8569 4BA5SAT1 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 10, 2004 8 8:58 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 (Page 8570 SEALED by order of the Court) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8571 4BA5SAT1 1 (In open court) 2 THE COURT: The marshal advised that the jury has 3 arrived. 4 I tried to dispose of issues by fax last night, faxed 5 orders, so that people would know in advance of today where 6 things were. 7 Is there anything to be raised with me? 8 MR. DEMBER: Your Honor, just with respect to your 9 ruling regarding the interview of Ms. Stewart by -- 10 MS. SHELLOW-LAVINE: We can't hear you at all. 11 MR. DEMBER: Sorry. 12 Your Honor, with respect to the ruling that you made 13 last night with respect to the interview tape of Ms. Stewart by 14 Ms. Van Susteren, we are going to comply, obviously with your 15 order in terms of redacting the tape. I doubt we will be able 16 to have that completed before the completion of my 17 cross-examination. 18 It is our intention at this point, your Honor, to 19 merely move the recording as redacted, as it will be, into 20 evidence. We can do that, certainly, before the jury. And 21 then we will deal with it later in the case rather than to ask 22 your Honor to hold the proceedings or to delay continuing with 23 the examinations until that's done. 24 It may take some time, frankly, because of the amount 25 of work that needs to be done on the tape in order to make it SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8572 4BA5SAT1 1 compliant with your order. 2 So, that's our intention. I just wanted your Honor to 3 know that and obviously the defense to know it as well. 4 MR. TIGAR: Your Honor, I would not be in a position 5 to react to an offer, in evidence, of an item that I have not 6 seen. And I respectfully request that the Court not rule on 7 the admissibility of an item that the Court has not seen. 8 THE COURT: True. But if the tape complies with my 9 order, I would intend to rule in accordance with the order that 10 the tape is admissible. And certainly the parties can look and 11 see if the tape complies with my order. 12 I will accept your suggestion that I can't rule on it 13 until we all see it, but that's what I would intend to do. 14 MR. DEMBER: Your Honor, because of the amount of 15 technical work that would need to be done to the recording in 16 order to make it compliant with your order, I simply don't want 17 to lose the opportunity to offer it into evidence and I just 18 don't think it is practical to delay this trial and the -- you 19 know, the questioning of witnesses because of the fact that 20 just, mechanically, it will take some time to adopt the tape to 21 your Honor's order. 22 And so, my only concern, frankly, is not losing that 23 opportunity to offer it into evidence. Whether I do it on the 24 record conditionally now or, and am permitted by your Honor to 25 do it once all the parties have seen the redactions to the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8573 4BA5SAT1 1 recording as well as your Honor and determined that it is 2 consistent with your Honor's ruling; as long as I retain that 3 right and we retain that right to be able to do that, then I 4 have no problem with not offering it at this very moment or 5 today. 6 That's our only concern. 7 MR. TIGAR: I understand that the government may 8 eventually offer it and that if it complies with the Court's 9 order, it comes in. I understand that part. 10 I will say that we had, given the fact that the 11 government had opened this up, we had prepared a redacted 12 transcript of the interview in accordance with your Honor's 13 order. And in redirect examination I intend to go through that 14 redacted transcript in its entirety with Ms. Stewart in order 15 that she is afforded the opportunity to explain or deny the 16 prior inconsistent statements in accordance with Rule 613B. 17 MR. DEMBER: Your Honor, I too have a redacted 18 transcript consistent with your order from last night. I 19 certainly have no objection to any of that questioning 20 whatsoever and will not object to such question. There is 21 nothing wrong with that. So, if that's the only concern there 22 shouldn't be an issue here. 23 THE COURT: All right. Well, then the parties can, at 24 the very least, at an appropriate time, offer the tape if it 25 were -- I don't know when it will be available but it can go in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8574 4BA5SAT1 1 as part of the government's rebuttal case. 2 MR. DEMBER: Exactly, your Honor. 3 Just one clarification. I heard Mr. Tigar mention 4 about he prepared a transcript. Obviously this is an interview 5 in English. I assume he is not intending to offer the 6 transcript because we certainly would object to that. Or 7 display it to the jury for that matter. 8 THE COURT: I assume the transcript would be used to 9 question whether the witness was also asked these questions and 10 gave these answers? 11 MR. TIGAR: Yes, your Honor. 12 I intend to read the transcript. That's what we are 13 going to do. We are going to go back and forth -- And were you 14 asked this question and gave this answer? 15 At the time the recording is offered we will offer our 16 transcript as an aid to the jury. 17 THE COURT: I assume that the transcript that you have 18 is the same as transcript that the government has. 19 MR. TIGAR: It was furnished to us by the government, 20 your Honor. 21 MR. DEMBER: Your Honor, the new transcript, which I 22 prepared this morning, consistent with your order, certainly 23 will be available when we offer it, most likely as your Honor 24 suggested or indicated, in the rebuttal case. And we may, very 25 well, may display it while the recording is played for the jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8575 4BA5SAT1 1 at that time. 2 My only point is that at this point in time, if 3 Mr. Tigar wishes to question Ms. Stewart about the other parts 4 of that interview, he shouldn't be permitted to do it by 5 displaying that transcript. 6 I didn't display the transcript yesterday when I 7 questioned Ms. Stewart. If it's a document that he needs to 8 refresh her recollection on, with, in order to assist her in 9 answering his questions, that's perfectly fine. But that 10 doesn't mean it gets displayed to the jury. 11 THE COURT: I agree with that. 12 I mean the transcript -- and I don't think there is 13 disagreement -- the transcript can be an aid to the jury in 14 listening to the tape only if they were listening to the tape. 15 And so long as there is an objection to playing the tape 16 itself, then the transcript is used for questions and answers 17 with the witness. 18 MR. TIGAR: Yes, your Honor. The tape doesn't exist 19 as of now, so there is no question about that. 20 I had intended to ask Ms. Stewart to look at that and 21 actually read out from the transcript the past recollection 22 recorded. That's the procedure I had intended to follow. 23 If that's not permitted, then I will ask it in the 24 form of, Do you recall? And so on. 25 MR. DEMBER: Your Honor, we don't believe that the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8576 4BA5SAT1 1 transcript prepared by the government and provided to the 2 defense is a past recollection recorded by Ms. Stewart. So to 3 allow her to read off of it would not be appropriate under that 4 exception to, essentially, the rule. 5 Your Honor, just so it is clear, I have no objection 6 to Mr. Tigar doing what I did yesterday which is saying, or 7 questioning her by saying did you, were you asked this question 8 during the interview and did you give this answer, just as I 9 did with Ms. Stewart yesterday. I have no objection if he does 10 the same thing with Ms. Stewart this morning when he questions 11 her about it. 12 THE COURT: And I assume that if you have further 13 questions about that, or if Mr. Tigar had further questions 14 about that, either side could give Ms. Stewart the transcript 15 and ask, were you asked this question and what did you say? 16 Does the document refresh your recollection as to what you said 17 as? 18 And then there would be an answer. Probably not as 19 precise as in the transcript, but probably similar. 20 MR. DEMBER: Right, your Honor. 21 THE COURT: To the best of the witness' current 22 recollection refreshed; a subject eventually the jury will have 23 the tape to listen to, so. 24 MR. DEMBER: Your Honor, I thought my offer was more 25 generous. I wouldn't object if Mr. Tigar does what I did SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8577 4BA5SAT1 1 yesterday, read Ms. Stewart the question and ask if in fact she 2 was asked the question and gave that answer. 3 So, obviously they can do it either way but she 4 shouldn't be reading off of a document that's not in evidence. 5 That's my only point. 6 MR. TIGAR: My position, your Honor, was that this is 7 a memorandum or record concerning a matter about which the 8 witness once had knowledge and therefore the memorandum or 9 record may be read into evidence. The rule doesn't say who 10 gets to read it. That's the question. 11 And I don't want to trespass on your Honor's ruling so 12 I would like to be clear. It is our request that Ms. Stewart 13 be able to read it because I think that's what the rule 14 permits. 15 But if your Honor doesn't see it that way, obviously 16 we won't even start down that road. 17 THE COURT: It doesn't -- the transcript made by the 18 government is not a document that was made or adopted by the 19 witness when the matter was fresh in the witness' recollection, 20 in the witness' memory and to reflect that knowledge correctly. 21 And it is also not shown and it would be difficult to 22 show, I think, in view of the witness' testimony yesterday, 23 that this is a matter that the witness has insufficient 24 recollection to enable the witness to testify fully and 25 accurately in view of the fact that the witness was able to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8578 4BA5SAT1 1 testify fully and accurately yesterday in response to the 2 government's questions: Were you asked this question, did you 3 give this answer? Yes. Yes, that's what I said as. 4 To suggest that it's only the in-between questions 5 that the witness lacks sufficient knowledge to be able to 6 testify that way would be not apparent. 7 MR. TIGAR: Then I will do it the way Mr. Dember did 8 it. 9 THE COURT: All right. 10 MR. TIGAR: Thank you. 11 THE COURT: How long does it take to -- everyone would 12 be advantaged if they actually had the tape. 13 MR. DEMBER: I'm sorry, your Honor? 14 THE COURT: How long does it take. 15 MR. DEMBER: To do? 16 THE COURT: The tape. 17 MR. DEMBER: Your Honor, as you recall from your 18 order, you have also directed us to remove some graphics on the 19 bottom and that is what I believe to be a far more complicated 20 process than simply cutting and cutting through a recording and 21 recording certain sections and not others. 22 Frankly our technical person, who we paged last night 23 and left messages, for just hasn't come in yet, so I'm probably 24 the least technical person in the courtroom. 25 So, I'm concerned about that, your Honor. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8579 4BA5SAT1 1 And plus there is, your Honor ordered the removal of 2 any images of Sheikh Abdel Rahman. 3 THE COURT: I thought there was only about one? 4 MR. DEMBER: There was only one, your Honor, in the 5 portions that your Honor has ordered that could be played. But 6 the problem with that is from viewing the videotape this 7 morning, again, there is conversation -- there is conversation 8 going on when the image is on the screen. 9 So, it is a question of cutting out -- not just 10 cutting out that section of the recording itself but just 11 cutting out just the photograph without redacting the voices 12 themselves. That, I think, may be more complicated than what 13 we are capable of doing ourselves in our office. It may take 14 some time to do. 15 That's the concern, your Honor. That -- the graphics 16 and that portion. 17 I mean I frankly -- of course it is only one image and 18 the jury has seen photographs of Abdel Rahman in the past. I 19 don't want to -- I'm not asking your Honor to reconsider that 20 part of the decision but it seems hardly prejudicial to have 21 his image which is only up there for a second or two, during 22 the interview, to have that redacted or require that redaction. 23 It is certainly going to cause us, I think, some additional 24 work getting the tape prepared. 25 THE COURT: Do the parties care about that image in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8580 4BA5SAT1 1 view of the dialogue that's going to go in? 2 I feel on the spectrum it's clear to me that the 3 reference to terror in the graphics must be redacted. As to 4 the image of Sheikh Rahman there was an objection. The image 5 is otherwise before the jury. There was an objection to the 6 image. 7 MR. TIGAR: Yes, your Honor, we did object. And if 8 indeed the technical person says that the marginal difficulty 9 of removing that is great once you get started on working on 10 it, then we will be in a position to say, okay, we will give up 11 on that. 12 But without knowing whether this is really the same 13 process, once you set up their machine it's the same process, 14 then we would like to stick where we are. 15 THE COURT: I understand -- I can understand that 16 there would be a process to selecting portions of the tape and 17 that that's probably not a very difficult process. I can 18 understand that there must be another process to redact the 19 bottom portion and that might well be a different process. 