying here is that silence, flight, things 21 of that kind, are likely to be overvalued by citizens who 22 believe that when confronted with authority citizens, such as 23 those on the jury who believe that when confronted with 24 authority, one has the obligation to be forthcoming. And it is 25 that danger of overvaluing that would raise a 403 objection at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8489 4B95SAT2 1 the end of the day. 2 I wanted to put that on the table because I know we 3 are not there yet but I didn't want to be saving things for the 4 end in case I should lose on the two steps one would have to 5 take in order to get there. 6 MR. BARKOW: Your Honor, I just want to correct, 7 slightly modify something I said about the Raffel because I 8 don't want to overstate it. 9 I don't think it held that the failure to testify in 10 the first trial is an appropriate subject of cross-examination. 11 What happened in that case was that it was revealed in the 12 second trial that the defendant had failed to testify in the 13 first trial and the narrower issue was a failure to speak about 14 something at an earlier stage, not a failure to testify was a 15 proper subject of cross-examination, so. 16 MR. TIGAR: There would be a question whether that 17 survived Griffin, your Honor. 18 MR. BARKOW: Griffin is cited in the other decisions, 19 in Jenkins. 20 THE COURT: What's the answer with respect to waiver 21 from the first hearing; Mr. Cohen's affidavit and the testimony 22 of the first hearing? 23 MR. DEMBER: Your Honor, we don't have that transcript 24 in front of us and so I can't cite his testimony or his 25 affidavit, frankly, until we have them both in front of us. We SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8490 4B95SAT2 1 just don't have them physically here. 2 THE COURT: And the only citations from this 3 transcript were 7909? 4 MR. DEMBER: No, your Honor. We just found another 5 one. Page 7836, starting on line 24 and going down through 6 page 7837 throughout line 20. 7 THE COURT: What is the gist of that? I don't have it 8 in front of me. 9 MR. DEMBER: I'm sorry, your Honor. I thought you 10 were looking. 11 The question was asked: 12 "Q What did you do based on your saying that you wouldn't sign 13 it?" 14 Assuming that means the affirmation, your Honor. 15 "A I consulted with an attorney. 16 "Q And did that attorney interact with you, with 17 Mr. Fitzgerald? 18 "A Yes. It was reported to me that he did. 19 "Q During this time, did you have discussions with Mr. Clark 20 and Mr. Jabara about conversations that they were having with 21 Mr. Fitzgerald about affirmations? 22 "A Yes. We consulted regularly with each other on a variety 23 of matters including the SAMs and the affirmations. 24 "Q Now, from the 23rd of June, 2000 and then of course through 25 this August 2000 letter, when was the last time that you spoke SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8491 4B95SAT2 1 to Omar Abdel Rahman? 2 "A July 2001, the visit to Rochester, Minnesota. 3 "Q In order to be able to visit him in July of 2001 did you 4 execute a SAM affirmation? 5 "A Yes. It was my understanding, through my attorney, that in 6 order to get to visit him to find out if he authorized me to 7 sign the SAM with the restrictions that were enunciated there 8 by Mr. Fitzgerald, that I would have to sign the SAM to come in 9 to find out if I should sign the SAM. So, it was a conditional 10 signing of the particular SAM affirmation rather." 11 MR. TIGAR: The same issue as before, your Honor. All 12 of this whole question about how she got in and the SAMs and 13 talking to her client about dealing with people, Stanley 14 Cohen's name is all over that, those conversations. There is 15 nothing, there is no substantive lawyer-client disclosure here. 16 THE COURT: Why isn't that a disclosure of the 17 substance of what Mr. Fitzgerald says to Mr. Cohen on the 18 subject of the SAMs and what Ms. Stewart has to do to go back 19 in to see Sheikh Rahman? 20 MR. TIGAR: It's not a disclosure, your Honor, of a 21 fact that is intended to be confidential in the relationship. 22 The correspondence here show shows that every single 23 communication about what Ms. Stewart was supposed to do, all 24 the drafts were sent by Mr. Fitzgerald and it wasn't as though 25 Mr. Fitzgerald and Mr. Cohen had some kind of conversation and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8492 4B95SAT2 1 did something. 2 Mr. Fitzgerald wrote things up and sent them. To 3 where? 351 Broadway. Which is an office shared by Ms. Stewart 4 and Mr. Cohen. At that time Mr. Cohen was using that office. 5 So, the act of communication from Mr. Cohen, simply 6 consists so far as this record now reveals, of Mr. Cohen 7 handing Ms. Stewart documents that Mr. Fitzgerald had sent. 8 That is not, I respectfully suggest, the sort of 9 communication that is part and parcel of client privilege. And 10 that is particularly so that when we see what Ms. Stewart is 11 talking about here is essentially repeating the same thing she 12 told her client at the time they had that meeting in Rochester 13 in July of 2001. 14 THE COURT: Anything else? 15 MR. DEMBER: Your Honor, we are still looking through 16 the transcript. We haven't found anything yet but we will 17 obviously bring it to your Honor's attention. 18 May I just comment briefly on Mr. Tigar's reference to 19 associating this silence with evidence of flight and these such 20 things? 21 Ms. Stewart, in her testimony, repeatedly -- even in a 22 non-responsive fashion to questions I asked -- would repeatedly 23 bring up the fact of this bubble that she operated under and in 24 her direct testimony testified in words to the effect that 25 Mr. Fitzgerald was too good an attorney not to understand that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8493 4B95SAT2 1 she was essentially operating in this bubble. And she kind of 2 used those words, he was too good an attorney not to 3 understand. 4 And she volunteered that in her direct testimony, that 5 kind of language in her answer. He was too good of an attorney 6 not to understand. 7 So, frankly, in view of the fact that she's given that 8 testimony and he calls her, the failure at that point herself 9 to respond to Mr. Fitzgerald by saying you are too good an 10 attorney not to have understood that I was operating under this 11 bubble -- her failure to ask her lawyer, direct her lawyer to 12 make that representation to Mr. Fitzgerald in either a phone 13 call or correspondence in order to convince him that she knows 14 she did not have to sign this new affirmation in order to go 15 see her client or speak to her client, when she has prominently 16 testified that way, places an unfair balance, I think, or an 17 unfair dimension to the nature of her testimony. 18 She claims he had to know about it, it was clear, he 19 was too good a lawyer not to. And at the same time when he 20 says I didn't have that understanding or saying that she 21 violated the SAMs, her failure to respond either herself or to 22 have her attorney respond by saying I didn't violate those 23 SAMs, is in direct contradiction to what she has testified to 24 in her direct testimony. 25 MR. TIGAR: Your Honor, what counsel has now done is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8494 4B95SAT2 1 to expand the scope of irrelevance, I respectfully submit. 2 The fact is Mr. Fitzgerald sends this minatory letter. 3 Following upon it Ms. Stewart has some choices -- she can 4 confront him and sue him or she can do what he invites, 5 negotiate and sign a new SAM. 6 Now the government is saying that her course of 7 conduct, in an effort to settle rather than litigate, is 8 somehow an inference of some admission of wrongdoing. 9 That inference that a party faced with this sort of 10 demand should choose to settle rather than take a 11 confrontational position is the sort of inference that is 12 prohibited by -- well, let's look at Rule 407. 13 If somebody falls in my elevator and I decide to fix 14 it, why should I be tagged with that? She decided to settle 15 the case. 16 MR. DEMBER: Your Honor, Mr. Tigar makes the point. 17 If she was negotiating -- and that's the view he apparently is 18 taking that his client took at that period of time. Part of 19 negotiations certainly would have been she has not violated the 20 SAMs and to state that and to tell her attorney to negotiate 21 along those lines that she has not violated the SAMs, that she 22 was operating under this bubble that she described for us many 23 times, I think, and that therefore shouldn't be required to 24 sign a new affirmation because the evidence is she waited quite 25 a number of months to do that, your Honor, during this period SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8495 4B95SAT2 1 of negotiation. 2 THE COURT: The parties have gone far beyond what is 3 relevant to my decision on the couple of issues that you have 4 given me and I will look at the cases. 5 Any other cites that you want to give me? 6 MR. TIGAR: Your Honor, there is a case out there that 7 we remember at our table and I don't remember the way it goes 8 but it's called Doyle v. Ohio. It might even be a bad case for 9 us but it is a Supreme Court case and therefore whatever it 10 is -- and I don't remember the cite. 11 MR. BARKOW: It's 96 Supreme Court 2240, your Honor. 12 I'm not quite sure what it relates to but it is also discussed 13 in the Jenkins case. So, whatever it stands for should be 14 revealed in that case. 15 And Griffin, which Mr. Tigar also mentioned, is also 16 cited and discussed in Jenkins. Griffin relates to commenting 17 on a defendant's failure to testify, I believe, so I don't 18 think that really applies. 19 THE COURT: Is someone going to check the transcript 20 from the prior hearing and the affidavit by Mr. Cohen? 21 MR. DEMBER: Yes. 22 MR. TIGAR: We have sent for it, your Honor. 23 THE COURT: How much more time for cross-examination, 24 Mr. Dember? 25 MR. DEMBER: I'm sorry, your Honor. I didn't hear the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8496 4B95SAT2 1 question. 2 THE COURT: How much more time for cross-examination? 3 MR. DEMBER: Your Honor, I said yesterday two hours, I 4 think that's within that period of time, hopefully. Because 5 I'm at the end, your Honor, where I go from topic to topic 6 hopefully rather quickly, and I think that I can be done in 7 less than that amount of time. 8 THE COURT: It is hard to believe that these issues 9 would take up so much time of the remaining cross-examination 10 that you couldn't have productively used the jury's time this 11 morning. 12 MR. DEMBER: Well, your Honor, unfortunately much of 13 the cross-examination has been chronological and frankly that's 14 where we are, much of the rest is chronological in nature. And 15 when one skips a point like this, which obviously we view as a 16 rather significant point in time, it loses its flow, I believe. 17 THE COURT: All right. I will look at those cases, I 18 will look at those citations to the transcript. Fax me, in 19 chambers, anything with respect to the prior hearing or other 20 testimony. 21 I will call the jury back and say that we are breaking 22 for lunch until 2:00. 23 Call in the jury. 24 (Continued on next page) 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8497 4B95SAT2 1 (Jury present) 2 THE COURT: Please be seated, all. 3 Ladies and gentlemen, I am sorry to keep you waiting 4 and we are just about at the lunch hour so, rather than keep 5 you waiting to come back in, I'm going to break for the lunch 6 hour. 7 Please, ladies and gentlemen, remember to follow my 8 continuing instructions. Please, don't talk about this case at 9 all. Always remember to keep an open mind until you have heard 10 all of the evidence, I have instructed you on the law, and you 11 have gone to the jury room to begin your deliberations. 