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