20 And then there could be a third process, too, to what 21 to do with the image while the dialogue is still on. If that 22 is a problem the defendants say they don't feel as strongly 23 about that and I have already indicated to you that the Court 24 doesn't either. 25 So, you should let us know. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8581 4BA5SAT1 1 MR. DEMBER: I will, your Honor. 2 THE COURT: Anything else? 3 May I talk to the lawyers at side bar? 4 (Pages 8582-8583 SEALED by order of the Court) 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 8584 4BA5SAT1 1 (In open court) 2 MR. FALLICK: Your Honor, may we go side bar? 3 THE COURT: Sure. 4 (Page 8585 SEALED by order of the Court) 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 8586 4BA5SAT1 1 (In open court) 2 THE COURT: Are we ready for the jury? 3 MR. TIGAR: Shall Ms. Stewart take the stand? 4 THE COURT: Yes, Ms. Stewart will take the stand. 5 Is everyone ready? 6 OFFICIAL REPORTER: Yes. 7 THE COURT: All right, bring in the jury. 8 The jury is still filling out forms. (Pause) 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8587 4BA5SAT1 1 (Jury present) 2 THE COURT: Good morning, ladies and gentlemen. 3 THE JURY: Good morning. 4 THE COURT: Good to see you all. 5 THE JURY: Thanks. 6 THE COURT: Ms. Stewart is on the stand. 7 Mr. Fletcher? 8 THE DEPUTY CLERK: Ms. Stewart, you are reminded that 9 you are still under oath. 10 THE WITNESS: Yes. 11 LYNNE STEWART, resumed. 12 THE COURT: Mr. Dember, you may proceed. 13 MR. DEMBER: Thank you, your Honor. 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 think we left off yesterday talking about 19 events that preceded your visit with your client, Abdel Rahman, 20 in July of 2001, is that correct? 21 A. Yes. 22 Q. And I think you told us yesterday and on previous days that 23 you had not seen your client before that July 2001 visit since 24 May of 2000, correct? 25 A. That's right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8588 4BA5SAT1 Stewart - cross 1 Q. And I believe you told us you had not spoken to him before 2 the July 2001 visit since June 27th, 2000? 3 A. I believe that's right. There might have been one call but 4 I'm not remembering it if there was. 5 Q. Over a year's period of time since you have seen him or 6 spoken to him, correct? 7 A. Right. 8 Q. And I believe you told us in your direct testimony that 9 before you went on the visit in July 2001, that you met with 10 Mr. Sattar, which was your usual practice? 11 A. I think so. I don't have a distinct memory of it but I 12 believe we did meet. 13 Q. Well, do you remember that he gave you letters and 14 correspondence that he wished for you to read to Abdel Rahman 15 and get responses to? 16 A. Right. I just don't remember whether we actually met or he 17 dropped it off or how it happened, but we definitely had that 18 when we went into the prison. 19 Q. Is it your recollection that you got those documents from 20 Mr. Sattar? 21 A. That would be -- yes, that would be the source. 22 Q. And when you brought those letters and correspondence into 23 the prison, did you submit any of those letters or 24 correspondence through the procedures that were laid out in the 25 SAMs as to how letters or correspondence may be permitted to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8589 4BA5SAT1 Stewart - cross 1 come into the prison to Abdel Rahman? 2 A. No, for the reasons I explained earlier. 3 Q. And you did, in fact, did you not, have Mr. Yousry read 4 those letters to Abdel Rahman during the course of the two-day 5 visit? 6 A. Yes. 7 Q. And in a number of cases Abdel Rahman in fact did respond 8 to a number of those letters and correspondence? 9 A. Yes. 10 Q. And when you got those responses from Abdel Rahman, did you 11 put those responses through the procedures that were described 12 in the SAMs before you took them out of the prison or 13 disseminated them to the persons they were addressed to? 14 A. No; for the reasons I had given earlier in the testimony. 15 MR. DEMBER: May I display Government Exhibit number 16 12 in evidence, your Honor? 17 THE COURT: Yes. 18 Q. Ms. Stewart, this is, just to remind you, your attorney 19 affirmation. And I turn the page, this is the one that you 20 signed on May 7th, 2001, is that correct? 21 A. That's correct. 22 Q. And this is the one that you signed, I think you told us, 23 provisionally, in order to get the visit with Abdel Rahman to 24 see whether or not he wanted you to continue to -- to sign the 25 affirmation to continue to operate under its requirements? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8590 4BA5SAT1 Stewart - cross 1 A. Yes. Basically for him to review it and to advise me as to 2 what he thought about it. 3 Q. And I asked you yesterday to read from the third paragraph 4 of the affirmation and let me just read the first two sentences 5 on paragraph three. It says: 6 "I further understand that neither I nor any member of 7 my office shall forward any mail received from inmate Abdel 8 Rahman to a third person. Nor shall I use my meetings, 9 correspondence or phone calls with Abdel Rahman to pass 10 messages between third parties (including, but not limited to, 11 the media) and Abdel Rahman." 12 MR. DEMBER: Your Honor, may I display for the jury a 13 section of Government Exhibit 1716X, which is the transcript of 14 a July 13th, 2001 visit, for purposes of questioning the 15 witness? 16 THE COURT: Yes. 17 Q. Ms. Stewart, let me show you. I will display the front 18 page, and that indicates it is the visits in Minnesota on July 19 13th, 2001 -- 20 A. Mr. Dember, would you happen to have a hard copy? When I 21 turn to read I lose my mic. 22 Q. I don't think I have an extra copy with me. 23 A. Let me just rearrange myself. 24 Q. Sure. Take your time. 25 A. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8591 4BA5SAT1 Stewart - cross 1 Q. Now, what I am going to do is direct our attention to page 2 23 of the transcript, just to orient you to the conversation 3 that you had on that day. 4 It indicates, on the bottom of page 23, do you see it, 5 Mr. Yousry is talking in Arabic to Abdel Rahman at that point. 6 Do you see that? 7 A. I do. 8 Q. It reads: These are the ones Lynne brought today; she 9 didn't want to bring Nasser's nor his wife's letters because 10 she didn't know how the inspection outside would go. 11 And then, on the top of the next page it reads: Okay, 12 good. 13 And then Mr. Yousry, then speaking in Arabic says: 14 She brought some, and tomorrow she will bring the others. 15 And Abdel Rahman says: Good. 16 And then Mr. Yousry -- all of this is in Arabic, of 17 course, states: I read these things outside, but I prefer to 18 read to you, sir, your wife's letter in particular. 19 And Abdel Rahman said: Yeah, read it to me. 20 Now, do you recall before going in for the visit or 21 before Mr. Yousry was speaking to Abdel Rahman, about letters 22 that you and Mr. Yousry had some kind of a conversation about 23 which letters to bring into the facility that day? 24 A. Yes. 25 Q. And in fact did you tell Mr. Yousry before entering the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8592 4BA5SAT1 Stewart - cross 1 facility that you didn't want to bring all the letters in? 2 A. Yes, because -- 3 Q. I'm sorry. Continue. 4 A. Because we or I recognized that this was the first visit by 5 any lawyer since the new affirmation, the new SAMs actually had 6 gone into effect and -- actually it was the new affirmation. 7 And, as I say, we traveled 1,500 miles to do these visits and 8 we didn't want anything to interrupt them. 9 So, we thought that perhaps that we would go through 10 and select out -- we had no idea whether there would be a 11 heightened, what I call it security check before we went into 12 the prison, so rather than show up with a sheaf of letters we 13 brought in the ones that we were going to work with that day 14 and the next day brought the next ones. 15 Q. Ms. Stewart, were all the letters you brought in in the 16 Arabic language? 17 A. Yes. 18 Q. None of them were in English? 19 A. That's right. But, you know, guards can speak Arabic. 20 Q. Well, I think you told us before that you were not aware of 21 any guards at the Rochester facility speaking Arabic, is that 22 right? 23 A. Yes. We had a sense that if there was some concerted 24 effort to keep us from going in this could be used as some kind 25 of excuse. I have already explained my position on it but we SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8593 4BA5SAT1 Stewart - cross 1 didn't want anything to interfere with that visit. 2 Q. My question was, though, was it not your understanding that 3 there were no guards at the facility that spoke Arabic, wasn't 4 that your understanding? 5 A. Well, yeah. But I mean it could be changed between the 6 year that I had been there before. 7 Q. Well, wasn't one of your complaints and one of the 8 complaints about the conditions of confinement that Mr. Abdel 9 Rahman was under was the fact that he had nobody to speak to in 10 Arabic? 11 A. Yes. But things change. 12 Q. Well, did they change? To your knowledge? 13 A. Not that they told us about. 14 Q. So you had no understanding that they had changed and that 15 there were Bureau of Prisons officials or personnel who spoke 16 Arabic at the time? 17 A. No. 18 Q. Now, Ms. Stewart, let me go down a bit and to page 62 of 19 the same day's transcript; do you remember bringing to the 20 facility a letter from Mr. Sattar on that visit? 21 A. Yes, I believe so. 22 Q. And by the way, did you go through the routine that you 23 described for us previously that Mr. Yousry, on the trip to 24 Minnesota or at some point before you entered the facility, 25 would translate for you all the letters or correspondence that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8594 4BA5SAT1 Stewart - cross 1 were being sent or were given to you, so that you could 2 determine whether or not you should read any or all? 3 A. That's right. 4 Q. Was that done before this particular trip? 5 A. Yes. 6 Q. Were you aware, or do you recall that in Mr. Sattar's 7 letter, there being part of his letter included -- included 8 some, essentially, message from Abdel Rahman's son Mohammed? 9 A. Yes. I believe that was there. 10 Q. And do you recall, I'm referring now to page 62 of the same 11 transcript, and do you recall Mr. Yousry, before the visit, 12 translating Mr. Sattar's letter and part of that letter reading 13 as follows? And I will start on line 20 there. Do you see 14 that where Mr. Yousry is reading to Abdel Rahman? 15 A. Yes. 16 Q. Obviously, in Arabic: "Honorable Sheikh, please be 17 informed that we are 'the weak' to the greatest extent and that 18 we get the power and might from God, His Majesty, then from 19 your holding on to truth. 20 "Honorable Sheikh, please be informed that anything 21 you say, especially if we sense some weakness in it, affects us 22 all and weakens us, particularly among our brothers with whom 23 we say. Maybe you know how -- maybe you know how proud and 24 dignified we felt when you announced your withdrawal of support 25 to the initiative. You are the weak and sick prisoner, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8595 4BA5SAT1 Stewart - cross 1 neither withhold nor suppress a word of truth even when you are 2 behind bars. For this reason, we were greatly astonished when 3 Muntasir wrote in the newspapers that you urge to go forth with 4 the initiative. These words had a severe influence on us. 5 Please explain this to us, your eminence. If any of the 6 brothers, like Muntasir, needs to be told some encouraging 7 words to strengthen him -- then unintelligible -- not have it 8 published in newspapers. Words like these weaken, especially 9 because you, Your Eminence, do not belong to a certain group. 10 All the people look up to you and at what you issue and convey 11 it to each other. He closed the brackets [reading] Mohammed's 12 words end here." 13 Do you remember Mr. Yousry translating that portion of 14 Mr. Sattar's letter to you? 15 A. That is actually the words of the Sheikh's son. 16 Q. Correct; do you remember that being a part of Mr. Sattar's 17 correspondence or letter to, that was given to you? 18 A. Yes. 19 Q. And do you remember Mr. Yousry translating those words for 20 you? 21 A. Yes. 22 Q. Now, during the course of this visit in July, did you 23 discuss the lawsuit that you were planning on bringing, 24 challenging Abdel Rahman's conditions of confinement? 25 A. Yes; at great length. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8596 4BA5SAT1 Stewart - cross 1 Q. At great length. 2 Did you tell Abdel Rahman, during the visit, that you 3 were going to file that lawsuit? 4 A. Yes. 5 Q. Now, do you recall the second day of the visit, that being 6 July 14th, 2001, is that the date? 7 A. I think so, yes. 8 Q. Do you remember having a conversation either that day or 9 the day before, another conversation with Warden Reese? 