12 Fairness and justice to the parties requires that you do that. 13 With that, have a very good lunch. I look forward to 14 seeing you later this afternoon. 15 All rise, please. 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8498 4B95SAT2 1 (Jury not present) 2 THE COURT: All right, see you at quarter of two. 3 (Luncheon recess) 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8499 4b9esat3 1 AFTERNOON SESSION 2 2:35 p.m. 3 (In open court; jury not present) 4 THE COURT: Good afternoon, all. Please be seated. 5 I haven't received anything else, and I'm certainly 6 prepared to explain where I am. 7 MR. TIGAR: Did your Honor receive a fax that we sent 8 to your chambers? 9 THE COURT: Nope. 10 MR. TIGAR: It's a single page. May I hand it up? 11 THE COURT: Sure. 12 MR. TIGAR: The government has received a copy, your 13 Honor. 14 THE COURT: All right. The first set of issues 15 relates to questions of Ms. Stewart as to what she told 16 Mr. Fitzgerald. 17 The government says that it should be permitted to 18 pursue a line of questions, such as, did you tell 19 Mr. Fitzgerald that you thought you operated in a bubble? The 20 defendant says that it should be entitled to an instruction 21 that no inference should be drawn from the defendant's silence. 22 Ms. Stewart has already testified thus far, without objection, 23 that when Mr. Fitzgerald told her that she had violated the 24 SAMs, she did not say that she had not violated the SAMs. 25 It is plain that silence of a defendant in the face of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8500 4b9esat3 1 an accusation can be considered as an admission of the truth of 2 the statements. As Judge Sand puts it in a proposed 3 instruction at 5-22, there has been testimony that the 4 defendant was silent when statements were made in his or her 5 presence according -- accusing him of committing the acts 6 charged in the indictment. If you find that the defendant 7 actually was present and heard the statements and understood 8 them, then you may consider the defendant's silence as an 9 admission of their truth if you find, in accordance with your 10 common sense and experience, that the defendant would have 11 denied the statements had they been untrue. However, you 12 should bear in mind that some people will remain silent even if 13 they're innocent. See also Jenkins against Anderson 44 US 231, 14 235, 1980. 15 This is a case in which, as a preliminary matter, it 16 would be reasonable under the circumstances for the defendant 17 to have disputed the accusation. And indeed there was no 18 objection to the original question and answer which asked 19 substantially that. It is clear, therefore, that the defendant 20 is not entitled to the instruction that the defendant seeks. 21 With respect to the instruction that Judge Sand 22 recommends with respect to the silence of the defendant, Judge 23 Sand also recommends that the instruction not be given and 24 counsel simply be allowed to argue the point to the jury unless 25 the defense counsel presses for a charge such as this. And the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8501 4b9esat3 1 reason for not giving the charge, unless the defense counsel 2 asks for it, is because it would simply remind the jury of the 3 admission. 4 At the same time, the inference from silence under 5 such circumstances is a weak one. As Judge Sand points out, 6 and as the advisory committee note to Rule 801(b)(2)(B) points 7 out, the admission is a fairly weak one precisely because, 8 although allowed, silence in a criminal case may be motivated 9 by many factors. 10 Therefore, in this case the government should be 11 allowed simply to establish that Ms. Stewart was silent in the 12 face of the accusation. She has already said that she did not 13 say that she had not violated the SAMs. The government should 14 also be allowed to follow that up with an additional question 15 to assure that she said -- that she did not say anything in 16 response to Mr. Fitzgerald's statement to deny the statement. 17 However, given the weakness of the inference, the 18 government should not be permitted to use silence as a vehicle 19 for the series of summation questions about the numerous things 20 that Ms. Stewart did not say; for example, that she thought she 21 was operating in a bubble. The parties can argue in summation 22 what the significance of Ms. Stewart's failure to respond was, 23 unless the defendants wish, or the defendant wishes an 24 instruction along the lines that Judge Sand has set out as an 25 appropriate instruction based upon the Supreme Court and Court SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8502 4b9esat3 1 of Appeals cases. 2 The second issue then relates to Stanley Cohen. I've 3 reviewed the submissions. I've reviewed the transcript cites 4 that the defendants have -- or that the government gave and 5 awaited any further guidance from the first hearing. I've also 6 looked at Mr. Tigar's declaration from the first hearing that 7 Mr. Cohen adopted with some changes. 8 It is plain that the defendant has testified about the 9 conversation with Stanley Cohen about interactions with 10 Mr. Fitzgerald relating to the content of a new affirmation to 11 comply with the SAMs. See transcript at 7837, 7910, 7914. To 12 the same effect is the document produced by Ms. Stewart, which 13 is LS307. 14 It does not appear, however, from the testimony that 15 has been proffered, even from the first hearing, that Mr. Cohen 16 testified about conversations with Ms. Stewart about her past 17 conduct and whether that conduct did or did not violate the 18 SAMs. The issue then is the scope of the subject matter 19 waiver. Without further evidence of a broad subject matter 20 waiver relating to her past conduct and her conversation with 21 Mr. Cohen about her past conduct and her compliance or lack of 22 compliance with the SAMs, the waiver is limited to the 23 discussions with Mr. Cohen over the negotiation for a new 24 affirmation. The government can thus inquire into what 25 Ms. Stewart asked Mr. Cohen to do in connection with obtaining SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8503 4b9esat3 1 access to Sheikh Rahman, but not whether she discussed with him 2 her prior conduct and whether her prior conduct was or was not 3 in compliance with the SAMs. 4 I think I've dealt with all of the issues. The 5 parties can take a moment before we resume with the jury, 6 unless there's anything else to be raised. 7 MR. DEMBER: No, your Honor. 8 MR. TIGAR: I'm sorry. I didn't hear the question. 9 No, your Honor. 10 THE COURT: Five minutes. 11 (Recess) 12 THE COURT: Are we ready? 13 MR. DEMBER: Yes, your Honor. 14 THE COURT: Ms. Stewart is on the stand. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8504 4b9esat3 1 (In open court; jury present) 2 THE COURT: Good afternoon, ladies and gentlemen. 3 It's good to see you. 4 As I've told you before, there are times when I take 5 time to deal with issues out of your presence and I have you 6 wait in the jury room because I think it's more comfortable for 7 you. 8 And I should also point out that unlike many cases, I 9 try very hard not to have side bar conferences with you sitting 10 in the jury box and keeping you waiting while we have these 11 discussions. So I very much -- and obviously, when I have any 12 break, it deals with matters that are not relevant to anything 13 you have to decide, so you're to disregard them. And as I 14 always tell you, I very much appreciate your indulgence. 15 And with that, Ms. Stewart is on the stand. 16 Mr. Fletcher? 17 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 18 are still under oath. 19 THE WITNESS: Yes. 20 THE COURT: Mr. Dember, you may proceed. 21 MR. DEMBER: Thank you, your Honor. 22 BY MR. DEMBER: 23 Q. Ms. Stewart, earlier today I asked you some questions about 24 a late July 2001 telephone call that you had with Patrick 25 Fitzgerald. Do you recall that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8505 4b9esat3 Stewart - cross 1 A. Yes. 2 Q. And you described the conversation for us, is that correct? 3 A. I did. 4 Q. And what you told us was essentially Mr. Fitzgerald told 5 you that you had violated the SAMs, told you also that you 6 couldn't see or visit your client, is that correct? 7 A. That's right. 8 Q. And I believe you said to us that your response -- in 9 response you said you'd get someone or an attorney to call him 10 back -- 11 A. Yes. 12 Q. -- essentially? 13 Did you say anything else in response to 14 Mr. Fitzgerald's statement about violating the SAMs? In other 15 words, did you respond in any other way to Mr. Fitzgerald in 16 that conversation regarding the SAMs? 17 A. No, I didn't. 18 Q. Now, did you ever have any other telephone conversations, 19 you yourself, with Mr. Fitzgerald about the press release or 20 the SAMs or an attorney affirmation? 21 A. No, I don't believe I did. 22 Q. Did you yourself ever write or send a letter to 23 Mr. Fitzgerald after that telephone conversation discussing the 24 press release, the attorney affirmation or the SAMs? 25 A. No, I don't think so. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8506 4b9esat3 Stewart - cross 1 Q. By the way, Ms. Stewart, I think I may have misspoke. When 2 I said July -- I may have misspoken when I was referring to the 3 telephone call. I may have said July 2001. That was in 4 July -- late July 2000, is that correct? 5 A. That's right. 6 Q. I may have misspoke. 7 Now, you told us that after that telephone 8 conversation you retained Mr. Cohen, is that correct? 9 A. Yes. 10 Q. Was he sharing an office space with you at the time? 11 A. Yes. 12 Q. And he became your attorney, is that correct? 13 A. Yes. 14 Q. And you had him deal with Mr. Fitzgerald with respect to 15 the attorney affirmation and the SAMs and the issues that arose 16 from Mr. Fitzgerald's telephone call? 17 A. Yes. I think I was on vacation that whole month of August 18 up until the end. But I think I spoke to Mr. Cohen by phone 19 and talked to him about it. 20 MR. DEMBER: Now, your Honor, may I display Government 21 Exhibit 2657 again? 22 THE COURT: Yes. 23 Q. Ms. Stewart, let me just show you the front of the first 24 page of that exhibit. It's a fax cover sheet. The fax cover 25 sheet indicates a date of August 28, 2000, is that correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8507 4b9esat3 Stewart - cross 1 A. Yes, it does. 2 Q. And we discussed the letter date this morning, and you 3 indicated it was dated August 3, 2000, is that correct? 4 A. That's correct. 5 Q. And did you just tell us that you believed that you were 6 away for most of the month of August? 7 A. I did say that. 8 Q. And do you remember if you yourself saw this letter before 9 August 28, 2000? 10 A. I'm fairly certain that it would have -- it was something 11 that would have been faxed to me or mailed to me up where I -- 12 in the country. 13 Q. Where you were during the August -- the month of August? 14 A. Yes. 15 Q. And just from the exhibit it appears that you faxed the 16 letter, the new affirmation and those news articles to 17 Mr. Sattar, is that correct? 18 A. Yes. 19 Q. And turning to the second page, you appear to have also 20 faxed it to Mr. Jabara and to Mr. Clark? 21 A. Yes. 22 Q. And you also apparently faxed it to Mr. Yousry as well? 23 A. Yes. 24 Q. And you did all those -- you did those, that faxing or had 25 that faxed on August 28th of 2000? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8508 4b9esat3 Stewart - cross 1 A. I believe that is the date on it. I assume that's when it 2 happened. 