10 A. Yeah. I think it was after the first visit in the -- we 11 would end the visit at 3:00 which was the time, and then one of 12 the guards would say, The warden would like to see you; and 13 escort me to her office, which was in a different place. 14 Q. Was that the second time you had met Warden Reese? 15 A. I think it was. I think so, yes. When -- I met her when 16 she first got there and I remember this time because there was 17 an issue about tapes involved so, yes, there were two meetings. 18 Q. When you talk about tapes, you are talking about tapes that 19 were sent to Abdel Rahman for him to listen to? 20 A. That's correct, cassette tapes. 21 Q. With Arabic language on it of some kind? 22 A. Yes, religious -- religious stuff. 23 Q. And is it your recollection that Warden Reese is the one 24 who essentially made the request to speak with you? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8597 4BA5SAT1 Stewart - cross 1 Q. You didn't request to speak to her? 2 A. No. 3 Q. And you had a conversation with her that day, is that 4 right? 5 A. I did. 6 Q. Do you recall telling her that you were again planning to 7 file a lawsuit challenging the conditions of confinement on 8 that day? 9 A. I don't know whether I would have said it again. I might 10 have been embarrassed to say it again since I hadn't done it in 11 a whole year, but it's conceivable that I explained to her that 12 that was one of the main reasons we needed our consultation. 13 MR. DEMBER: Your Honor, may I display a few pages 14 from Government Exhibit 1720X, in evidence? 15 THE COURT: Yes. 16 Q. Ms. Stewart, that is the front page cover of that 17 transcript, it indicates it was a recording made on July 14th, 18 2001. 19 A. Yes. 20 Q. Part of the visit, right? 21 And let me show you page 11 of that transcript first. 22 Now you see, let me start on line 3 here, you are talking in 23 English, obviously, and then you stated: She talked about 24 he -- she knows he doesn't take insulin certain times because 25 of the uh, of fasting, as req -- religiously required, but SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8598 4BA5SAT1 Stewart - cross 1 that -- 2 And Mr. Yousry makes an uh-huh sound. 3 And then you go on and state: He's got to take his -- 4 and that she an -- she speaks to his wife, Aisha (phonetic) 5 about it, if he doesn't take his -- 6 Is the "she" you are referring to Warden Reese? 7 A. Yes. 8 Q. And then a few lines down, line 15, do you see line 15 9 there? You state: And, uh I told her that we are probably 10 going to bring a lawsuit, based on the SAMs. 11 Do you remember saying that to Warden Reese now? 12 A. Yes. 13 Q. And do you remember also saying, in your conversation as 14 you are talking during the visit, this is, you are talking to 15 Mr. Yousry -- at that point is it your intention that he be 16 translating your words to Abdel Rahman? 17 A. Well, I note that it says here that he is writing so 18 obviously he is taking the whole thing, he is writing it in his 19 notebook in order to translate the whole thing to the Sheikh as 20 soon as I finish. 21 Q. Your intention was to inform Sheikh Abdel Rahman about what 22 you were saying, is that right? 23 A. Oh yeah. 24 Q. And then below that you said -- after you said I told 25 her -- I told her that we are probably going to bring a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8599 4BA5SAT1 Stewart - cross 1 lawsuit, based on the SAMs, you state: That, uh, the Sheikh is 2 a world figure, that people have a right to hear his points of 3 view, and that, uh, it's not personal to her, but that we think 4 that it's unconstitutional to hold a person like this. 5 Is that what you told Warden Reese? 6 A. Yes. 7 Q. And do you remember telling her that? 8 A. Yes. 9 Q. Now, do you remember during the course of the second day -- 10 this was the second day of the visit, that in fact you did 11 bring into the facility the letters, Nasser Ahmed's letter to 12 read to Abdel Rahman, is that correct? 13 A. Yes. 14 Q. And you also brought his wife's letter in as well, is that 15 correct? 16 A. That's correct. 17 Q. Do you remember during the course of the visit Abdel Rahman 18 dictating a letter to a number of people, sort of a single 19 letter to a number of people including Mr. Sattar, Mr. Nabil 20 Elmasry, and Nasser Ahmed, and a fourth individual, Osama 21 Al-Tuji? 22 A. Yes, that's the chicken supplier. 23 Q. The chicken salesman? 24 A. Yes. 25 Q. Was it Halal chicken salesman? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8600 4BA5SAT1 Stewart - cross 1 A. That's correct. 2 Q. Do you remember Abdel Rahman dictating letter to four of 3 those people? 4 A. Yes. 5 Q. Now at some point during the visit did you actually -- you 6 asked your client, did you not, whether you should sign the 7 affirmation, right? 8 A. Yes. 9 Q. And that was part of the visit -- the purpose of the visit 10 was to discuss that very issue with him and get his views, is 11 that right? 12 A. That's correct. 13 Q. And he said you should sign the affirmations, right? 14 A. That's right. 15 Q. Because he wanted you to continue to be able to visit him 16 and talk to him, correct? 17 A. Correct. 18 Q. Ms. Stewart, you mentioned in your testimony the last 19 several days, I think, about these letters being part of the, 20 what's called the attorney-client privilege in your view, is 21 that right? The letters that you were bringing in to the 22 facility and that you were bringing out of the facility were 23 what, what you considered to be subject to the, what's called 24 the attorney-client privilege and that's why you didn't put 25 them through the procedures that the SAMs required, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8601 4BA5SAT1 Stewart - cross 1 right? 2 A. Yes. I saw them as being information that my client was 3 entitled to have under the rules of ethics and that certainly 4 when I discussed them with him and talked to him about them or 5 he talked to me about them and told me what he wanted done, 6 then they became privileged as a matter of law. And this is, 7 you know, the rule of ethics is larger than the evidentiary 8 rule, that is, the definition of attorney-client. 9 Q. Well, what rule of ethics are you talking about? 10 A. The duty to preserve client confidences. 11 Q. And the duty to preserve client confidences is based on the 12 attorney-client privilege, is that right? 13 A. No, it's broader than that. 14 In other words, as I understand it -- not to talk like 15 a lawyer, but, the privilege, if there is a third-party 16 involved, it no longer is a privileged matter so that a letter, 17 perhaps, because it's from a third-party, might not be 18 privileged in and of itself. 19 But when it becomes part of the lawyer's investigation 20 and discussion with the client, that part becomes privileged. 21 And the duty to preserve the confidence or the secret, if you 22 will of the client, is part of the rule of ethics. 23 Q. Right. And the duty to preserve your client's confidential 24 communications involves his confidences -- in this case Abdel 25 Rahman -- he shares with you, right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8602 4BA5SAT1 Stewart - cross 1 A. Yes, basically. But it's broader than that even, so. 2 It is not just the evidentiary, what could be received 3 as evidence or protected by the privilege, it's broader than 4 that. 5 Q. Well, Ms. Stewart, let me just show you -- 6 May I display, your Honor, part of Government Exhibit 7 11, which is in evidence? 8 THE COURT: Yes. 9 Q. Ms. Stewart, this is the March -- the first page is the 10 March 26, 2001 SAMs, is that right? 11 A. Yes. 12 Q. And this is the one, when you signed the affirmation on May 13 7th, 2001, these are the version of the SAMs that you promised 14 to abide by, is that correct? 15 A. I believe so. 16 MR. DEMBER: May I approach the witness, your Honor? 17 THE COURT: Yes. 18 Q. Ms. Stewart, I'm going to hand you Government Exhibit 19 number 12, in evidence. 20 A. Thank you. 21 Q. That in fact is the, what I just handed you, Exhibit 12, is 22 the attorney affirmation that you signed, is that correct? 23 A. That's right. 24 Q. And that's signed in May of 2001? 25 A. That is right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8603 4BA5SAT1 Stewart - cross 1 Q. And in that affirmation you promise to abide by the March 2 26, 2001 SAM, is that correct? 3 A. Yes. 4 Q. And just on the screen here, I am going to turn the page on 5 this version of the SAMs, to page 6 of the SAMs at the bottom, 6 and that's the section that talks about mail, and it 7 distinguishes legal mail, does it not, and it has what is 8 described in the SAMs as nonlegal mail and how did the SAMs 9 define that. Is that right? 10 A. Yes. 11 Q. Did you ever, at any point, challenge the version of the 12 SAMs that dealt with the mail provision? 13 A. No. 14 Q. Did you ever call up Pat Fitzgerald and discuss with him 15 the mail provision of the SAMs? 16 A. No. 17 Q. Did you ever talk to anybody at the Department of Justice 18 or the Bureau of Prisons about the mail provision of the SAMs? 19 A. No. 20 Q. Now, would you agree with me, Ms. Stewart, that with the 21 following legal definition or definition, essentially, of what 22 the attorney-client privilege is? And I will read it to you. 23 I will read a definition for you, and just tell me if you agree 24 with that, that that's the law or that's your understanding of 25 what the law is, okay? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8604 4BA5SAT1 Stewart - cross 1 A. Sure. 2 Q. That communications are privileged under the 3 attorney-client privilege where legal advice of any kind is 4 sought from a professional legal advisor in his or her capacity 5 as such, are at his or her instant permanent -- excuse me. Let 6 me start again. 7 Your legal advice of any kind is sought from a 8 professional legal advisor in his or her capacity as such but 9 communications relating to that purpose made in confidence by 10 the client are at his or her instance, permanently protected 11 from disclosure by the client or by the legal advisor. 12 Is that your understanding of what the attorney-client 13 privilege is? 14 A. I don't think that's the privilege. 15 Q. Well -- 16 A. Isn't that the -- that seems to go further than the 17 privilege and -- I thought it was the client's right to be able 18 to disclose them if he wanted to. I just thought that the 19 persons to whom they were made, the legal advisor or the legal 20 team, had a duty to protect them. 21 Q. Right. Well, the client can certainly waive the privilege, 22 right? 23 A. Yes. 24 Q. That's the client's right, not the attorney's right? 25 A. Right. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8605 4BA5SAT1 Stewart - cross 1 Q. Is that right? 2 A. Yes. 3 Q. So do you agree with that additional part of it? Do you 4 agree that that's the definition of the attorney-client 5 privilege? 6 A. I think it's not quite as broad as I would think it was but 7 as a working definition, yes. 8 MR. DEMBER: May I approach the witness, your Honor? 9 THE COURT: Yes. 10 Q. Ms. Stewart, I'm going to hand you a document that's marked 11 for identification as Government Exhibit 612, okay? Now, I ask 12 you to turn to page 4 of that document and just look at it. In 13 fact, look at the bottom right-hand corner of page 4 of that 14 document. Read it to yourself, if you would. 15 Ms. Stewart, I saw you turn the page, did you get a 16 chance to look at the bottom of page 4? 17 A. I was trying to get the facts upon which that was based 18 because of course, as we know -- 19 (Continued on next page) 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8606 4BAESAT2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Well, I'm sorry. I think I only asked you, did you read 3 the bottom portion of the right-hand corner portion of page 4 four of that document? 5 A. Yes, but the thousands of opinions that I've read in my 6 career, I know that if you take one snippet out, it doesn't 7 really make much sense without knowing about what that snippet 8 is kind of based on. 9 Q. All I asked you to read is -- I just asked you to read that 10 section. Did you read that section? 11 A. Oh, yes. 12 Q. And is that -- before I ask you anything further, when we 13 lawyers -- withdrawn. 14 The attorney-client privilege is a legal principle, is 15 that correct? 16 A. I guess you could describe it as such. It's a privilege. 17 Q. And it's defined a certain way, correct? 18 A. Yes. 19 Q. And we as lawyers, when we really want to get to understand 20 perhaps some more in-depth what is meant by the privilege, is 21 it not usually what we do is go to the court decisions and 22 review those court decisions to get an understanding or a clear 23 understanding of what the privilege or what legal principle 24 that actually stands for? 25 A. Yes, or consult in this case the canons of ethics. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8607 4BAESAT2 Stewart - cross 1 Q. Well, is the attorney-client privilege defined in the 2 canons of ethics? 3 A. It is defined insofar as it is stated that it is -- that 4 the obligation to the client is broader than the evidentiary 5 privilege. 6 Q. And when we -- in this district where this court exists, we 7 frequently will refer to cases decided by something called the 8 Second Circuit Court of Appeals, is that right? 