3 Q. Now, Ms. Stewart, after you got this letter from 4 Mr. Fitzgerald and -- did you take any efforts or make any 5 efforts to visit Abdel Rahman after you got this letter from 6 Mr. Fitzgerald? 7 A. I requested a visit in September. I think that was done 8 mainly to make the record that I was refused the -- we -- I 9 sent in a request for a visit, a mail request to Rochester. My 10 surprise, I was granted the visit, and then I got a call back 11 saying, oh, we heard from Mr. Fitzgerald and you're not granted 12 the visit. It had been done mainly to establish that I was not 13 permitted to go in as we were deciding how to -- best to deal 14 with this. 15 MR. DEMBER: Your Honor, may I approach the witness. 16 THE COURT: Yes. 17 Q. Ms. Stewart, I'm going to hand up to you two government 18 exhibits, which are 2650 and 2651, which are in evidence. 19 MR. DEMBER: Your Honor, may I display Government 20 Exhibit 2651. 21 THE COURT: Yes. 22 MR. DEMBER: In evidence. 23 THE COURT: Yes. 24 BY MR. DEMBER: 25 Q. Ms. Stewart, that is a letter, a letter from you, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8509 4b9esat3 Stewart - cross 1 correct? 2 A. That's correct. 3 Q. You have that before you? 4 A. I do. 5 Q. And that's dated September 1, 2000. It's addressed by you 6 to Warden Reese, is that correct? 7 A. That's correct. 8 Q. And in the letter it reads, I am writing to request a legal 9 visit with my client, Dr. Omar Abdel Rahman, on Friday, 10 September 15th, and Saturday, September 16th, 2000. I will be 11 accompanied by interpreter Mohammed Yousry. It is crucial to 12 an ongoing discussion of his legal problems and the conditions 13 lawsuit we are preparing to file. 14 Please confirm this date with my office. Thank you. 15 Very truly yours, and then there's a signature and 16 your name, Lynne Stewart. 17 Did you prepare that letter? 18 A. I did. 19 Q. And you sent it to Warden Reese requesting a visit in 20 September, is that correct? 21 A. Yes. 22 Q. And did you intend to actually go on that visit? 23 A. It was, as I said, mainly to have the denial so that we 24 would know that this was in effect, and in case of litigation, 25 we would have a record that actually it was -- a visit was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8510 4b9esat3 Stewart - cross 1 denied. 2 Q. So you were expecting your request to be denied? 3 A. Yes. 4 Q. And you wanted to have that denial sort of in your 5 possession so if you, you said, went to litigation, you could 6 present that in a court of law? 7 A. Yes. 8 Q. Is that a fair statement? 9 A. Yes. 10 MR. DEMBER: May I display Exhibit 2650, your Honor. 11 THE COURT: Yes. 12 Q. Ms. Stewart, do you recognize Exhibit 2650? 13 THE COURT: Could you go back one question. 14 MR. DEMBER: Sure, your Honor. 15 THE COURT: Just identifying the exhibit, I think. 16 MR. DEMBER: Sure. 17 BY MR. DEMBER: 18 Q. Ms. Stewart, I'm going to show you -- may I -- I displayed 19 it. 20 Ms. Stewart, I'm displaying for you what is in 21 evidence as Government Exhibit 2650. Is that the letter you 22 got in response, or a letter you got in response to your visit? 23 A. Yes. 24 Q. And that's from Warden Reese at the Federal Medical Center 25 at Rochester? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8511 4b9esat3 Stewart - cross 1 A. That's correct. 2 Q. And it reads, does it not, after a recent legal visit at 3 the Federal Medical Center in Rochester, Minnesota, you made 4 statements to the press that violated the Special 5 Administrative Measures imposed upon Omar Abdel Rahman. I am 6 informed that as a result of your actions, the United States 7 Attorney for the Southern District of New York requested that 8 you execute an amended affirmation before any future legal 9 visits were approved. I understand that as of today, 10 September 11, 2000, you have not yet executed the amended 11 affirmation. Accordingly, I am rescinding my previous approval 12 of your legal visit with Omar Abdel Rahman scheduled for 13 September 15 and 16, 2000. Consideration for future legal 14 visits will be given after you have executed the required 15 amended affirmation. 16 And that appears to be signed by Warden Reese, is that 17 right? 18 A. That's right. 19 Q. And at that point in time you had not signed the new 20 affirmation, attorney affirmation that Mr. Fitzgerald had 21 proposed, had you? 22 A. No, I had not. 23 Q. Ms. Stewart, at any point -- you had sent the letter to 24 Warden Reese requesting the visit in anticipation of possibly 25 going to court and making some kind of a legal challenge, is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8512 4b9esat3 Stewart - cross 1 that right? 2 A. Yes. 3 Q. And what kind of a legal challenge was that? 4 A. That it was not legal to deprive me of my -- or to deprive 5 my client, actually, of me, because of the reasons stated in 6 the letter that Mr. Fitzgerald had sent us. 7 Q. And did you, in fact, go to court and make those claims, or 8 that claim? 9 A. No, we did not. 10 Q. Now, as of the time of that exchange of letters with Warden 11 Reese, you had not signed the affirmation, is that correct? 12 A. That's right. 13 Q. And, in fact, that was in September of 2000, is that right? 14 A. That's right. 15 Q. And you did not sign an affirmation until sometime in 16 May 2001, is that correct? 17 A. I think so. I had thought it was earlier but I could be 18 wrong. 19 Q. Now, I believe you testified in your direct testimony about 20 the fact that you were aware that Ramsey Clark was engaging in 21 some negotiations about the language in the attorney 22 affirmation, is that correct? 23 A. Yes. It was my understanding that they also were sometime 24 in the late fall, maybe November, December, in there, January, 25 that they, too, had been -- for their refusal -- "their" being SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8513 4b9esat3 Stewart - cross 1 Abdeen Jabara and Ramsey Clark -- for their refusal to sign on 2 the affirmation as it was sent to them. 3 Q. And did you have contact or communication with Mr. Clark or 4 Mr. Jabara or Mr. Schilling with respect to that? 5 A. I'm not certain how I learned about that. I may have 6 learned about it from Mr. Sattar, or Mr. Yousry, actually. I'm 7 not sure how I learned about that. 8 MR. DEMBER: Your Honor, may I approach the witness. 9 THE COURT: Yes. 10 Q. Ms. Stewart, I'm going to hand up to you some documents 11 that I've marked for identification as Government Exhibits 604, 12 605, 606 and 608. Would you take some time, just look through 13 them to see if they're familiar to you. 14 THE COURT: You may approach. 15 MR. DEMBER: I'm sorry, your Honor. 16 A. Thank you. I've read them, Mr. Dember. 17 Q. Are those -- let's start with -- let me ask you a general 18 question first. Are you familiar with any of those documents? 19 A. I don't believe I ever saw them before. I'm -- I notice 20 I'm not copied on any of them, so I don't think I did see these 21 before. But I knew generally that Ramsey, or Mr. Clark and 22 Mr. Jabara, had worked something out, so they were getting 23 telephone calls again. 24 Q. And were you aware of the fact that they had negotiated 25 with Mr. Fitzgerald about the language that went into that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8514 4b9esat3 Stewart - cross 1 attorney affirmation? 2 A. I knew they had negotiated about the language. I'm not 3 sure I knew the particulars of that negotiation. 4 Q. In general terms did you know that they were negotiating 5 over the language, some of the language in the affirmation? 6 A. Yes. 7 Q. And at some point in time did you learn that they had 8 agreed upon the language with Mr. Fitzgerald and that they were 9 willing to sign the attorney affirmations? 10 A. I assumed they had because I knew that they were getting 11 calls, so I assumed that they had worked out some agreement. 12 I'm not certain I ever saw the exact verbiage. 13 Q. And I'm not asking you specifics about what you knew 14 precisely about the language; just did you learn that, in fact, 15 they had agreed upon some language, whatever it was, and had 16 agreed to sign the attorney affirmation? When I say "they," I 17 mean, Mr. Clark, Mr. Jabara and Mr. Schilling? 18 A. Yes, I did. 19 Q. And did you learn that that all occurred roughly within the 20 first ten days of January in 2001? 21 A. I would have thought it was later, but I have the documents 22 in front of me so I'm prepared to say that it must have 23 happened then. 24 Q. Do you recognize -- 25 A. I thought it was later in the month. I thought it was the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8515 4b9esat3 Stewart - cross 1 end of January before they had signed and were approved to get 2 calls. 3 Q. But you certainly knew, other than looking at the 4 documents, you certainly knew, did you not, that at some point 5 in January of 2001 they had signed off on affirmations? 6 A. Yes. 7 Q. And did you know whether or not they started having 8 telephone calls with Abdel Rahman in January of 2001? 9 A. It was my impression, as I said, but I thought it was much 10 later in the month. 11 Q. Well, at some point in time did you learn that they were 12 now having phone calls again with Abdel Rahman? 13 A. Yes. 14 Q. And now, Ms. Stewart, is it fair to say that in January of 15 2001 you still were not satisfied with the language that was in 16 the attorney affirmations that were -- you were being asked to 17 sign? 18 A. There had been no meeting of the minds. I think that's 19 fair to say, yes. 20 Q. And there was no meeting of the minds for a couple of 21 months after that, wasn't there? 22 A. I know that I signed an affirmation in May and visited him 23 in July. I had thought I had signed one earlier somewhere 24 towards the end of February, but I -- if it -- but I don't know 25 that for a fact. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8516 4b9esat3 Stewart - cross 1 MR. DEMBER: Your Honor, may I approach the witness. 2 THE COURT: Yes. 3 Q. Ms. Stewart, I'm going to hand you up two documents which 4 we've marked for identification as Government Exhibits 610 and 5 609. 6 Ms. Stewart, let me just ask you, first, to take a 7 look at the document we've marked for identification as 8 Exhibit 610. Do you recognize that document? 9 A. Yes. 10 Q. And is that a document that you prepared? 11 A. Yes. 12 Q. And it's -- 13 MR. TIGAR: Excuse me, your Honor. Has that document 14 been displayed to the Court? 15 THE COURT: No. No, it's just -- 16 MR. TIGAR: We respectfully request that the Court be 17 given a copy. 18 THE COURT: All right. 19 MR. DEMBER: May I have a moment, your Honor. 20 THE COURT: Sure. 21 MR. DEMBER: Your Honor, may I hand it up. 22 THE COURT: Sure. Thank you. 23 MR. DEMBER: I'm going to hand up both 609 and 610. 24 THE COURT: All right. Thank you. 25 All right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8517 4b9esat3 Stewart - cross 1 BY MR. DEMBER: 2 Q. Ms. Stewart, did you just tell us that you prepared 3 Government Exhibit -- the document marked exhibit, Government 4 Exhibit 610? 5 A. Yes. 6 MR. DEMBER: Your Honor, the government offers 7 Exhibit 610 into evidence. 8 MR. TIGAR: No objection, if your Honor regards this 9 within the scope of your Honor's earlier ruling. 10 THE COURT: All right. Yes. Government Exhibit 610 11 received in evidence. 12 (Government's Exhibit 610 received in evidence) 13 MR. DEMBER: May I display it to the jury, your Honor. 14 THE COURT: Yes. 15 BY MR. DEMBER: 16 Q. Ms. Stewart, this is Government Exhibit 610 on display, is 17 that right? 18 A. Yes, it is. 19 Q. And do you have a hard copy in front of you? 20 A. I do. 21 Q. OK. This is a memo that you prepared, is it not? 22 A. Yes. 23 Q. And it's dated February 23rd, 2001? 24 A. Yes. 25 Q. And it says it's to SC. Is that Stanley Cohen, your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8518 4b9esat3 Stewart - cross 1 lawyer? 