9 A. Yes. 10 Q. And the Second Circuit Court of Appeals is actually the 11 Court that decided Abdel Rahman's appeal, is that right? 12 A. Yes. 13 Q. And that's the Court that -- whose legal rulings lawyers 14 who practice within this district are required to follow, is 15 that correct? 16 A. I'm not quite sure what you mean by that. 17 Q. Well, is it not the Second Circuit Court of Appeals, when 18 they decide cases, don't those cases become precedent, and are 19 not those decisions made in those cases and legal principles 20 announced in those cases binding on lawyers -- 21 MR. TIGAR: Excuse me, your Honor. I object to this, 22 and I'd like to be heard. 23 THE COURT: All right. Ladies and gentlemen, this is 24 the time for us to take a break. Why don't we take a break. 25 Please, please remember my continuing instructions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8608 4BAESAT2 Stewart - cross 1 Don't talk about the case at all. Please always remember to 2 keep an open mind until you've heard all of the evidence, I've 3 instructed you on the law, you've gone to the jury room to 4 begin your deliberations. All right. 5 (Continued on next page) 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 8609 4BAESAT2 Stewart - cross 1 (In open court; jury not present) 2 THE COURT: All right. 3 MR. TIGAR: Your Honor, I have no difficulty with the 4 idea that counsel will have a dialogue with Ms. Stewart about 5 what she thought the law was. We started and he's on his way, 6 provided she's given a fair opportunity to respond to 7 questions. 8 But what he just -- counsel just said was, well, is it 9 not the Second Circuit Court of Appeals, when they decide 10 cases, don't those cases become precedent, and are not those 11 decisions made in those cases and legal principles announced in 12 those cases binding on lawyers? 13 That's what he said. And they're not. The Court has 14 instructed the jury that the Abdel Rahman case -- which counsel 15 just put in a question just before this one, didn't they decide 16 the Abdel Rahman case, isn't that binding on lawyers? -- your 17 Honor has told the jury that it's not binding on anybody that's 18 not a party to it. And so while we have no objection to the 19 discussion of principles, that statement is misleading. And it 20 is contrary to what the Court has told the jury and is 21 susceptible of being misinterpreted. 22 If Mr. -- as I say, if he wants to ask Ms. Stewart how 23 she thinks about the privilege and the ethical considerations, 24 they've embarked on that. But I object to that question, and I 25 ask the jury -- it be stricken, that the jury be instructed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8610 4BAESAT2 Stewart - cross 1 that, in fact, that is not the correct statement. 2 THE COURT: I'm sorry? 3 MR. TIGAR: I ask that the question be stricken and 4 that the jury be instructed that counsel's statement is simply 5 not correct; that those decisions made are not binding on 6 lawyers. The interpretation of precedent is something about 7 which reasonable people can disagree as they read cases. But 8 that statement carries a particular capacity to mislead. 9 THE COURT: I'm prepared to sustain the objection to 10 the last question. Objection is sustained, question is 11 stricken. Jury is instructed to disregard. 12 Examination can continue. 13 MR. DEMBER: Your Honor, I simply will propose -- may 14 I propose a question to be asked? Might as well, if there's 15 objections to it, discuss it now before I leave this line of 16 questioning. 17 And the question I propose to ask is Ms. Stewart's 18 understanding of whether it's the province of the judiciary to 19 say what the law is. That's, we believe, a perfectly 20 appropriate question. I don't see the objection to it, but 21 that's a question that we propose to ask. 22 MR. TIGAR: Well, Ms. Stewart can certainly state her 23 understanding. It is not the sole province of the judiciary to 24 state what the law is. And the New York ethical considerations 25 are quite clear that it is emphatically the province of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8611 4BAESAT2 Stewart - cross 1 lawyers to advise clients about the applicability of the law. 2 But we'll see what the answers are. 3 THE COURT: Yeah, there is no objection to that 4 question? 5 MR. TIGAR: Provided Ms. Stewart gets an opportunity 6 to answer it. 7 THE COURT: Yes. I assume that when the question is 8 asked, that Mr. Dember will pause for the answer. 9 MR. DEMBER: Your Honor, that is my usual practice. 10 And occasionally I interrupt, but it's not intentional. And 11 I'll make a point of waiting for the answer when I pose the 12 question. 13 THE COURT: All right. Let me talk to the lawyers at 14 the side bar. 15 (Page 8612 sealed by order of the Court) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8613 4BAESAT2 Stewart - cross 1 (In open court; jury present) 2 THE COURT: All right. When we broke, there was a 3 question. There has been an objection to the question. The 4 objection is sustained, so the last question is stricken and 5 the jury is instructed to disregard it. 6 And Ms. Stewart is on the stand. Mr. Fletcher? 7 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 8 are still under oath. 9 THE WITNESS: Yes. 10 THE COURT: All right. Mr. Dember, you may proceed. 11 MR. DEMBER: Thank you, your Honor. 12 BY MR. DEMBER: 13 Q. Ms. Stewart, would you agree with the proposition that it's 14 the province of the judiciary or the courts in our country to 15 say what the law is? 16 A. I think that the judiciary -- to my understanding, there 17 are cases presented by litigants, by people who need a 18 resolution of a legal issue, and the courts ultimately decide 19 those issues. However, there is reserve to the lawyers under 20 the way we operate, the system operates, including the rules of 21 ethics, a certain decision-making with regard to whether to 22 bring a case, whether it's frivolous or not, whether a good 23 faith belief makes one able to bring a case, even though it may 24 not be the law at that moment. Certainly we can think of in 25 the history of this country the laws regarding Jim Crowe and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8614 4BAESAT2 Stewart - cross 1 such as that. Those were not the law at the time but by 2 bringing cases, a lot of that got overturned. 3 So, yes, the judiciary pronounces the law, but 4 actually the law is made by bringing cases and presenting 5 facts. And we have a certain obligation as lawyers -- I know 6 you know this -- that -- to broaden the law, to make it grow, 7 to make it stay current with what's current in our lives and in 8 our everyday -- our everyday life, I guess I would say. 9 Q. Would you agree with me that as lawyers we don't pronounce 10 what the law is? That's what the courts do? 11 A. No, but we make decisions. You know, it's interesting that 12 the -- more than interestingly, ethical rules say that there 13 are not hard-line rules here to govern everything a lawyer must 14 do, and that you have to interpret the ethical rules in an 15 autonomous way and decide based on your obligations to the 16 client and also make -- if there's an issue as to whether it 17 goes in favor of the client or the other way, that all things 18 should be resolved in favor of the client. 19 Q. Ms. Stewart, I'm simply asking you, is it not the job of 20 the courts to determine what the law is? 21 A. Yes, in the case or controversy before it, yes, absolutely. 22 Q. And, in fact, the definition I read before to you about 23 what constitutes the attorney-client privilege was a definition 24 announced by the Court of Appeals that covers this district, is 25 that right? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8615 4BAESAT2 Stewart - cross 1 A. It was, but I think it dealt with corporate rather than 2 personal. And I think it also is bound pretty much by the 3 facts having to do with the union and overseeing of a union, 4 rather than saying, well, this is exactly what we're talking 5 about here. The privilege is not rigid, it's flexible, as I 6 see it. 7 Q. Well, isn't it actually -- hasn't the Second Circuit Court 8 of Appeals said that the privilege is to be decided or be 9 applied very narrowly? Has the Second Circuit said that? 10 A. They may be saying that in this one paragraph you asked me 11 to read, but I think that reasonable people can differ on that, 12 and reasonable lawyers can differ on that. And that I 13 certainly -- there's a difference between the corporate 14 privilege and the personal privilege. And I think that also, 15 when I'm talking about the ethics and I say it's wider than 16 just the evidentiary privilege, which is what this case is 17 turning on, I think that's also part of the broader picture of 18 this. 19 Q. But the disciplinary rules are created by whom? 20 A. They are created by the appellate division of the state in 21 which we practice law. 22 Q. And is not the privilege, the attorney-client privilege, 23 based on -- pertains to only communications that relate to the 24 obtaining and the giving of legal advice? Isn't that true? 25 A. Yes, but then I think you have to look at what pertains to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8616 4BAESAT2 Stewart - cross 1 the giving of legal advice. And that is a very broad 2 definition, that the client has the right to know about 3 anything that affects his case, anything. And that is, when we 4 bring letters to the prison and we discuss them, that's part of 5 my outside investigation as his lawyer: What are the people 6 who supported him thinking at this point? 7 Q. So their thoughts are -- 8 A. I'm sorry. 9 Q. I'm sorry, please. I'm sorry. 10 A. Then we discussed them in the prison. That conversation, 11 I'm sure you wouldn't argue, is privileged, because we're 12 talking about matters between attorney and client. Of course 13 we were listened in to, but I'm just saying in the usual course 14 of events, that is a privileged conversation. 15 Q. Well, the mere fact that somebody writes a letter on its 16 own, standing alone, to your client discussing what's happening 17 in the community, standing alone, without any other further 18 discussion, would you agree with me that is not a privileged 19 communication? 20 A. Between my client and that person, you mean? 21 Q. No. A person sending a letter to your client, just 22 discussing their daily life, would that be privileged? If -- 23 not going beyond that, simply a letter written by a person to 24 your client talking about personal matters, would that fall 25 within the attorney-client privilege as you understand it, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8617 4BAESAT2 Stewart - cross 1 without any further discussions as you've talked about here, 2 between you and your client about that letter? 3 A. In other words, I'm completely out of the picture in other 4 words? 5 Q. Correct. 6 A. No, it would not, of course. 7 Q. Now, Ms. Stewart, after the July 2001 visit you continued 8 to sign attorney affirmations, is that correct? 9 A. I think there may have been a couple more. 10 MR. DEMBER: May I approach the witness, your Honor. 11 THE COURT: Yes. 12 Q. Ms. Stewart, I'm going to hand you up two exhibits which 13 have been introduced into evidence as Government Exhibits 14 14 and 17. 15 MR. DEMBER: May I display Exhibit 14, your Honor. 16 THE COURT: Yes. 17 Q. Ms. Stewart, do you have 14 in front of you? 18 A. I do. 19 Q. That's an attorney affirmation you signed, is that right? 20 A. It is. 21 Q. And you signed that after your July 2001 visit, is that 22 right? 23 A. That was signed in October. 24 Q. Let me just turn the page. That's your signature and the 25 date is October 8, 2001, when you signed it? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8618 4BAESAT2 Stewart - cross 1 A. That's right. 2 Q. And is this affirmation identical to the one that you 3 signed before your visit in July of 2001? 4 A. I believe so. 5 Q. Why don't you turn to Exhibit 17. 6 MR. DEMBER: May I display 17, your Honor. 7 THE COURT: Yes. 8 Q. Ms. Stewart, this is another attorney affirmation that you 9 signed, is that right? 10 A. That's right. 11 Q. After the July 2001 visit? 12 A. That's correct. 13 Q. Let me turn to the second page. That's an affirmation you 14 signed on January 9, 2002? 15 A. That's the date, yes. 16 Q. Now, Ms. Stewart, after your visit on July -- in July of 17 2001, you never saw your client again, is that right? 18 A. That's correct. 19 Q. You never made another visit before you were charged in 20 this case? 21 A. No. 22 Q. In fact, you never even spoke to him on the phone after 23 that date, did you? 24 A. No. There were some communications difficulties. The 25 phones at my office were out after 9/11 for almost two months, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8619 4BAESAT2 Stewart - cross 1 so all the calls were taken at Mr. Clark's office. 2 Q. And you did not participate in any of those calls, did you? 3 A. No, I did not. 4 Q. So from July of 2001 when you visited him until you were 5 charged in this case, you had no communications with your 6 client, Abdel Rahman, is that correct? 7 A. Not that I remember, no. 8 Q. Now, Ms. Stewart, let me just -- we talked a lot about the 9 lawsuit that you were planning to bring, is that right? 10 A. Yes. 11 Q. And you talked to a number of people about it. You 12 mentioned it to Warden Reese, is that correct? 13 A. Correct. 14 Q. You mentioned it to your client a number of times, there 15 were discussions about that during the various visits, is that 16 right? 17 A. Correct. 18 Q. Did you discuss the lawsuit that you planned to bring in 19 telephone conversations with him whenever you spoke to him? 20 A. We well may have. 21 Q. Now, you were aware of the fact, of course, that back in 22 1997 a lawsuit challenging Abdel Rahman's conditions of 23 confinement were filed, was filed, is that right? 24 A. Yes, by Ramsey Clark in Springfield. 25 Q. And that was filed in the federal courts in Springfield, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8620 4BAESAT2 Stewart - cross 1 Missouri? 2 A. Yes. I'm not sure the court was located there, but at any 3 rate, it was with regard to the prison at Springfield, 4 Missouri. 5 Q. Were you not also listed as an attorney representing Abdel 6 Rahman on that case? 7 A. Yes, but I did not appear and I did not take part in any of 8 the paperwork that enabled him to bring a lawsuit. I may have 9 done some work on exhausting the administrative remedies, but I 10 did not prepare, serve, appear on the actual lawsuit itself. 11 Q. And did you understand that the gist of the lawsuit was to 12 challenge his conditions that included the Special 13 Administrative Measures? 14 A. Yes. 15 Q. And did you understand or did you know that the -- that a 16 federal district court judge in Missouri actually issued a 17 decision in that case? Did you know that? 18 A. My understanding was that it had been stopped, the case had 19 been not adjudicated, that he dismissed it without prejudice. 20 Q. Well, did you ever see a decision in that case? 21 A. No. 22 Q. Did Mr. Clark ever talk to you about a decision that was 23 made in that case? 24 A. No. I thought that what had happened was -- my 25 understanding was that there was a negotiation as a result of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8621 4BAESAT2 Stewart - cross 1 the bringing of the lawsuit and that the government moved him 2 to what was considered a better jail in Rochester, and that the 3 lawsuit could no longer be sustained because he was no longer 4 within the jurisdiction of the Springfield, Missouri, court. 5 And so, therefore, it was dismissed without prejudice. 6 Q. Well, Ms. Stewart, are you telling us that you never saw a 7 decision where the federal district court judge actually dealt 8 with the merits of that case? 9 A. No, I never did. 10 Q. And you're telling us Mr. Clark never told you that a 11 decision had been issued by a federal district court in 12 Missouri dealing with the merits of that case? 13 A. I never knew that until you said it here. 14 Q. Now, Ms. Stewart, after -- let me ask you this: At any 15 point in time did you ever obtain those BP9 forms that you had 16 been required, or your client would have been required through 17 you to fill out in order to exhaust those administrative 18 remedies, the predicate for filing a civil lawsuit? 19 A. Yes, I've seen them. They're supplied by the prison 20 itself. They're part of their stationery, has to be done on 21 their forms. 22 Q. Did you ever fill out those forms in order to start the 23 lawsuit process for your client? Did you ever fill out those 24 forms in 1999? 25 A. No. As I said, I worked with Mr. Clark. We filled them SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8622 4BAESAT2 Stewart - cross 1 out together based on what the client had told us and then they 2 were read to him, I believe, over the phone. And he approved 3 them. And then they were sent in with the notation that 4 because of his blindness, he could not do this himself. 5 Q. I'm sorry. I didn't make myself clear. I apologize. 6 Let's go back for a moment. The lawsuit that you said 7 was filed by Mr. Clark, that you really didn't have a great 8 deal of involvement in, was that filed in 1997? 9 A. Yes. 10 Q. And was it your understanding that sometime in 1999 that 11 case was either withdrawn or dismissed or ended in some 12 fashion? 13 A. It was before he went to Springfield, yes. 14 Q. Well, did you mean -- 15 A. I'm sorry. I mean before he went to Rochester, yes. 16 Q. And do you recall him going to Rochester in 1998? 17 A. Yes. 18 Q. And my -- what I meant by my previous question was after he 19 was at Rochester in '98 or 1999 or 2000 or 2001, did you ever 20 fill out those forms, those BP9 forms you told us about? 21 A. No, that never was done. 22 MR. DEMBER: May I approach the witness, your Honor. 23 THE COURT: Yes. 24 Q. Ms. Stewart, I'm going to hand up to you two documents 25 we've marked for identification as Government Exhibit 2616 and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8623 4BAESAT2 Stewart - cross 1 2617. Why don't we start with 2616. Do you recognize the 2 document? 3 A. Yes. 4 Q. Is that a letter that you wrote? 5 A. Yes. 6 Q. And you wrote that letter in July 2001 to Warden Reese? 7 A. Yes. 8 Q. And that in the letter you discuss some matters about some 9 tapes, Koranic tapes, is that correct? 10 A. That's correct. 11 Q. And you also asked the warden at that time to send you the 12 forms that you needed to fill out to exhaust the administrative 13 remedies, is that right? 14 A. That's right. 15 Q. Those would have been the BP9 forms? 16 A. That's right. 17 MR. DEMBER: Your Honor, the government offers 18 Government Exhibit 2616 into evidence. 19 MR. TIGAR: No objection, your Honor. 20 THE COURT: All right. Government Exhibit 2616 21 received in evidence. 22 (Government's Exhibit 2616 received in evidence) 23 MR. DEMBER: May I display it, your Honor. 24 THE COURT: Yes. 25 - - - - - SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8624 4BAESAT2 Stewart - cross 1 BY MR. DEMBER: 2 Q. Ms. Stewart, the letter that we just described is dated 3 July 19, 2001? 4 A. That's right. 5 Q. That's a few days after your visit with Abdel Rahman in 6 July? 7 A. That's correct. 8 Q. And it's in the second paragraph here that you request that 9 the warden send you the forms? 10 A. Yes. 11 Q. Ms. Stewart, why don't we turn to Exhibit 2617. Do you 12 have that before you? 13 A. I do. 14 Q. And do you recognize the exhibit? Why don't you take a 15 look at it. It's a few pages. 16 A. Yes. 17 Q. Do you recognize the document? 18 A. I do. 19 Q. Is that a letter that was sent to you in response to the 20 letter we just talked about? 21 A. It is. 22 Q. And does that piece of correspondence also have attached to 23 it copies of the BP9 forms? 24 A. It does. 25 MR. DEMBER: Your Honor, the government offers SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8625 4BAESAT2 Stewart - cross 1 Government Exhibit 2617 into evidence. 2 MR. TIGAR: No objection, your Honor. 3 THE COURT: Government Exhibit 2617 received in 4 evidence. 5 (Government's Exhibit 2617 received in evidence) 6 MR. DEMBER: May I display that for the jury, your 7 Honor. 8 THE COURT: Yes. 9 BY MR. DEMBER: 10 Q. Ms. Stewart, this is a letter in response to your letter 11 which is Government Exhibit 2616, is that right? 12 A. Yes, it is. 13 Q. And basically the writer of the letter is essentially 14 sending you the forms and explaining where the forms have to be 15 filed, is that correct? 16 A. Exactly. 17 Q. Turn to the second page. And this letter was sent by a 18 Mary Benning, who is an attorney advisor at the facility at 19 Rochester? 20 A. I don't think I ever met her but I -- that's her title and 21 that's why she was sending the forms, yeah. 22 Q. She signed the letter, correct? 23 A. Yes. 24 Q. And for the jury's benefit, that's -- it's not very easy to 25 see, but there are forms attached to the letter, is that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8626 4BAESAT2 Stewart - cross 1 correct? 2 A. There are. 3 Q. These are the BP9 forms? 4 A. They are. 5 Q. And there's a copy of one of them right there. 6 Ms. Stewart, you never filled these forms out, did you? 7 A. No. I knew that they were sent to me in August. I think I 8 had said to the Sheikh we were going to move on this at the end 9 of August after I got back, or during August I would 10 investigate it and we would hopefully be able to move beginning 11 in September. 12 Q. But as I said, you never filled them out, you never filed 13 them with the prisons, is that correct? 14 A. No, we never did that. 15 Q. And these documents were seized from your office during the 16 search in April of 2002, is that right? 17 A. That's right. 18 Q. Ms. Stewart, let me just ask you some very general 19 questions. I think I may have -- we may have touched on this 20 earlier in the examination. I'm getting towards the end. 21 And one of the things I think we talked a little bit 22 about was what happens when an attorney like yourself is 23 representing a client and your client gets charged with a 24 crime. And what's turned over in the process, in the legal 25 process when you go to court, is something we call discovery, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8627 4BAESAT2 Stewart - cross 1 is that right? 2 A. Yes. 3 Q. And that typically happens after a client is formally 4 charged in a case. 5 The government, whether it's a state prosecutor or 6 federal prosecutor, is obligated to provide to you and your 7 client materials that include, for example, essentially the 8 evidence in the case; documents, recordings, other types of 9 physical items that might be introduced against your client, 10 should he or she go to trial, correct? 11 A. It varies. The state is much more -- keeps its secrets 12 more than the federal government does. But, yes, a fair number 13 of documents pertaining to the case necessary to the conducting 14 of a case are turned over. 15 Q. And in a case where there are intercepted recordings -- in 16 other words, a client or another person related to the case is 17 intercepted on recordings -- those recordings would be turned 18 over to you for review, certainly before you go to trial, is 19 that right? 20 A. Yes. 21 Q. And in instances where those recordings would be in a 22 foreign language, you would be provided with copies of 23 translations of those recordings at some point in time as well, 24 is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8628 4BAESAT2 Stewart - cross 1 Q. And that enables you as the defense attorney with your 2 client to review such materials and prepare your case for 3 trial, is that right? 4 A. That's the ostensible purpose, yes, for trial or for plea, 5 depending on the case and the evidence. 6 Q. Now, at some point I think you mentioned a number of times 7 in your testimony that you represented Mr. Ahmed in an 8 immigration court, is that right? 9 A. Nasser Ahmed, yes, I did. 10 Q. And you mentioned there was some secret evidence in that 11 case, is that right? 12 A. When the case began, it was all secret. We knew nothing 13 about what was the evidence against him. 14 Q. Now, that case was -- it was called the immigration court, 15 is that right? 16 A. That's immigration court, yes. 17 Q. It wasn't a criminal case, is that right? 18 A. It was not a criminal case. 19 Q. In criminal cases, in the criminal cases you've represented 20 clients in, there is no -- there can't be used -- you have to 21 be provided with the evidence beforehand -- recordings, 22 documents, exhibits -- so that you can prepare your defense, is 23 that right? 24 A. Yes, unless -- sometimes the government does try and get or 25 gets a protective order for some of the evidence. And also, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8629 4BAESAT2 Stewart - cross 1 Mr. Ahmed's case, of course, he was held in jail. So it had 2 the -- some of the trappings of a criminal case, although it 3 was not a criminal case. 4 Q. And that was the case that you dealt with just simply with 5 a judge alone; you didn't deal with a jury? 6 A. Right. 7 Q. Correct? 8 A. Yes. 9 Q. It wasn't a criminal case with the various protections and 10 requirements of a criminal case, is that right? 11 A. That's correct. 12 Q. Now, I think I've asked you this but let me be sure, 13 because I'm almost done. I think you indicated you reviewed a 14 number of the -- much of the discovery provided in this case, 15 whether it be recordings, transcripts, documents, what have 16 you, is that right? 17 A. Well, there was a lot of it. I reviewed some of it, I hope 18 most of it, yes. 19 Q. And is it fair to say that most of the recordings were in 20 the Arabic language, is that right? 21 A. That's right. 22 Q. So you couldn't really listen to those, could you? 23 A. No. 24 Q. Were you aware of the fact that there were essentially 25 thousands of recordings provided in discovery? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8630 4BAESAT2 Stewart - cross 1 A. I think the number was 90,000 or something like that. 2 MR. DEMBER: Your Honor, may I -- 3 Q. Ms. Stewart, you asked -- I'm sorry. You testified I think 4 towards the end of your testimony on direct about the fact that 5 there was some money that you held for your client, Abdel 6 Rahman, in an attorney's escrow or trust account, is that 7 right? 8 A. That's right. 9 Q. And I think you said something like you held about $70,000 10 of that money, is that right? 