2 A. Yes, it is. 3 Q. And it's from LS. That's you, right? 4 A. Yes. 5 Q. And after the RE line, it says RE or Re Sheikh, it reads 6 paragraph language that LS -- that's you, correct? 7 A. Mm-mm. 8 Q. Will agree to sign off on. And then you have prepared some 9 language that you were proposing or that you wanted to be 10 included within the attorney affirmation, is that right? 11 A. Yes. 12 Q. And was this your proposal for the final paragraph of the 13 affirmation? 14 A. Yes, I think it was the last paragraph. I may have relied 15 on what Ramsey had prepared earlier. I see a lot of the same 16 language in there, but I don't recall having anything in front 17 of me, let's just put it that way. 18 Q. Now, would you read this for us, please. 19 A. Sure. I understand that the Bureau of Prisons is relying 20 upon my sworn representations as a member of the bar in this 21 affidavit in affording inmate Abdel Rahman the opportunity to 22 meet and/or speak and/or correspond with me and my office and 23 that any violation of these understandings could, among other 24 things, result in further limitation, or even elimination, of 25 inmate Abdel Rahman's ability to contact me or my office. I SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8519 4b9esat3 Stewart - cross 1 know that Abdel Rahman has been convicted of terrorism 2 offenses, including soliciting crimes of violence, and that 3 terrorist activities have been carried out by persons allegedly 4 using his name subsequent to his conviction, including the 5 killing of approximately 60 tourists in Luxor, Egypt, in 6 November 1997, and the kidnapping of tourists in the 7 Philippines in the spring of 2000. 8 Moreover, the Islamic Group, which the law enforcement 9 believes Abdel Rahman was affiliated with in the past and has 10 never disowned, has been designated a foreign terrorist 11 organization by the Secretary of State. I thus understand that 12 the United States, as a matter of policy, is concerned that a 13 violation of the Special Administrative Measures, including but 14 not limited to dissemination of messages on behalf of Abdel 15 Rahman, can result in violence to persons or property here in 16 the United States or overseas. 17 I specifically understand that the intent of the 18 Special Administrative Measures is to deprive Abdel Rahman, 19 convicted of terrorism offenses, of communication facilities 20 and equipment, and that his opportunity to consult with counsel 21 is not to be converted into an opportunity to use communication 22 equipment and facilities for any purpose other than legal 23 consultation. 24 Q. Thank you. Ms. Stewart, why don't you take a look, if you 25 would, at the document that we've marked for identification as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8520 4b9esat3 Stewart - cross 1 Government Exhibit 609. Do you have that before you? 2 A. I do. 3 Q. And do you recognize what that is? 4 A. Yes. That's a letter that was written by Mr. Cohen to 5 Mr. Kelley, apparently. 6 Q. OK. And was that written on your behalf? 7 A. Yes. 8 MR. DEMBER: Your Honor, the government offers into 9 evidence Government Exhibit 609. 10 MR. TIGAR: No objection, your Honor. 11 THE COURT: All right. Government Exhibit 609 12 received in evidence. 13 (Government's Exhibit 609 received in evidence) 14 MR. DEMBER: May I display it, your Honor. 15 THE COURT: Yes. 16 BY MR. DEMBER: 17 Q. Ms. Stewart, this is a letter written by Mr. Cohen to 18 Mr. Kelley, is that correct? 19 A. Yes. 20 Q. And it's dated February 28, 2001, is that right? 21 A. It is. 22 Q. And it reads, Dear Mr. Kelley, although Ms. Stewart has 23 problems with your proposed agreement both conceptually and in 24 wording, the last paragraph in particular is most disturbing. 25 As we have discussed, Ms. Stewart is prepared to sign off on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8521 4b9esat3 Stewart - cross 1 the agreement for the limited purpose of one visit alone with 2 the Sheikh. Before she will do so, however, we propose the 3 last paragraph be modified in the following way. 4 Ms. Stewart, are you familiar with the language of 5 that -- proposed language? Would you -- I see you're looking 6 at, comparing it with Exhibit 610. 7 A. Let me see if they're the same. 8 Q. You've anticipated my question. Would you do the 9 comparison, just eyeball it, see if it's the same that you 10 proposed in your memo to Mr. Cohen? 11 A. I will. 12 Q. Thank you. 13 A. It is the same, even to the use of the word "the," which 14 does not seem to fit in front of law enforcement. 15 Q. Other than that one word, it's identical to your memo, 16 which is Exhibit 610? 17 A. Yes, well, that word is included in it. 18 Q. It is included. OK. 19 And now -- and just to complete the letter here, last 20 sentence reads, following Ms. Stewart's visit to the Sheikh we 21 will indicate to you whether or not she will be willing to sign 22 off on the agreement. Very truly yours, Stanley Cohen. 23 Did you propose any other language to be included in 24 the attorney affirmation other than the language that we see in 25 these two exhibits? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8522 4b9esat3 Stewart - cross 1 A. No. 2 Q. Was this the only time in your dealings with the US 3 Attorney's Office, whether with Mr. Fitzgerald or Mr. Kelley or 4 anyone else, that you actually proposed language for the 5 attorney affirmation? 6 A. I believe so. I have a memory of changing things but I 7 think that may have been in preparation for writing this memo. 8 Q. Other than that did you have any recollection of proposing 9 different language for the attorney affirmation from the 10 start -- from when you first had to sign one? 11 A. No. 12 Q. Do you know if Mr. Cohen ever sent any other letters 13 proposing language or different language to the US Attorney's 14 Office regarding the attorney affirmations? 15 A. I don't believe so. I think that it was done by telephone. 16 However, there may have been other correspondence. I don't 17 think so, though. 18 Q. Now, Ms. Stewart, just to show you the exhibit again, it's 19 dated February 28, 2001, is that right, the letter itself? 20 A. Yes, it is. 21 Q. And by the way, did you understand that Mr. Kelley was 22 sometimes acting on behalf of Mr. Fitzgerald and the US 23 Attorney's Office in dealing with the SAMs? 24 A. Yes. 25 Q. And did you ever suggest to Mr. Cohen any other or SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8523 4b9esat3 Stewart - cross 1 different language to be included in an attorney affirmation 2 after you received that phone call from Mr. Fitzgerald back in 3 July of 2000? 4 A. Not that I recall, no. 5 Q. Well, did you ever suggest to Mr. Cohen that he should 6 include language in the attorney affirmation that would 7 explicitly permit you to issue press releases which included 8 statements of Abdel Rahman? 9 A. No. 10 Q. Did you ever suggest or recommend or talk with Mr. Cohen 11 about including language in the attorney affirmations that 12 would discuss explicitly this concept of the bubble that you've 13 told us about in your testimony? 14 A. No, I never did. 15 Q. Did you ever ask or discuss with Mr. Cohen, including in a 16 proposal to the United States Attorney's Office, language for 17 the attorney affirmation which would indicate that you should 18 be permitted to operate -- withdrawn. 19 Did you ever propose language to Mr. Cohen or discuss 20 with Mr. Cohen proposed language for an attorney affirmation in 21 which essentially it stated that you would be able to bring in 22 letters or correspondence and bring them out, bring 23 correspondence in to prison to Abdel Rahman or bring any of his 24 correspondence out yourself without going through any 25 procedures? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8524 4b9esat3 Stewart - cross 1 A. At the risk of being repetitive, no, because we thought 2 that was governed by the rules of ethics of the State of 3 New York. 4 Q. Well, you certainly told us that you believed that at least 5 prior to the end of July 2000 that you were entitled to issue 6 press releases which included statements by your client, is 7 that right? 8 A. Yes. 9 Q. And was it not clear to you that by the end of July 2000, 10 when you had your telephone conversation with Mr. Fitzgerald, 11 that he disagreed with that view that you should be permitted 12 to issue press releases, which included messages from your 13 client? 14 A. I had known that it was probably a close call, the issuing 15 of the press release. It was one of those judgments that 16 lawyers make. And I made the judgment and got the phone call 17 from Mr. Fitzgerald. However, I didn't think that bringing in 18 of correspondence and opinions, etc., etc., was not within what 19 we're supposed to do as lawyers. 20 Q. I believe my question was, though, that by the end -- after 21 you had that conversation in July of 2000 with Mr. Fitzgerald, 22 you understood, did you not, that Mr. Fitzgerald disagreed with 23 your interpretation of the SAMs in which you believed you were 24 entitled to issue press releases which included statements of 25 your client, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8525 4b9esat3 Stewart - cross 1 A. Yes, I understood that he disagreed, yes. 2 (Continued on next page) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8526 4B95SAT4 Stewart - cross 1 BY MR. DEMBER:: 2 Q. And you never proposed additional language for any of the 3 new affirmations which would include such language that you 4 would be permitted to issue press releases which included 5 statements by your client, Abdel Rahman? 6 A. No, I never did. 7 Q. Now, Ms. Stewart, after you were charged in this case -- 8 withdrawn. 9 I think you told us that in cases or high profile 10 cases that you had represented clients in, that you made it a 11 part of your practice of defending clients to speak with the 12 media, is that correct? 13 A. Yes; as a rule. 14 Q. And after you were charged in this case you continued to 15 speak to the media essentially on your own behalf, did you not? 16 A. I'm not sure there is a continuation there but I did speak 17 with the media on my own behalf, yes. 18 Q. You gave interviews on the television? Correct? 19 A. Yes. 20 Q. You gave interviews on the radio, is that right? 21 A. Yes. 22 Q. You gave interviews to newspaper reporters? 23 A. Yes. 24 Q. Did you give interviews to magazine writers? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8527 4B95SAT4 Stewart - cross 1 Q. And in a lot of those interviews you discussed this case, 2 did you not? 3 A. Pretty much all of them, I would think. 4 Q. And you were asked questions about the case by the 5 reporters who were interviewing you? 6 A. Yes. 7 Q. Do you recall giving an interview to a television reporter 8 by the name of Greta Van Susteren? 9 A. Yes. 10 Q. And that was on the Fox News Network, is that correct? 11 A. Yes. She has her own show on that network. 12 Q. And do you recall that being a live broadcast? 13 A. It was a live broadcast. 14 Q. In other words it wasn't -- you didn't tape the interview 15 before it was shown, you were actually being interviewed while 16 the program was live, correct? 17 A. Right. 18 We drove up to some place in the 50s on Sixth Avenue 19 and she had, was broadcasting that night from New York. 20 Q. And that was here in Manhattan? 21 A. Yes. 22 Q. Do you remember that being approximately a month or so 23 after you had been charged in this case? 24 A. I know it was in May, so that is about a month after, yes. 25 Q. I mean -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8528 4B95SAT4 Stewart - cross 1 A. Of 2002. 2 Q. Do you remember the charges being filed against you, and 3 your office being searched on April 9th of 2002? 