11 A. Yes. 12 Q. And where did you get that money from? 13 A. The -- there was a -- an investment that the Sheikh had 14 made in a small business in New Jersey. And the -- he asked if 15 I would collect that debt for him, and we did so. 16 Q. And that was how you got 70,000? 17 A. Yes. 18 Q. And I think you testified that that -- either you provided 19 or Mr. Yousry got approximately $30,000 from that 70,000, is 20 that right? 21 A. I think that's the figure. I'm not positive at this 22 moment, but I think that's the figure. 23 Q. And you said that he distributed some of that, or disbursed 24 some of that to Mr. Sattar, is that right? 25 A. Some of it to Mr. Sattar, yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8631 4BAESAT2 Stewart - cross 1 Q. Why did Mr. Yousry get that amount of money? 2 A. Well, he was due to be compensated for the work he had 3 done. He was -- he really did a lot of work, and he was hardly 4 in a financial position to be able to donate at that time. He 5 had also -- once the appeal had been decided, there was no more 6 money from the court to pay him. And so this was the Sheikh's 7 wish, that the money go partially to him. 8 Q. And do you have a sense of when that was? 9 A. When? 10 Q. When the -- well, let me backtrack for a second. 11 Was he given the 30,000 roughly in a lump sum? 12 A. No. It was per'd out, as I remember. 13 Q. Your testimony was it was done to compensate him for his 14 services? 15 A. Partially. The other reason was some of it was used, as I 16 understood it, to be placed in the commissary which we heard so 17 much of on the tapes; that some of it was recycled into the 18 Sheikh's commissary, but the majority was for payment for him. 19 Q. Let me stop you. You mentioned a commissary. Was 20 Mr. Yousry given the responsibility of sending money to Abdel 21 Rahman to pay -- so Abdel Rahman could pay for his commissary? 22 A. No. It happened on occasion, is all I'm saying. And I 23 believe some of that money was used for that purpose when we 24 would get an emergency call, say, that the commissary was 25 depleted or that somebody's check didn't go through or money SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8632 4BAESAT2 Stewart - cross 1 order didn't go through. Some of that money was used for that 2 purpose. 3 Q. Well, do you recall on the government's case, when we read 4 through the transcript of the July 2001 visit, that Mr. Yousry 5 engaged in a conversation with your client, Abdel Rahman, where 6 he -- he sort of insisted upon not being paid for his services? 7 Do you recall that? 8 A. I do. 9 Q. Do you recall when we read through the transcript that 10 Mr. Yousry stated that essentially you and I believe Mr. Sattar 11 put the money in his account? 12 A. I think he said that. I'm not certain of how he said it, 13 but I think that was said, yes. 14 Q. And did he not say during either that recording or some 15 other recordings that Mr. Yousry was the one who started to 16 provide to Abdel Rahman the payments for his commissary 17 account? 18 A. I'm not sure he said it. I think he talked about 19 Mr. Sattar having the baby formula business and that the money 20 was invested in the baby formula business. And then the 21 profits from that business was what Mr. Sattar used to -- 22 commissary, and also for the Sheikh's family in Egypt. And we 23 heard some of those calls, too, about money being requested of 24 Mr. Sattar. 25 Q. Well, do you recall any of the recordings that we've read SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8633 4BAESAT2 Stewart - cross 1 or played for the jury during the course of the trial where it 2 was indicated that Mr. Yousry was now taking responsibility for 3 passing the money into Mr. Abdel Rahman's commissary account so 4 he could make purchases from the prison commissary? 5 A. No. That, I don't recall at all. 6 Q. You indicated in your testimony that you got some money for 7 some incidentals? 8 A. Yes. 9 Q. I think the word you used were some other incidental 10 things. Was that for expenses or -- what was that for? 11 A. Yes, partially to compensate for phone calls over the 12 years, which you as you may know from prisons cost four times 13 what a normal long distance phone call would cost and all -- 14 because, as you heard, they're all collect calls. 15 We also had other expenses, things we had done which 16 I -- I don't know whether I have records of them or not, but 17 the Sheikh insisted that I should be paid this amount, 18 because -- I think it was a couple of thousand dollars, I'm not 19 sure. I don't remember what it was. 20 Q. Did you ever have a conversation with Mr. Yousry or 21 Mr. Sattar or with both of them where it was agreed upon that 22 Mr. Yousry would hold Abdel Rahman's money and transfer money 23 to him whenever he needed it? 24 A. As I said, I don't remember having a conversation where he 25 agreed to transfer it to him whenever he needed it. I do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8634 4BAESAT2 Stewart - cross 1 recall saying that we would transfer the money to Mr. Yousry 2 and he would transfer some of it to Mr. Sattar. That, I 3 recall. 4 MR. DEMBER: Your Honor, may I approach the witness. 5 THE COURT: Yes. 6 A. Mr. Dember, are you looking for 2661, because I think you 7 may have inadvertently supplied that to me. 8 Q. Thank you. 9 Ms. Stewart, do you recognize -- why don't you take a 10 look at what is marked for identification as Government 11 Exhibit 2661. 12 A. Yes. 13 Q. Have you looked through it? 14 A. I have. 15 Q. Do you recognize what the exhibit is? 16 A. I do. 17 Q. Do you recognize the handwriting in the exhibit? 18 A. Yes, it's my handwriting. 19 Q. It's your handwriting? 20 A. Yeah. 21 Q. Is the exhibit -- does it consist of some check ledger 22 entries, and there's also, I think, a cancelled check as part 23 of this exhibit? 24 A. Yes. 25 MR. DEMBER: Your Honor, government offers into SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8635 4BAESAT2 Stewart - cross 1 evidence Exhibit 2661. 2 MR. TIGAR: No objection, your Honor. 3 THE COURT: All right. Government Exhibit 2661 4 received in evidence. 5 (Government's Exhibit 2661 received in evidence) 6 MR. DEMBER: May I display it, your Honor. 7 THE COURT: Yes. 8 MR. DEMBER: First, let me just get the jury oriented. 9 It's Exhibit 2661. Let me turn the first page sideways. 10 BY MR. DEMBER: 11 Q. Ms. Stewart, this is a -- it says it's a transaction 12 register, and it's got a date of 11/16. It indicates it's 13 check number one, then the name appears, Mohammed Yousry, and 14 the amount of the check is $35,000, is that right? 15 A. Yes. 16 Q. Do you know what year that was written in? It says 11/16. 17 Do you know what year that was? 18 A. I think it was probably '99. I'm -- 19 Q. And -- 20 A. Might have been '98, but I'm pretty sure it was '99. 21 Q. It says check number one. Was this from this trust 22 account, the transaction register for the trust account that 23 you had? 24 A. Yes. What happened was my bank had closed a branch, 25 reopened, so that they wanted me to have a new account in the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8636 4BAESAT2 Stewart - cross 1 new branch. So we got a supply and we had this transaction 2 register to use until the actual big checkbook arrived in the 3 mail. 4 Q. Let's turn to the second page. The second page -- let's 5 try to zoom here. The second page appears to be -- would have 6 been a cancelled check, is that right? 7 A. I have a second page of the transaction register but -- 8 Q. Well, I skipped a page. Let me see. I think I have a 9 consistent version. 10 Let's go, see if the second page I have is consistent 11 with yours. Is that the second page, Ms. Stewart, that you 12 have? 13 A. I have -- I have -- 14 Q. Look at it. Do you see it on the screen? 15 A. Yes, that is what I have. 16 Q. We're coordinated here. This is another entry in the 17 transaction register? 18 A. It is. 19 Q. And it's -- again, there's a date, 4/16? 20 A. Yes. 21 Q. There's some kind of markings in the next column. It says 22 M. Yousry, and then in parentheses, an O or a zero? 23 A. Yes. 24 Q. And then the figure 10,000, is that right? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8637 4BAESAT2 Stewart - cross 1 Q. The M. Yousry is Mohammed Yousry? 2 A. Yes. 3 Q. I've zoomed, I'm going to go down a little bit so the jury 4 can see what we're seeing. 5 Let's start with the date. Do you know what year 6 April 16th this entry was made for? 7 A. I believe it's 2000. 8 Q. OK. Let me point to the next column. You have some 9 markings there. Can you decipher that for us? 10 A. Next column? 11 Q. On the same page. 12 A. OK. No, I don't know what that is. I know the O, which it 13 looks like I might have tried to write in the margin, referred 14 to Omar, to distinguish it from other accounts that I held in 15 trust and was disbursing money from. 16 Q. OK. When you say "O," you mean the O in parentheses after 17 M. Yousry? 18 A. Yeah, yeah, and the scribble in the front may have also 19 been that. 20 Q. And the $10,000 figure is -- the 10,000 figure is $10,000? 21 A. Yes. 22 Q. Was there a check issued to Mr. Yousry in that amount? 23 A. As far as I remember. 24 Q. Well, let's turn to the next page, which we'll zoom back 25 into this one. That appears to be a cancelled check or a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8638 4BAESAT2 Stewart - cross 1 check, is that right, Ms. Stewart? 2 A. That's correct. 3 Q. And it's payable to Mr. Yousry, and the date is April 16th. 4 Can you tell the date? Is that 2000? 5 A. That is 2000. 6 Q. OK. You signed the check. On the top there it appears 7 that it was cancelled, is that correct, that there's markings 8 on the top? 9 A. Yes. 10 Q. And the check that you signed, OK. Why don't we go to the 11 next page. 12 Is that consistent with your next page of the exhibit, 13 Ms. Stewart? 14 A. Yes, that is the next page. 15 Q. That's an entry there, it says 11/16/99. To Mohammed 16 Yousry. And it says, this check, $35,000, is that right? 17 A. That's right. 18 Q. Is that the checkbook stub? 19 A. Yeah. I think that's the same as the transaction record. 20 I don't know that that's a different -- it is the same date so 21 I'm assuming that's the same $35,000 that was in that first 22 page of the transaction. 23 Q. Sure. Can you show that to the jury -- 24 A. Yeah. I think I just transferred that to be in the 25 official checkbook. That's why I crossed out the number of the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8639 4BAESAT2 Stewart - cross 1 check. 2 Q. That's the first page we looked at, and that appears to be 3 the same. 4 And the next page also appears to be a checkbook stub 5 that reflects the April 16, 2000, check for $10,000 to 6 Mr. Yousry, is that right? 7 A. That's correct. 8 Q. Let's go to the next page. The next page is also a -- what 9 appears to be a checkbook stub for a check that was written? 10 A. That's correct. 11 Q. That's a check that was written on 6 -- June 27, 2000? 12 A. That's right. 13 Q. To Mr. Yousry? 14 A. Yes. 15 Q. For $9,000, is that right? 16 A. Yes. 17 Q. Ms. Stewart, that would be a total of $54,000; 35,000, 18 10,000 and the 9,000, that would be a total of $54,000 that was 19 transferred to Mr. Yousry, is that correct? 20 A. Right. 21 Q. And do you know how much of that was for his services 22 rendered as a translator or interpreter? 23 A. I know that some of this money went to Mr. Sattar. I think 24 it probably was in the amount of around maybe 20,000. So the 25 remainder was either for his services and also for him to SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8640 4BAESAT2 Stewart - cross 1 supply commissary money or invest in something that might 2 supply commissary money or -- that was my understanding. I'm 3 not really remembering the exact amounts that went for which 4 things. 5 Q. Let me just clarify one thing, if I can. When you 6 testified a few minutes ago about the fact that after the 7 appeal was over -- you were referring to Abdel Rahman's appeal? 8 A. Yes. 9 Q. Mr. Yousry was paid by the court during the appeal process 10 to assist in the appeal with Abdel Rahman? 11 A. He was, but he actually -- the Court of Appeals saw fit to 12 cut his voucher because of the tremendous amount of time he had 13 spent; I guess they didn't accept it. Nothing nefarious about 14 it, but they do that on occasion. And so he actually was 15 uncompensated, even during the appeal. 16 Q. The Court determined what the compensation should be? 17 A. Well, lawyers and paralegals and interpreters fill out a 18 voucher, I think you've seen some of them here, and then 19 they're signed off on. But the Court of Appeals makes a final 20 decision. 21 Q. Now, is it -- when you refer to the fact that Mr. Yousry 22 was being compensated with some of this money we just talked 23 about, that was after he was no longer working on the appeal 24 and being compensated by the government, is that true? 25 A. I think part of it went for what he didn't get compensated SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8641 4BAESAT2 Stewart - cross 1 for by the government, but also it was for his weekly 2 attendance on the phone calls and whatever else was asked of 3 him by us as to lawyers. 4 MR. DEMBER: Your Honor, I'm practically done. May I 5 just have a moment to consult? 6 THE COURT: Sure. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8642 4BA5SAT3 Stewart - cross 1 MR. DEMBER: Your Honor, I have no further questions. 2 THE COURT: All right. 3 MR. TIGAR: Your Honor, may I just have a brief recess 4 to get my papers together for redirect? 5 THE COURT: Yes. We will take a brief recess. 6 Ladies and gentlemen, we are going to take a brief 7 recess. Please, remember my continuing instructions. Please 8 don't talk about this case at all. Please, please don't talk 9 about the case. 10 Please remember to keep an open mind until you have 11 heard all of the evidence, I have instructed you on the law and 12 you have gone to the jury room to begin your deliberations. 13 And if you would just wait a moment? The jury can go 14 into the jury room. Please remember all of my instructions. 15 . 16 (Continued on next page) 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8643 4BA5SAT3 Stewart - cross 1 (Jury not present) 2 THE COURT: Ms. Stewart can step down. 3 (Witness steps down) 4 THE COURT: Please be seated, all. 5 The government has finished its cross, were there any 6 other examinations before Mr. Tigar's direct? 7 MR. PAUL: We have no questions of Ms. Stewart, your 8 Honor. 9 MR. STERN: We don't either. 10 THE COURT: All right. 11 MR. TIGAR: Your Honor, I listened to the government's 12 last set of inquiries about the finances hoping that there 13 would be some connection to the charges in the case and I find 14 none and I move to strike it. 15 MR. DEMBER: Your Honor, did you ask for a response? 16 THE COURT: Yes. 17 MR. DEMBER: Your Honor, the relevance of that 18 evidence is that Mr. Yousry -- it establishes -- it will go to 19 establishing Mr. Yousry's participation in this relationship as 20 being more than just a translator or interpreter and that his 21 involvement in this conspiracy is more extensive than what he 22 just explains. 23 THE COURT: The application is denied. 24 We will take 10 minutes. 25 (Recess) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8644 4BA5SAT3 Stewart - cross 1 THE COURT: Please, be seated. 2 MR. TIGAR: Your Honor, while Ms. Stewart was on the 3 stand I set out for the Pacer docket sheet on the Springfield 4 suit and I find that it was indeed, according to Pacer, 5 dismissed without prejudice, which is of course not an 6 adjudication on the merits. And, therefore, I'm puzzled by the 7 question as to whether Ms. Stewart had ever seen some 8 dispositive order by a federal Judge. 9 MR. RUHNKE: Mr. Tigar and I didn't talk during the 10 break. 11 I had just asked the government to produce a copy of 12 whatever it was they were questioning Ms. Stewart on. They 13 apparently don't have one in Court. 14 MR. BARKOW: Actually I think we do. 15 MR. RUHNKE: Actually, now they do have one in Court 16 which strikes me as a little odd. But they've agreed to 17 produce the opinion because it was news to us to that it had 18 been reached, decided on the merits. 19 MR. TIGAR: There is in Pacer one, two -- it's being 20 copied now otherwise I would have it here, two entries -- two 21 Pacer entries above the dismissal without prejudice is a 22 magistrate report recommendation, I know that. 23 MR. BARKOW: Your Honor, I don't know if we have 24 enough copies to distribute but I can assure the Court that 25 there is a written opinion, I have read it, and it addresses SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8645 4BA5SAT3 Stewart - cross 1 all kinds of substantive issues in the written opinion. 2 I don't know if we have enough copies right now, but 3 it's much more extensive than Pacer. 4 MR. TIGAR: May I inquire of Mr. Barkow through the 5 Court is that the magistrate's report recommendation? 6 MR. BARKOW: There is the magistrate's report 7 recommendation and then there is an adoption by the District 8 Court Judge. 9 I don't know if adoption is the right word but there 10 is a dismissal and a reference and incorporation by reference 11 of the magistrate's report and recommendation. 12 MR. TIGAR: Your Honor, that is what is referred to by 13 the line immediately above the dismissal without prejudice. 14 That's not an adjudication on the merits. There is simply no 15 basis to say that there is a Judge's order dismissing the claim 16 because there is not. 17 MR. BARKOW: Your Honor, there is. There is a 18 District Court Judge's order dismissing the claim adopting the 19 Magistrate Judge's findings and Magistrate judge's opinion. 20 MR. TIGAR: Your Honor? 21 THE COURT: Counsel. 22 MR. TIGAR: Regardless of what a District Judge may 23 have done, and -- I now have the docket sheet which I can hand 24 up, if I may -- 25 MR. BARKOW: Your Honor, I have one copy of it here so SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8646 4BA5SAT3 Stewart - cross 1 I can pass it or just tell the Court, or I could read it, but 2 it is marked. We are going to make more copies of this, it is 3 marked as Government Exhibit 600. 4 The first two pages of that exhibit is an order and 5 judgment by U.S. District Judge Russell Clark dated March 30th 6 of 1999 and it reads, the last two paragraphs, it is a two-page 7 order: 8 After de novo review of the report and recommendation, 9 and the files and records in this case, it is concluded that 10 the findings of fact, conclusions of law and proposed actions 11 of the Magistrate are correct and should be approved. 12 It is therefore ordered that this complaint be and is 13 hereby dismissed without prejudice. 14 And there is a, in the beginning of the order it 15 refers to the Magistrate Judge's opinion and report and 16 recommendation and the report. The recommendation doesn't have 17 page numbers but it is a rather lengthy report and 18 recommendation, maybe 10, 12 pages, and it's dated March 5 of 19 1999. 20 MR. TIGAR: That is not an adjudication on the merits, 21 your Honor. Nor is it an appealable order. 22 MR. BARKOW: Your Honor, the magistrate's report deals 23 with the merits of the claims and the District Court dismissed 24 the case after approving the Magistrate Judge's report and 25 recommendation after reviewing it de novo. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8647 4BA5SAT3 Stewart - cross 1 THE COURT: The issue, appears to me, to be of no 2 weight. 3 The record, as it stands now is Ms. Stewart understood 4 that the suit was dismissed without prejudice. Ms. Stewart 5 testified, as I recall, that she never saw a decision dealing 6 with the merits of the case for the merits of the SAMs. 7 So, from what I've heard, there may have been an 8 opinion that dealt with the merits of the SAMs. I haven't read 9 the report and recommendation or the adoption by the District 10 Court, but Ms. Stewart says that she was not sent, or she 11 didn't review any of those documents. Her recollection is that 12 the suit was dismissed without prejudice. And she can only 13 testify about what her recollection was and what influenced her 14 recollection. 15 The issue, with respect to the legality or validity of 16 the SAMs is, in any event, not a matter for the jury. 17 So, that's where the matter is. 18 Now there would be -- so that's why I don't attach any 19 weight between the parties at this point, except that there 20 were a good faith basis for the questions. I understand, as I 21 said, what the testimony is at this point. And the witness 22 couldn't testify about documents that she hadn't seen or read 23 or that influenced her state of mind. 24 MR. RUHNKE: Can we have a moment, your Honor? 25 THE COURT: Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8648 4BA5SAT3 Stewart - cross 1 MR. TIGAR: The transcript was: 2 "Q Did Mr. Clark ever talk to you about a decision that was 3 made? You never saw a decision where the Federal District 4 Court actually dealt with the merits of that case? 5 "A No, I never did. 6 "Q You're telling us Mr. Clark never told you that a 7 discussion" -- 8 I mean, the implication is either she's out of the 9 loop, she doesn't know what's going on therefore how could she 10 be acting in good faith. Or that there was this decision that 11 adversely decided the case against her client on the merits and 12 therefore all this talk of another conditions suit is simply a 13 smoke screen. That's the clear implication of the questions, 14 your Honor, otherwise they're not relevant. 15 And that's the misleading impression that's been left 16 with this jury and I respectfully submit that there was no good 17 faith basis for any of that because the decision of the federal 18 judge did not deal with, quote, the merits. 19 The term the merits is a very well understood term, 20 your Honor. And the docket sheet tells us what happened. 21 I'm asking for an instruction, your Honor, that in 22 fact the Court has reviewed the records of its Sister Court and 23 finds that the lawsuit was dismissed without prejudice which 24 means that that did not represent an adjudication on the 25 merits. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8649 4BA5SAT3 Stewart - cross 1 I'm asking the Court to take judicial notice of the 2 records of your Sister Court and instruct the jury as to the 3 meaning of this to end the speculation. 4 MR. BARKOW: Your Honor, the inferences that Mr. Tigar 5 points to are proper inferences and we would offer this into 6 evidence if the jury wants to see this rather than taking 7 judicial notice of this order judgment and report and 8 recommendation. 9 As I said, I only have one copy so I can't distribute 10 them but there is a discussion in here about what the complaint 11 was in the case, what the allegations were. Each one is gone 12 through and rejected. And there was a request for injunctive 13 relief and monetary compensation. Both were denied. 14 So it wasn't just a decision on mere mootness because 15 it wasn't just about injunctive relief, it was a request for 16 money and it was denied. And the order and judgment by the 17 judge reviewed de novo that report and recommendation and 18 adopted, approved the report and recommendation. 19 And so, certainly it goes to state of mind and 20 knowledge of the participants in the suit, if they knew about 21 it, about whether it was appropriate to bring a new suit. It 22 was dismissed without prejudice. 23 But the merits of the claims were addressed. There is 24 a long discussion in here about the merits of the allegations 25 and each one is considered and rejected and that certainly goes SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8650 4BA5SAT3 Stewart - cross 1 to state of mind. 2 And if the implication or the inference is that 3 Ms. Stewart was out of the loop, then sobeit, then that's the 4 implication or inference. 5 MR. TIGAR: There you have it, your Honor. They wish 6 to draw, have an inference drawn that is flatly contrary, (A), 7 to the rule that judicial dismissal without prejudice except on 8 the merits except as to procedural matters; (2), that a report 9 and recommendation by a nonArticle III Judge has some weight or 10 meaning that somebody should attach to it; (3), that this 11 decision was, in some sense, binding in any way, which it was 12 not because it wasn't even an appealable order because it 13 wasn't adverse and therefore under the final judgment rule 14 would not have been appealable. 15 And so on. That is it is just a rather difficult set 16 of inferences that are just flatly contrary to what I 17 understand to be the law of judgments. 18 THE COURT: Do you want to take a moment to review the 19 report and recommendation and the Judge's decision and ask 20 whether those should be put into evidence? 21 MR. TIGAR: I would oppose it being put into evidence, 22 your Honor, because they are simply preliminary discussions, 23 one by a nonArticle III judicial officer and the other, however 24 much the parties might have disagreed with what the Judge said, 25 whatever the Judge said, they would be powerless to seek SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8651 4BA5SAT3 Stewart - cross 1 further review in the Eighth Circuit from it. 2 So, I'm aware of what these intermediate decisions 3 are, that's why we went and got the Pacer result. 4 THE COURT: And was there a discussion of the validity 5 of the SAMs in the report and recommendation? 6 MR. TIGAR: I don't recall whether there was or not, 7 your Honor. 8 MR. BARKOW: I don't think so, your Honor. I'm not 9 intimately familiar with it but there was a discussion about 10 denials of constitutional rights to Abdel Rahman because he was 11 denied his free exercise rights, equal process rights, access 12 to legal counsel, adequate medical care and those sorts of 13 constitutional claims. 14 And the defendants raise the defense of qualified 15 immunity and so in the context of that the Court had to grapple 16 with the question of whether the defendants knowingly violated 17 those rights and found with respect to each one that they 18 wouldn't have because basically the record showed that they 19 wouldn't have reasonably concluded that the conditions violated 20 those rights because there were either countervailing factors 21 because of the nature of Abdel Rahman's conviction and that 22 sort of thing, or because the law just doesn't support the 23 claims that his rights weren't violated. 