4 A. Yes. 5 Q. And it was in May 2002 that you had that interview? 6 A. Yes. 7 Q. By the way, were you invited onto the show or did you sort 8 of solicit their invitation? How did it work? 9 A. Actually, the media actually courts you if they think 10 you're a person they have some interest in. So, I believe 11 Ms. Van Susteren, who I had a passing acquaintanceship with 12 having both been on a case -- or at least a parter in her law 13 firm was on a case with me in Washington -- called me pretty 14 consistently during the month of April. And in May she said 15 she would come to New York if I would do the interview. And I 16 agreed to do that. 17 I had understood it was going to be a much longer 18 interview but it was what it was. 19 Q. Now, have you ever seen a recording of that interview? 20 A. No, I don't think I have ever seen a recording of it. 21 Q. Do you recall during the interview itself being asked the 22 following question? I will go one at a time, and whether you 23 gave the following answer: 24 "Q Had you signed an agreement not to make -- not to make 25 those press releases because this is an unusual client? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8529 4B95SAT4 Stewart - cross 1 "A I had. It's an interesting story, Greta, because I signed 2 it once, then there was the press release. The government knew 3 about the press release. They called me up. They said, 'we 4 found out you made a press release, you can't visit anymore.' 5 My lawyer, Stanley Cohen, called them at that point and said 6 'well, she needs to see the client. How are we going to 7 arrange that?' They said, 'Sign the agreement again.' So, I 8 signed the agreement again, went back out to Minnesota, saw him 9 at least two more times after that press release was released." 10 Do you remember being asked that question and giving 11 that answer? 12 A. I do. 13 Q. Do you remember the next question and answer which followed 14 that: 15 "Q But you knew you were -- but you knew you had agreed not to 16 do that?" 17 Your answer: 18 "A We had agreed not do that but I represent a client who is 19 an important person on the world scene. He was an important 20 person, he remains an important person." 21 Do you remember being asked that question and you 22 recall giving that answer? 23 A. Yes. 24 Q. Do you remember the next questions and answers: 25 "Q Why, why -- why not -- why not fight that agreement and not SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8530 4B95SAT4 Stewart - cross 1 violate it?" 2 You just said the word -- something unintelligible and 3 the question continued: 4 "Q I mean, why didn't you go to court and say that, you know, 5 you have a right to do this. You represent a client where, you 6 know, a First Amendment right or whatever. Why just sort of go 7 and poke a stick in their eye? Because you've got yourself an 8 indictment out of it. 9 "A Right. Actually, that was in the works. That was one of 10 the main things we talked about but we thought it was a 11 question of timing of bringing such a suit at a time when it 12 could be favorably received. As you know, if you bring 13 something of that nature on September 12 of the last -- of last 14 year, it would have been filed in the circular file." 15 Do you remember being asked that question and giving 16 that answer? 17 A. Yes. 18 Q. In another part of the interview, a little later -- by the 19 way, do you recall how long the interview lasted for, 20 approximately? 21 A. I don't think it could have been much. There was a break 22 in it, I remember. I don't think it could have been much more 23 than 10 minutes. Could be 15. 24 Q. Is that why you said you expected the interview to be 25 longer? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8531 4B95SAT4 Stewart - cross 1 A. Yes. 2 Q. And when you say a break, did they go to a commercial 3 break? 4 A. I believe so. 5 Q. This was on television, was it not? 6 A. Right. 7 Q. Do you remember being asked the following question and 8 giving the following answer? 9 "Q I guess, you know, as I listen to you talk about the case, 10 when I hear you talk about it you will get your jury trial. 11 And it's a terrifying experience but I don't understand your 12 willingness to sort of poke the government in the eye when you 13 said you weren't going to do this press release and you did it 14 anyway. You were sort of asking for it. 15 "A Well, you know, Greta, you take on a client and you have to 16 take the client as who he is. The Sheikh is facing life in 17 prison. His only hope of ever getting out of prison is if the 18 political conditions in Egypt change and they change in some 19 way." 20 Do you remember being asked that question and giving 21 that answer? 22 A. Yes. 23 Q. Do you recall being asked the following questions and 24 giving the following answers: 25 "Q Oh, that's not -- that's not going to get him out of prison SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8532 4B95SAT4 Stewart - cross 1 here. I mean, he's convicted of serious offenses here." 2 By the way, the questions are being asked by Ms. Greta 3 Van Susteren, is that correct? 4 A. Yes. And comments. 5 Q. When I say questions, that part is coming from Greta Van 6 Susteren, correct? 7 A. It is. 8 Q. And the answers are coming from you? 9 A. Yes. 10 Q. And the answer: "You get out the word well." 11 And Ms. Van Susteren continues: "I mean, I don't care 12 how much they change in Egypt." 13 MR. TIGAR: Your Honor, may we have an instruction 14 that Ms. Van Susteren's comments are not being received for the 15 truth? 16 THE COURT: Yes. 17 MR. TIGAR: Thank you. 18 THE COURT: Ladies and gentlemen, Ms. Van Susteren's 19 comments are not being received for truth of any of the matters 20 asserted in those comments, okay? 21 MR. DEMBER: Your Honor, may I go back to the previous 22 question? 23 THE COURT: Yes. 24 BY MR. DEMBER:: 25 Q. It really is a comment by Ms. Van Susteren. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8533 4B95SAT4 Stewart - cross 1 "Q I mean, I don't care how much they change in Egypt. 2 "A Well, if his party were to sweep into power in Egypt and 3 Mubarak was sent where he should go -- a corrupt and terrible 4 leader that has stolen millions from his government, from your 5 pocket and mine -- if he were swept away and the Sheikh's 6 people were in power, you don't think that they'd trade 7 somebody something to get him out?" 8 Actually a comment by Ms. Van Susteren: 9 "Q Absolutely not. 10 "A Oh, oh, oh, I don't agree with you." 11 Question or actually a comment by Ms. Van Susteren: 12 "Q Absolutely not. 13 "A They are very pragmatic when it comes to their interests 14 and Egypt is a bigtime interest for this government." 15 Do you recall having that exchange with Ms. Van 16 Susteren during the interview? 17 A. Yes. 18 Q. Ms. Stewart, at the time you gave that interview, did you 19 believe that the only hope for your client, Abdel Rahman, of 20 ever getting out of prison, was if political conditions in 21 Egypt changed? 22 A. I didn't say the only hope. I thought it was one of the 23 hopes. I've talked a lot here about exchange and getting him 24 exchanged. These things do happen and that was one thought 25 that we had. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8534 4B95SAT4 Stewart - cross 1 Q. Well, do you remember saying to Ms. Van Susteren, "his only 2 hope of ever getting out of prison is if the political 3 conditions in Egypt change?" 4 A. I probably wasn't being terribly careful about every word, 5 Mr. Dember, but I'm sure that's what I said. I don't think I 6 meant it was the only hope. 7 Q. Did you believe at that time, Ms. Stewart, that if 8 President Mubarak was removed from office in Egypt and what you 9 called Abdel Rahman's political party took over, that they 10 would, in some way -- or the American government would be 11 compelled or forced in some way to exchange him or transfer him 12 for something or someone else? 13 A. Well, I believed it might be a case of enlightened 14 self-interest, perhaps, that to remove this person, Sheikh 15 Omar, who was such a lightning rod that attracted so much 16 controversy, so many problems; and to do a good deed, if you 17 will, for the Egyptian people and for him. 18 It's been known to happen. 19 Q. Now, Ms. Stewart, you, at the time -- I want to backtrack 20 for a moment. 21 At the time when you and your lawyer, Stanley Cohen, 22 were negotiating with the United States Attorney's office for 23 the language of the attorney affirmation in February or so -- I 24 believe is on the document -- February 2001, had you seen or 25 spoken to your client, Abdel Rahman, since I believe it was a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8535 4B95SAT4 Stewart - cross 1 June 27th 2000 telephone call? 2 A. No, I had not. 3 Q. You had no contact with him, is that right? 4 A. No contact except what was reported to me by Mr. Clark or 5 Mr. Jabara. 6 Q. And during that period of time -- withdrawn. Let me jump 7 ahead for a moment, if I can. 8 THE COURT: Any time that there is a convenient time 9 for a break. 10 MR. DEMBER: Your Honor, may I -- 11 THE COURT: Sure. 12 MR. DEMBER: This may be as good a time as any, 13 actually. 14 THE COURT: Fine. 15 Ladies and gentlemen, we will take 10 minutes. Or 16 five minutes, if we can do it. Please remember my continuing 17 instructions. 18 Please, don't talk about the case at all. Please 19 remember to keep an open mind until have you heard all of the 20 evidence and I have instructed you on the law and you have gone 21 to the jury room to begin your deliberations. 22 Have a good break. 23 (Continued on next page) 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8536 4B95SAT4 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. 3 (Witness steps down) 4 (Recess) 5 THE COURT: Please be seated, all. 6 All right, we were a little delayed because 7 Mr. Fletcher had to get some more legal pads for the jury. 8 Just pens. 9 I believe Ms. Stewart was on the stand. 10 (Witness resumes stand) 11 (Continued on next page) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8537 4B95SAT4 Stewart - cross 1 (Jury present) 2 THE COURT: All right, Ms. Stewart on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE WITNESS: Yes. 7 THE COURT: Mr. Dember, you may proceed. 8 MR. DEMBER: May I approach the witness, your Honor? 9 THE COURT: Yes. 10 BY MR. DEMBER:: 11 Q. Ms. Stewart, I have just handed up to you a document that 12 is in evidence, Government Exhibit 2656. 13 A. Yes. 14 Q. Do you recognize that document? 15 A. I do. 16 Q. 17 MR. DEMBER: May I display it for the jury, your 18 Honor? 19 THE COURT: Yes. 20 Q. Ms. Stewart, this is a document that was seized from your 21 office during the FBI search, is that correct? 22 A. That's correct. 23 Q. And it is apparently some kind of a report from NBC News 24 production systems, is that right? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8538 4B95SAT4 Stewart - cross 1 Q. And it indicates on the top with the letters "RE," and then 2 the word "to," then it says Lynn Stewart -- not spelling your 3 first name correctly -- but was this sent to you? 4 A. It was. 5 Q. Who sent it to you? 6 A. NBC News, I believe, sent it to me. 7 Q. This was a report, was it not, which essentially described 8 that tape that we saw from Al-Jazeera TV, is that correct, with 9 Osama Bin Laden, Rifai Taha and Ayman Al-Zawahiri apparently 10 making some statements? 11 A. Just give me a minute. 12 Q. Sure. Take your time. 13 A. Yes, it is. 14 Q. And let me direct your attention down to -- I am pointing 15 out a paragraph, it says, Bin Laden, a dagger in his belt, was 16 flanked by the Egyptian Ayman Al-Zawahiri, considered to be his 17 right-hand man -- 18 THE COURT: Considered his right-hand man. 19 Q. -- considered his right-hand man and Rifai Ahmad Taha, a 20 leading figure in the armed Egyptian group Jamaa Islamiya? 21 MR. TIGAR: May we have limiting instruction repeated 22 on this, your Honor? 23 THE COURT: Yes. This was not admitted in evidence 24 for the truth of any of the statements in the document. 25 MR. TIGAR: And I respectfully request that Bin Laden SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8539 4B95SAT4 Stewart - cross 1 limiting. 2 THE COURT: All right. I have already instructed you, 3 ladies and gentlemen, with respect to Bin Laden, and you are to 4 apply that instruction here. 5 You will recall that Mr. Bin Laden is not alleged to 6 be a participant in any of the conspiracies alleged in this 7 case. None of the defendants is alleged to have conspired with 8 Mr. Bin Laden. 9 MR. DEMBER: May I proceed, your Honor? 10 THE COURT: Sure, yes. 11 Q. Let me just move to the top of the document again, 12 Ms. Stewart. 13 The date appears to be September 22nd, 2000 is it; is 14 that your understanding or recollection as to when you received 15 this document? 16 A. Yes. 17 Q. Now, going back to that paragraph that I just read, there 18 was a reference to a Rifai Ahmad Taha, and then it indicates: 19 "A leading figure in the armed Egyptian group, Jamaa Islamiya." 20 Did you understand -- first of all, when you got this 21 document, did you read it? 22 A. I read it. 23 Q. Did you understand or believe that the reference to the 24 armed Egyptian group, Jamaa Islamiya, that was the Islamic 25 Group, IG? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8540 4B95SAT4 Stewart - cross 1 A. I'm not sure I remember that. There was another group that 2 had a remarkably similar name but it was close enough to catch 3 my attention. 4 Q. And at the time you received this and read this document, 5 did you know the name Rifai Ahmad Taha? 6 A. No, I didn't. 7 Q. Well, did you ask anyone about that name? 8 A. No. 9 Q. Specifically, did you ask Mr. Sattar, by the way, who is 10 this -- 11 A. Oh no. 12 Q. Rifai Ahmad Taha person? 13 A. Sorry. No, I did not. 14 Q. Did you ask Mr. Yousry who that man was? 15 A. No, I didn't. 16 This was the period when I was cut off from the 17 Sheikh. I think I basically sent it to the two of them; 18 Mr. Yousry to see if it would be read to the Sheikh in one of 19 his phone calls, and to Mr. Sattar just for informational 20 purposes. 21 Q. And let me turn two pages and there is attached to this 22 exhibit, there is a fax cover sheet with Mohammed Yousry's name 23 on it, is that correct? 24 A. That's right. 25 Q. And that's dated September 25th, 2000. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8541 4B95SAT4 Stewart - cross 1 And then, behind that cover sheet you have -- there is 2 a cover sheet -- fax cover sheet addressed to Mr. Sattar with 3 the same date, is that right? 4 A. That's right. 5 MR. DEMBER: May I approach the witness, your Honor? 6 THE COURT: Yes. 7 Q. Now, Ms. Stewart, I have just handed you two government's 8 exhibits which are in evidence, Government Exhibit number 11 9 and Government Exhibit number 12, in evidence, is that right? 10 A. That's right. 11 MR. DEMBER: May I display Government Exhibit number 12 11, your Honor? 13 THE COURT: Yes. 14 Q. That is one of those Federal Express airbills from Pat 15 Fitzgerald addressed to Stanley Cohen, is that correct? 16 A. That's right. 17 Q. And turning to the first page, is one of those cover 18 letters dated April 5th, 2001, which is addressed to Mr. Cohen, 19 which basically indicates that the package includes a copy of 20 the Special Administrative Measures and an attorney affirmation 21 for you to sign? 22 Is that correct? 23 A. That's correct. 24 Q. Behind that page there appears to be an attorney 25 affirmation, correct? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8542 4B95SAT4 Stewart - cross 1 A. That's correct. 2 Q. This is a two-page -- this was the new or the modified 3 attorney affirmation that came into existence sometime in 4 January of 2001, is that correct? 5 A. I think it was a little later than that but for me at any 6 rate. I think maybe for Mr. Clark and Mr. Jabara it was in 7 January. For me it was sometime in February, I think. 8 Q. Was it your understanding when you got this package of 9 documents in the mail that this attorney affirmation was 10 essentially the same or identical to the one that Mr. Jabara 11 and Mr. Clark had signed earlier in the year? 12 A. I'm not sure I knew that. I knew it contained the language 13 that I think I had also, or close to the language that I had 14 suggested. 15 Q. But this was different than the one you had signed back and 16 dated on May 16th, 2000 -- 17 A. Oh, yes. 18 Q. -- that was in effect when you made your visit to Abdel 19 Rahman in May 2000, correct? 20 A. That's right. 21 Q. And behind the attorney affirmation there is a copy of this 22 Special Administrative Measures, is that correct? 23 A. That's correct. 24 Q. And that's dated March 26, 2001, correct? 25 A. It is. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8543 4B95SAT4 Stewart - cross 1 Q. And does this appear to be that, an eight-page version of 2 the Special Administrative Measures that we have talked about 3 before? 4 A. It is. 5 MR. DEMBER: Now, your Honor, may I display Government 6 Exhibit 12, which is in evidence? 7 THE COURT: Yes. 8 Q. Ms. Stewart, this is -- take a look at number 12, do you 9 have it before you? 10 A. I do. 11 Q. This is actually the attorney affirmation that you signed, 12 is that correct? 13 A. That's right. 14 Q. And just to jump ahead ourselves for a moment, turn to the 15 second page; that has your signature on it? 16 A. It does. 17 Q. And it's dated May 7th, 2001? 18 A. Yes. 19 Q. Now, let's go back to the front, first page of this 20 affirmation, shall we? Would you just read for us where it 21 starts with your name, "Lynne Stewart," through the first item 22 of paragraph 1 until it goes to, I believe it is six lines down 23 to the word "terms." Would you read that for us, please? 24 A. Yes. 25 "Attorney's Affirmation. Lynne Stewart, pursuant to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8544 4B95SAT4 Stewart - cross 1 28 U.S.C. Section 1746, hereby affirms under the penalties of 2 perjury the truth of the following: 3 1. I am counsel of record for inmate Omar Abdel 4 Rahman (USMS #34892-04) and have read the "notification of 5 Special Administrative Measures" for inmate Omar Abdel Rahman, 6 dated March 26, 2001, and consisting of eight (8) pages. I 7 understand the restrictions contained in that document and 8 agree to abide by its terms." 9 MR. DEMBER: Your Honor, may I approach the witness 10 for a moment? 11 THE COURT: Yes. 12 Q. Ms. Stewart, I'm going to hand up to you a copy of 13 Government Exhibit number 7 in evidence, which is -- 14 Ms. Stewart, why don't you, if you can, place in front of you 15 Exhibit number 12 and number 7. Do you have those together? 16 A. I do. 17 Q. Okay, good. 18 Let me ask you to go down to paragraph number 2 in the 19 Exhibit number 12; that's the more current attorney affirmation 20 you were just read from? 21 A. Yes. 22 Q. And could you read for us, starting with the second 23 sentence in that paragraph, the word "Moreover." Could you 24 read that to us to the end of the paragraph? 25 A. In Exhibit number 12, is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8545 4B95SAT4 Stewart - cross 1 Q. In 12, which is the May 2001 affirmation that you signed. 2 A. "Moreover, I shall only be accompanied by translators for 3 the purpose of communicating with inmate Abdel Rahman 4 concerning legal matters. I further specifically understand 5 that the meetings shall not be for the purpose of presenting 6 statements to the defense team for further dissemination to 7 third parties, including the media. I will only allow the 8 meetings to be used for legal discussion between Abdel Rahman 9 and me." 10 Q. Now, Ms. Stewart, you have Government Exhibit number 7 in 11 front of you? 12 A. I do. 13 Q. I want you to look, if you would, at paragraph number 2 on 14 Exhibit number 7. Do you see that? I asked you to start 15 reading where it said the word "Moreover," is that correct? 16 A. Yes. 17 Q. And that sentence, the sentence on Exhibit number 7 which 18 is the final sentence in that version of the attorney 19 affirmation, reads identical to the one you just read, is that 20 correct? 21 My question is, is that sentence identical to the one 22 you just read, the first sentence you just read from paragraph 23 2? 24 A. It's identical to the first sentence I read in the later 25 affirmation, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8546 4B95SAT4 Stewart - cross 1 Q. Now, from the one you just -- that's the last sentence in 2 the May 16th, 2000 version of paragraph number 2, is that 3 right? 4 A. That's right. 5 Q. Let me put back Exhibit number 12. 6 Number 12 obviously included that sentence but also 7 the additional sentence you just read for us, is that correct? 8 A. Yes. 9 Q. Where it starts: "I further specifically understand." You 10 just read that conditional sentence? 11 A. I did. 12 Q. So that was new and -- new or a change to the attorney 13 affirmation to the one you signed in May 2000, correct? 14 A. Yes. 15 Q. Now, would you read for us all of paragraph number 3 on 16 Exhibit number 12, which is the May 2001 attorney affirmation? 17 A. "3. I further understand that neither I nor any member of 18 my office shall forward any mail received from inmate Abdel 19 Rahman to a third person. Nor shall I use my meetings, 20 correspondence or phone calls with Abdel Rahman to pass 21 messages between third parties (including, but not limited to, 22 the media) and Abdel Rahman. I further specifically understand 23 that I shall not broadcast messages for Abdel Rahman directly 24 or indirectly to or through the media, including, but not 25 limited to, messages concerning Abdel Rahman's views - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8547 4B95SAT4 Stewart - cross 1 positive, negative or neutral - concerning the propriety of 2 violence. I shall not pass any mail received on to any third 3 parties and shall ensure that all mail received is translated 4 by a cleared interpreter and reviewed by me or other cleared 5 counsel. I further understand that if Abdel Rahman wishes to 6 communicate in any way through the media, he shall only do so 7 by making a request through the Bureau of Prisons." 8 Q. Now, Ms. Stewart, I want you to go back for us and compare 9 paragraph number 3 on Exhibit number 7, which is the May 2000 10 attorney affirmation, with paragraph number 3 in the May 2001 11 affirmation that you just signed. 12 Is it true that the first two sentences of the May 13 2001 -- first two sentences in paragraph 3 in the May 2001 14 affirmation appear as the only two sentences in paragraph 3 in 15 the May 2000 affirmation, is that correct? 16 A. Do you want to run that by me again? 17 Q. Gladly. 18 Do you have the -- 19 A. I have the two of them. 20 Q. Hold on for a moment. 21 MR. DEMBER: Your Honor, with your permission, your 22 Honor, to make it a little easier for everyone, including me, 23 may we display on the overhead, to the jury, Government's 24 Exhibits 7 and 12, side-by-side, for the jury? 25 THE COURT: Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8548 4B95SAT4 Stewart - cross 1 Q. Ms. Stewart, can you see the monitor? 2 A. I can. But I have them in front of me. 3 Q. Just so the jury is oriented to what we are talking about, 4 would you look at the monitor for a moment? 5 A. Sure. 6 Q. Is it on your monitor? 7 A. It is on my monitor, yes. 8 Q. Is the paragraph, the section on top of the display all of 9 paragraph 3 in the May 2000 attorney affirmation? 10 A. Yes, it is. 11 Q. And the section which is on the lower part of the screen is 12 a part of the paragraph 3 in the May 2001 affirmation, is that 13 correct? 14 A. That's correct. 15 Q. So there is more language that you read to us which was 16 added to the May 2001 affirmation, is that correct? 17 A. That is correct. 18 Q. Thank you. 19 Ms. Stewart, let me just ask you to turn to the, and I 20 will display it just on the Elmo, if I can. 21 The final paragraph of the May 2001 affirmation is 22 that added language which was modified a number of times at 23 Mr. Clark's suggestion, and I believe you had made that 24 proposal, or Mr. Cohen had made the proposal in his February 25 letter to Mr. Fitzgerald as well; that's the paragraph that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8549 4B95SAT4 Stewart - cross 1 talks about Luxor and the nature of the crimes your client was 2 convicted of and that sort of thing? 3 A. Yes. 4 Q. And that's far more extensive than the paragraph 4, that 5 kind of language didn't appear in the original paragraph 4 on, 6 in the May 2000 affirmation, did it? 7 A. No, it did not. 8 Q. I just show that to the jury. That's the language there. 9 A. That's the May 2000. 10 Q. Thank you. 11 Now, Ms. Stewart, let me -- you signed the May 2000 -- 12 well, you signed the affirmation in 2001 on May 7th, is that 13 correct? 14 A. That's correct. 15 Q. And at the time you had signed it you had not seen or 16 spoken to your client since June 27th, 2000, correct? 17 A. I think that's the date, yes. 18 Q. And that was when you had a telephone call with your client 19 on that date, is that correct? 20 A. Yes. 21 Q. And since that time you had no contact with him? 22 A. No contact with him. 23 Q. Now, were you aware of the fact that at some point in 24 January or early in 2001, the other attorneys on the, who were 25 representing him, Mr. Clark, Mr. Jabara and Mr. Schilling, had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8550 4B95SAT4 Stewart - cross 1 started having telephone calls with him after they had signed 2 their affirmations? 3 A. Yes. 4 As I said, I thought it was late in January but it 5 could have been early. 6 Q. And were you in contact with Mr. Clark and Mr. Jabara and 7 Mr. Schilling after they started renewing their contact with 8 Abdel Rahman? 9 A. Mr. Clark and Mr. Jabara were in and out of the country a 10 lot traveling, but if they were in New York I would have had 11 contact. And I think Mr. Schilling was pretty usually there so 12 I probably would have had some contact. 13 Q. And did you, at any point in time during that time when, 14 before you got to see him again, or talk to him again, inquire 15 of the other attorneys about your client, Abdel Rahman? Did 16 you ask them about him? 17 A. I probably did in a general way. Just -- you know, how is 18 he doing? Has anything changed? Everything is okay? 19 Probably not much more than that. I don't think there 20 was anything specific. 21 Q. You eventually -- you signed the affirmation on May 7th, 22 2001, is that correct? 23 A. Yes. 24 Q. And you didn't see your client actually until July of 2001, 25 is that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8551 4B95SAT4 Stewart - cross 1 A. Yes. There was an earlier trip planned I think in May, but 2 the prison canceled that visit for no reason. They just 3 canceled it, so. 4 Q. They didn't give you a reason? 5 A. No. And then we went in July. 6 Q. After you signed the affirmation in May 2001 -- May 7th, 7 did you have any calls with Abdel Rahman prior to your visit in 8 July 2001? 9 A. I don't think so. I don't believe I did. 10 Q. Now, were you aware of whether or not any of the other 11 attorneys had visited Abdel Rahman between the time you saw him 12 in May 2000 and the time you saw him again in July 2001? 13 A. I don't think anyone visited him during that period. 14 Q. Was it your understanding, though, that they had regular 15 telephone calls with him once or twice a week? Is that your 16 understanding? 17 A. Yes, except during that one period in November into to 18 December I guess it must have been. 19 Q. Now, I believe that when you told us that when you 20 signed -- let me put it back up for you so it is helpful. 21 When you signed the May 2001 affirmation -- and when I 22 say May 2001 affirmation I'm talking about the one you signed 23 on May 7, 2001. 24 A. I have it, yes. 25 Q. I believe you told us that you had signed the affirmation SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8552 4B95SAT4 Stewart - cross 1 either provisionally or conditionally, is that right? 2 A. Yes. 3 Q. And did you mean by that that you were signing it and 4 promising to abide by its conditions but only for a single 5 visit with your client Abdel Rahman? 6 A. Yes. It was -- I think the provisionally went to it was 7 for a single visit if the client, Sheikh Abdel Rahman, told me 8 that he wanted me to sign it, that he approved of the terms in 9 it, and I would sign on and continue in effect. 10 If he said no, that it had too much verbiage or 11 language that he didn't like or whatever -- for whatever 12 reason, if he had told me no, then I would have come back and 13 alerted the U.S. Attorney's office that it was not going 14 forward. 15 Q. But when you signed it -- and you signed it with the idea 16 or condition that you would obviously be allowed to go in and 17 speak with him, is that correct, and visit him? 18 A. Yes, that was the rationale. Yes. 19 Q. And you signed it and in fact made promises and committed 20 yourself, under oath, to abide by its conditions for that one 21 visit, is that correct? 22 A. I signed it for the one visit. 23 Q. And you promised, did you not by signing it, by its 24 language, to abide by its conditions for that one visit, is 25 that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8553 4B95SAT4 Stewart - cross 1 A. Yes, I agreed to it for the one visit. 2 Q. And then you, as you indicated, speak to your client, see 3 if he would approve your continuing to abide by those 4 conditions and the affirmation and let the United States 5 Attorney's office know one way or the other, is that right? 6 A. That's right. 7 Q. And I believe, just from the recording of that visit in 8 July 2001, you asked your client whether he approved your 9 signing the affirmation and he indicated that he did, is that 10 correct? 11 A. That's right. 12 MR. DEMBER: Your Honor, it is 4:30. Do you want me 13 to go further? 14 THE COURT: No. We can break for the day. 15 Ladies and gentlemen, we will break for the day. It's 16 very important to please, please, continue to follow all of my 17 instructions. Don't talk about this case at all among 18 yourselves or with anyone else when you go home this evening. 19 Please remember not to look at or listen to anything 20 to do with the case. If you should see or hear something 21 inadvertently, please, simply turn away. Don't look at or 22 listen to anything to do with the case. 23 Always remember to keep an open mind until you have 24 heard all of the evidence, I have instructed you on the law and 25 you have gone to the jury room to begin your deliberations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8554 4B95SAT4 Stewart - cross 1 Fairness and justice to the parties requires that you do that. 2 With that, have a very good evening and I look forward 3 to seeing you tomorrow morning, hopefully at 9:30. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8555 4B95SAT4 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart may step down. 3 (Witness steps down) 4 THE COURT: Could I just make one request? I 5 noticed -- and I haven't noticed it before, but I don't mind a 6 cup of water on the jury rail, but the documents really should 7 be on the back rail rather than on the jury rail. 8 MR. DEMBER: Yes, your Honor. Sure. 9 THE COURT: I don't like getting into the jury's 10 space. 11 MR. TIGAR: Your Honor, I did not object at the time 12 but I do object to any further use of the term "under oath" in 13 interrogating Ms. Stewart about the affirmations. 14 This is not a perjury case. We know very well why it 15 is not a perjury case, because of the potential of the Ruhnke 16 defense. And there is no extra boost that the government 17 should get from having decided to use that statute. 18 MR. DEMBER: Your Honor, I have no intention of doing 19 that again. I didn't realize that I had said that. 20 THE COURT: Okay. 21 MR. DEMBER: That is not an issue. 22 THE COURT: All right. 23 MR. DEMBER: Your Honor, I have a request. 24 THE COURT: Yes. 25 MR. DEMBER: And the request is -- and I didn't want SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8556 4B95SAT4 Stewart - cross 1 to break up the examination because we have spent too much time 2 with the jury out of the courtroom today so I saved it for now. 3 What I am requesting, your Honor, is Ms. Stewart, by 4 her testimony today, has authenticated for us two sections of a 5 recorded interview that she did with Greta Van Susteren. And 6 while -- and in doing so, essentially acknowledging that those 7 questions were asked or comments were made and she responded in 8 the way she did, she has authenticated two sections of a 9 recording that we have turned over to the defense in discovery, 10 which is a recording of that interview that Ms. Stewart did. 11 We are requesting to be able, tomorrow morning, to play those 12 two sections which are relatively brief, to the jury before the 13 completion of the cross-examination. 14 MR. TIGAR: We object to that, your Honor. 15 Why publish them twice? Counsel has a choice of 16 publishing. I see no reason why the tape should be presented. 17 It will be presented with all of the Fox News logos and so on. 18 It will have Greta Van Susteren saying things that are 19 inadmissible hearsay except for things not offered for the 20 truth. I object to the playing of it, your Honor. He asked 21 his questions and that's it. 22 MR. DEMBER: Your Honor, those are -- those 23 questions -- 24 MR. TIGAR: She also said she never saw it, your 25 Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8557 4B95SAT4 Stewart - cross 1 MR. DEMBER: She doesn't have, to, your Honor. The 2 whole reason for asking her the questions the way I did was to 3 have her authenticate. She did that for us. I have no other 4 way of authenticating it other than asking her those questions. 5 She has now authenticated it and they are admissions, 6 your Honor, out-of-court statements by this defendant offered 7 by a party opponent against the defendant. Those are the 8 actual statements as they were made. 9 I believe we have laid the foundation, that's why we 10 asked the questions the way we did. They weren't objected to. 11 And obviously, your Honor, besides the fact that those 12 were questions and those were the questions or comments made to 13 Ms. Stewart and those were her answers, the jury should also be 14 entitled to see -- we propose, they should also be able to see 15 her demeanor, how she answered those questions when they were 16 posed to her. 17 And so, for all of those reasons, we think it is 18 admissible. 19 MR. TIGAR: Your Honor, the only thing. That wasn't 20 the only way to authenticate it. They could have played it for 21 her on her monitor out of the sight of the jury. There are 22 plenty of ways to authenticate documents other than by reading 23 them into evidence. Authentication is a process of 24 establishing admissibility without disclosing to the jurors the 25 contents of the offered document. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8558 4B95SAT4 Stewart - cross 1 I didn't make any objection at the time because he is 2 confronting the witness and he is giving her a chance to 3 answer. We object to the double publication. 4 (Continued on next page) 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8559 4b9esat5 1 MR. DEMBER: Your Honor, just because there's only one 2 way to present the video in this courtroom, that's by putting 3 it on the big screen, we would have had to remove the jury once 4 again from this courtroom, delay the presentation to them to 5 have done that. 6 I chose a different method of authentication. There 7 is no single way necessarily to authenticate a piece of 8 evidence. I chose that certain way. It wasn't objected to. 9 It's been authenticated now, you know, in order to save the 10 time and be more productive with this jury. And obviously we 11 haven't been very productive in their presence today because of 12 delays and other things, and probably because of me. I'm not 13 saying -- blaming anybody. 14 But they have been out of the courtroom a lot today. 15 And I didn't want to risk, frankly, requesting once more that 16 they be removed to deal with this. I did what I did to 17 authenticate. And the issue is, is it authenticated or not? 18 Those are the original statements made by her. 19 MR. TIGAR: Excuse me, your Honor. I'm reminded 20 actually she didn't authenticate them. She didn't authenticate 21 the tape. All she said was, I met Greta Van Susteren on a 22 certain date. She asked certain questions. I made certain 23 answers. That's it. She hadn't seen the tape. 24 If the Court would like and the government would like, 25 we'll ask Ms. Stewart to look at the tape overnight and then SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8560 4b9esat5 1 we'll take a position. And that might very well include a 106 2 issue. 3 THE COURT: Well, is it the full -- 4 MR. DEMBER: No, your Honor. It's just the excerpts 5 that I read to her and that I -- I'm only -- if he wants to 6 make a 106 motion -- 7 THE COURT: Stop. Stop. 8 MR. TIGAR: Excuse me, your Honor. It was I that made 9 the -- 10 THE COURT: The stop is not directed to Mr. Dember. 11 Go ahead. 12 MR. DEMBER: Your Honor, if Mr. Tigar's making a 106 13 motion, that's a different issue. And I have the full 14 transcript of the recording for your Honor and for counsel, if 15 he was making a 106 objection. That wasn't his objection until 16 a moment ago. 17 If the objection is we didn't lay a proper -- there's 18 no proper foundation laid, we have. Whether she sees the video 19 or not, the fact that she has authenticated the questions asked 20 and answers given is, we believe, sufficient to authenticate 21 those two excerpts that we propose to play. If now the 22 objection is a 106 objection, that's a whole different issue 23 completely, and we're prepared to deal with that, you know, by 24 giving to all parties and your Honor the excerpted transcript 25 as well as a full transcript. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8561 4b9esat5 1 THE COURT: OK. The defendant offered to review the 2 video and make any 106 arguments, and you can provide the 3 transcript and the video -- do you have a copy? 4 MR. DEMBER: Your Honor, we have excerpted versions of 5 the two sections that we read for each counsel. We have the 6 excerpted transcripts. We have the full transcripts. 7 So we can provide that to all counsel this evening. 8 They can look at them, and we can certainly deal with this 9 tomorrow morning, if there are 106 objections to be made. 10 THE COURT: It appears to me at the moment that there 11 was -- despite what the defendants said now that -- about 12 reviewing the whole video for purposes of authentication, the, 13 you know, authentication -- the original objection was not 14 authentication. The original objection was publishing the 15 statements twice for the jurors. 16 And authentication can be done by various means. And 17 it would appear that -- and the parties can give me letters and 18 look at the whole transcript and make any 106 arguments -- that 19 identifying the questions and answers as the questions and 20 answers that were, in fact, asked and given would be a means of 21 authentication. 22 Now, the parties can look at the full transcript and 23 give me letters quickly on what their positions are on that. 24 And I'll see you at -- I guess we should do it at 8:45 tomorrow 25 morning, if that's possible. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8562 4b9esat5 1 Is there any reason we could not do it at 8:45? 2 Everyone is shaking their head enthusiastically no. 8:45 will 3 be just fine. OK. 4 MR. TIGAR: Your Honor, do I understand that the 5 government doesn't have a tape of the entire program? 6 MR. DEMBER: Your Honor, Mr. Tigar should understand 7 that he's got a tape of the entire program that's been provided 8 in discovery, so that all parties have the entire tape. 9 MR. TIGAR: Well, I had understood Mr. Dember to say 10 he didn't have one but that -- and that was my question. I 11 believe that we have one, although as I stand here that's my 12 recollection. 13 THE COURT: And -- 14 MR. DEMBER: Your Honor, we have -- for each counsel, 15 the two -- we put it on two separate tapes, the two excerpts 16 that I asked Ms. Stewart about. We have copies of those two 17 excerpts for counsel, the videos of those two excerpts. They 18 were provided the full video in discovery. So we haven't -- 19 THE COURT: Each of the defendants were provided a 20 full video? 21 MR. DEMBER: Yes. 22 THE COURT: And the government, I take it, kept a full 23 video for itself also? 24 MR. DEMBER: We have it here, your Honor, in case 25 somebody wants to look at it here. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8563 4b9esat5 1 THE COURT: How long is the full video? 2 MR. DEMBER: It's 10 minutes, 15 minutes at most, your 3 Honor. It's not very long. 4 THE COURT: Do you have an extra copy for the Court so 5 I can watch the full video as well as the transcript? 6 MR. DEMBER: Yes, your Honor. 7 THE COURT: OK. You can pass them up at the end. 8 MR. DEMBER: I will. 9 THE COURT: OK. Anything else? 10 MR. DEMBER: No, your Honor. 11 THE COURT: Well -- 12 MR. STERN: Judge, we need some guidance on when to 13 get witnesses. We've had people sitting at their desks now for 14 a few days, and I have no understanding how long this whole 15 process is going to go on. I'm not faulting anyone for that 16 but, you know, we can't ask people to stay for days and days in 17 one place who have busy lives. 18 So if someone could give me some idea of when I should 19 tell witnesses to come, it would certainly be useful to us. 20 I'm not even sure who I'm asking, but someone must know better 21 than I do. 22 MR. DEMBER: If it's helpful, your Honor, if it's 23 helpful, I pray to be done, outside perhaps playing either the 24 entire or an excerpted version of that videotape, I hope to be 25 done in an hour with my cross. Within an hour. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8564 4b9esat5 1 MR. TIGAR: Are there any other similar exhibits as to 2 which 106 issues might arise? 3 MR. DEMBER: No, no, there aren't. 4 THE COURT: We lost, oh, about an hour and a half 5 because of unavoidable problems of transportation today, and 6 then we lost another hour and a half probably, not including 7 lunchtime, because of the legal issues that were raised. 8 If there are going to be any other legal issues, they 9 ought to be raised with me now. I mean, I can understand why 10 the issues were not brought up in advance, although 11 conversations between the defendant and her counsel should have 12 at least raised an issue to be discussed in advance. 13 MR. DEMBER: Your Honor, I'm just checking through my 14 notes and I don't see any controversy in them for the remainder 15 of the cross. So I don't think there's really any real issues 16 there. 17 THE COURT: And -- 18 MR. PAUL: Your Honor, may my client be excused? He's 19 prepared to waive his presence for the remainder of this 20 continued -- 21 THE COURT: Yes, certainly. Let me just -- the only 22 thing that I had intended to do is we have the one issue with 23 Mr. Yousry, with respect to the Mr. Yousry documents. And if 24 Mr. Sattar wishes to waive his presence -- 25 MR. PAUL: He does, your Honor. That's my SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8565 4b9esat5 1 understanding as well, that there perhaps will be further 2 argument. I'd like to waive his presence for that. 3 MR. RUHNKE: Just whether this eases the pressure on 4 that for Mr. Sattar or not, that issue does not now have to be 5 resolved until next week, given where we are now. That witness 6 will not be reached tomorrow. 7 THE COURT: All right. Well, then I'll take it up 8 tomorrow, and I -- all right? Is there anything else before I 9 let everyone go? Please -- yes. 10 MR. STERN: I hate to be persistent about this, but is 11 it OK if I have people here at 2:00, does that seem realistic? 12 THE COURT: It's a fair comment, Mr. Stern, not 13 directed to me. 14 The original estimate from the government side was 15 that the cross would be completed within a couple of hours, 16 which was the estimate for yesterday, I think, and there were 17 no interruptions yesterday. Am I -- 18 MR. DEMBER: I believe you asked me at the end of the 19 day, your Honor. 20 THE COURT: No, I thought I asked you last week with 21 respect to what the progress would be. 22 MR. DEMBER: Oh, yes. I had hoped to be done at the 23 end of Monday, that's correct, your Honor. 24 THE COURT: No. I thought last week's estimate was a 25 couple of more hours. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8566 4b9esat5 1 MR. DEMBER: No, your Honor. I think I told you -- my 2 recollection is, your Honor, I could be wrong -- 3 THE COURT: The back table is all shaking their heads 4 affirmatively expecting a couple of hours on Monday. 5 MR. DEMBER: Oh, no, I never said that, your Honor. I 6 said sometime on Monday, and I prefaced that by telling you I 7 was a terrible estimator of time on these things; that I was 8 hoping sometime on Monday. I didn't say a couple of hours. I 9 said yesterday, I said I hoped to be done in a couple of hours 10 today. But I did not -- if that was -- if I misspoke or it was 11 misunderstood -- 12 THE COURT: There were -- the record will be what it 13 is. The estimate, then, yesterday, which surprised me, was a 14 couple of hours, because I thought that that was similar to the 15 estimate that had been given with respect to how long Monday 16 would have taken. 17 So the estimate now is about an hour tomorrow. And so 18 the question is, how long for any redirect and recross, and 19 I -- Mr. Tigar? 20 MR. TIGAR: Oh. As of right now, your Honor, if the 21 cross-examination were to stop, redirect would be under an 22 hour, well, under an hour. And I'll -- I've kept Mr. Yousry -- 23 excuse me, Mr. Stern and Mr. Ruhnke apprised of where I thought 24 I was, based on, you know, the whole pile of notes that I've 25 been doing. But that's my best estimate of it. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8567 4b9esat5 1 THE COURT: Based on all of those representations, it 2 seems clear that Mr. Yousry should be proceeding tomorrow. 3 MR. RUHNKE: Yes, your Honor. What we're trying to 4 say is, I think, based -- 5 THE COURT: How much? 6 MR. RUHNKE: What I'm hearing is I believe if we have 7 witnesses here at 2:00, we'll be fine, between the cross and 8 lunch and break or two. That's what we'll plan to do. 9 THE COURT: OK. 8:45 tomorrow. Get me any -- pass 10 the exhibits up to my clerk, get me any letters, please. 11 (Adjourned to Wednesday, November 10, 2004, 8:45 a.m.) 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8568 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 8456 4 Cross By Mr. Dember . . . . . . . . . . . . 8456 5 GOVERNMENT EXHIBITS 6 Exhibit No. Received 7 610 . . . . . . . . . . . . . . . . . . . 8517 8 609 . . . . . . . . . . . . . . . . . . . 8520 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