24 And then at the end, in a separate paragraph, it 25 addresses the equitable relief claims and says that since he is SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8652 4BA5SAT3 Stewart - cross 1 no longer housed there, the equitable claims are moot. 2 So, we don't think that there is any basis for any 3 instruction of any sort. 4 I mean, first of all, there was a question and no 5 answer demonstrating, as the Court pointed out in the 6 beginning, that Ms. Stewart knew about it. So, there is no 7 evidence of this right now. 8 And, there was no, we would submit, no impermissible 9 suggestion. If Mr. Tigar feels that this was damaging it can 10 be addressed on redirect and that seems to be the sum and 11 substance of what needs to be done at this point. 12 And we will make copies of this but I just don't have 13 them right now. 14 THE COURT: I agree. I am perfectly prepared to take 15 10 minutes so that the parties can review the documents. 16 I don't -- and I will also review the documents but I 17 don't see a reason, in view of the testimony, to do anything 18 further. 19 MR. TIGAR: We have stated our position and the Court 20 has ruled. If the government offers this later on down the 21 road, your Honor, there will be plenty of time to argue its 22 admissibility. 23 THE COURT: Oh -- 24 MR. TIGAR: And therefore I'm prepared not to take 10 25 minutes and to start with Ms. Stewart, if we can save jury SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8653 4BA5SAT3 Stewart - cross 1 time. 2 THE COURT: All right, but you know -- look. 3 You want me to take judicial notice of various things 4 without wanting judicial notice of the complete record, and 5 that would not be reasonable and that's a not a reasonable 6 request for judicial notice. 7 The government offered to put in the full documents, 8 the defendants declined. And I said I reviewed the testimony 9 and Ms. Stewart's understanding and why that's reasonable for 10 the state of the record, the questions, the answers. 11 Ms. Stewart can't testify about something that she hasn't seen. 12 And so, any discussion about the rejection of all of 13 these constitutional claims couldn't reasonably come in through 14 Ms. Stewart because Ms. Stewart said she hasn't seen any of 15 this. 16 I had taken the gist of the questions to be that in 17 the course of the litigation there was some rejection of 18 various things and it said that there was a rejection by the 19 Magistrate Judge and that the District Court accepted that, 20 adopted it in the final inclusion. 21 If I were to take judicial notice of what happened I 22 can't take -- in an effort to clarify or deal with those 23 questions I would have to take reasonable judicial notice of 24 everything that happened there and that's reasonably related to 25 those questions. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8654 4BA5SAT3 Stewart - cross 1 The state of the record now is in fact a correct 2 statement of the record. Answers are evidence, not questions; 3 and Ms. Stewart has said her recollection and what she has not 4 seen. That does not need any correction. 5 MR. TIGAR: I -- 6 THE COURT: I was going to say, the parties are going 7 to face this with respect to, I take it, Mr. Clark, who would 8 have seen these things. And I will certainly listen to the 9 parties. 10 I also just want to point out this comes up at -- 11 MR. TIGAR: I'm sorry. 12 THE COURT: That's all right. If the parties want an 13 opportunity to consult I will give you the opportunity. 14 15 The other thing I was going to say is there is a, as I 16 said before, matters of law of the Court. And to the extent 17 that there are issues that come up, all that the witnesses can 18 do is to give their understanding to the extent that it's 19 relevant to an issue in the case. Ultimately, if the jury has 20 to be instructed on the law, it is for the Court to instruct 21 them on, on the law. 22 Did the parties want to consult at all? 23 MR. TIGAR: I didn't feel the need to consult, your 24 Honor. 25 THE COURT: I thought that -- I looked down and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8655 4BA5SAT3 Stewart - cross 1 thought that there was a desire to consult. 2 MR. TIGAR: Yes, your Honor. Five minutes would be 3 helpful. 4 I asked the Court to take judicial notice only of what 5 I thought was relevant, and we maintain our position as 6 strongly as possible that the unreviewable musings of even 7 Judges in Missouri, Article III Judges, cannot conceivably be 8 relevant to disputed issues, particularly when they raise 9 issues about finality and all of these complex doctrines of, 10 about judgments, law of judgments. That could very well add 11 confusion to the mix of information before the jury. 12 That was our position. We will stick to it. 13 If I may have five minutes with my client we will be 14 ready to proceed. I did not intend any disrespect by 15 suggesting we start right now. I thought that that was a good 16 thing to do. 17 THE COURT: No, I didn't take it as disrespect. I saw 18 that there was a desire for consultation and you were not 19 expressing any disrespect to me. I thought you were -- I 20 thought that there was a desire for consultation. 21 MR. TIGAR: There is, your Honor. 22 23 THE COURT: See you shortly. 24 (Recess) 25 MR. MORVILLO: Your Honor, we are handing up to your SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8656 4BA5SAT3 Stewart - cross 1 law clerk a copy of what we were talking about. 2 THE COURT: Are we ready? 3 MR. TIGAR: Yes, your Honor. We are ready. 4 THE COURT: If Ms. Stewart would take the stand, 5 please? 6 (Continued on next page) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8657 4BA5SAT3 Stewart - cross 1 (Jury present) 2 THE COURT: All right, Ms. Stewart is on the stand. 3 Mr. Fletcher? 4 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 5 are still under oath. 6 THE WITNESS: Yes. 7 THE COURT: Mr. Tigar, you may proceed. 8 REDIRECT EXAMINATION 9 BY MR. TIGAR:: 10 Q. Ms. Stewart, you were asked on cross-examination many 11 questions about your interpretation of the SAMs. Do you 12 remember that? 13 A. Yes. 14 Q. Now, I'm going to place before you what is in evidence as 15 Government Exhibit 12, and I will put it on the Elmo, if I may. 16 Would it be more convenient if you had a copy to look 17 at? 18 A. It would. 19 Q. All right, I will see if I can find an extra. 20 MR. TIGAR: May I approach, your Honor? 21 THE COURT: Yes. 22 MR. TIGAR: Thank you. 23 Q. This is the one that you signed in May of 2001, is that 24 right? 25 A. That's correct. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8658 4BA5SAT3 Stewart - redirect 1 Q. That was the one -- and how had that language been arrived 2 at? 3 A. Through a negotiation between my lawyer, Stanley Cohen, and 4 Mr. Fitzgerald -- Pat Fitzgerald. 5 Q. And, would you read, please, the last sentence of paragraph 6 one? 7 A. The last sentence of paragraph one says: I will only allow 8 the calls to be used for legal discussion between Abdel Rahman 9 and me. 10 Q. And would you please read the last sentence of paragraph 11 two? 12 A. I will only allow the meetings to be used for legal 13 discussion between Abdel Rahman and me. 14 Q. Now, in interpreting the SAMs and the affirmations, did 15 you -- well, tell the jurors, how did you do that? What 16 reasoning process did you use? 17 A. Well, initially when we first got the SAMs, I read them 18 with regard, as I testified earlier, with regard to those 19 regulations and observations which accompanied them when they 20 were first promulgated which talked about their 21 constitutionality and which also talked about least restrictive 22 alternative, that being that they should be viewed in the least 23 restrictive alternative. 24 I also viewed -- when the SAMs would talk about 25 legal -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8659 4BA5SAT3 Stewart - redirect 1 Q. I'm going to stop you for just a moment. 2 A. Sure. 3 MR. TIGAR: May I show the witness, your Honor, 4 LS-204, in evidence? 5 THE COURT: Yes. 6 Q. And by the regulations you are referring to this document 7 which we have in the Federal Register publication form, is that 8 right? 9 A. Yes, that's right. 10 Q. And is that the same document as the one -- 11 MR. TIGAR: May I show Ms. Stewart Government 2635, in 12 evidence? 13 THE COURT: Yes. 14 Q. That was a fax that had come from your office? Or arrived 15 at your office, rather? 16 A. Arrived at my office; yes, it is. 17 Q. Was this the form, 2635, that you originally saw? 18 A. Yes. 19 Q. Had you concluded your answer about your interpretive 20 approach? 21 A. Yes. 22 MR. TIGAR: Now, may I show Ms. Stewart Government 23 Exhibit 12, please, in evidence? 24 THE COURT: Yes. 25 Q. Now, in paragraph three there is a reference to mail. Do SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8660 4BA5SAT3 Stewart - redirect 1 you see that? 2 A. Yes. 3 Q. Now, did you ever send Abdel Rahman an attorney-client 4 letter from your office, to him in prison? 5 A. No, because he was blind and could not read a letter or 6 indeed any printed correspondence. 7 Q. Did you know of any way to have a confidential 8 communication with Abdel Rahman by sending something in writing 9 from your office to him in the prison? 10 A. No, I did not. 11 Q. Now, did the -- in addition to the language that the 12 government showed you, did the SAMs contain references to 13 attorney-client visits? 14 A. They do. 15 MR. TIGAR: May I show Ms. Stewart Government Exhibit 16 6, your Honor? 17 THE COURT: Yes. 18 Q. Ms. Stewart, looking at page 2 -- and I will have to do 19 this on the Elmo -- do you see the reference in paragraph 4B to 20 attorney/client contact with the inmate? 21 A. Yes. 22 Q. Further now to page 3, paragraph 5b, do you see 23 "attorney-client privileged" there in 5b? 24 A. Yes. 25 Q. And the language that I have showed you in Government SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8661 4BA5SAT3 Stewart - redirect 1 Exhibit 12, do you recall whether there was, in earlier 2 editions of the affirmation, references to legal questions? 3 A. Yes. 4 MR. TIGAR: May I show Ms. Stewart, please, Government 5 Exhibit 7, in evidence? 6 THE COURT: Yes. 7 Q. Ms. Stewart, I'm going to show this on the Elmo machine. 8 That's the affirmation from May of 2000, is that right? 9 A. That's correct. 10 Q. And does that affirmation contain a reference to legal 11 matters? Directing your attention to paragraph two. 12 A. It does. 13 Q. Now, when Mr. Cohen dealt with how a new SAM affirmation 14 would be drafted, during that period, did anybody ever tell you 15 that in order to make a deal about an affirmation they had to 16 talk to the Justice Department in Washington? 17 A. No. No one ever told me that. 18 Q. And what was your understanding of who Mr. Cohen was 19 negotiating with in order to make the settlement that resulted 20 in Government Exhibit 12, the May 2001 SAM? 21 A. It was my understanding he spoke exclusively with Pat 22 Fitzgerald or whoever might have been in his stead for periods 23 of time. But it was Mr. Fitzgerald that made the final 24 decision as to what the language would be and how the SAM would 25 be constituted. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8662 4BA5SAT3 Stewart - redirect 1 MR. TIGAR: Now, may I show Ms. Stewart Government 2 Exhibit 2657, in evidence, your Honor? 3 THE COURT: Yes. 4 Q. Ms. Stewart, to orient us, this is the fax cover sheet from 5 August 28th; and I'm going to turn to the fourth page of the 6 exhibit. 7 You recall this letter? 8 A. Yes. 9 Q. Prior to August 3rd, 2000, had anyone in the government of 10 the United States ever communicated with you in any way to 11 complain about anything you had done in relationship to the 12 SAMs? 13 A. Well, there was the initial call in late July from Pat 14 Fitzgerald to me which was certainly, I would say, a complaint. 15 And then he followed up with this letter. 16 Q. Prior to that call, in July of 2000, had anyone from the 17 government ever complained to you about your conduct in 18 relationship to the SAM? 19 A. No. Not at all. 20 Q. Now, you were asked about the July call to Mr. Fitzgerald; 21 do you remember how you responded to him when he called you? 22 A. I responded to him that I would contact an attorney and 23 that that attorney would be in touch with him. 24 Q. Why did you decide that you would have an attorney call him 25 about that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8663 4BA5SAT3 Stewart - redirect 1 A. Well, it's perhaps built-in to being a lawyer and being a 2 criminal defense lawyer that when we are talking to someone we 3 see as adversarial -- and certainly his tone of voice that day 4 was accusatory at best -- that you intercede. You allow an 5 attorney to do the talking for you because it is a, I guess a 6 safer -- I don't want to call it safer, that puts too much on 7 it -- but a more discrete course of conduct to have a third 8 party seeking when there seems to be sort of animosity there. 9 Q. Now, you were asked about Islamic fundamentalism on 10 cross-examination; do you support Islamic fundamentalism? 11 A. Personally? 12 Q. Yes. 13 A. No, I do not. 14 Q. Do you support the right of existence of the State of Islam 15 permanently? 16 A. Yes, I believe it has a right to exist but I also believe 17 that Palestine has a right to exist and that something must be 18 worked out so that they can exist fully and compatibly. 19 Q. You were asked on cross-examination about a conversation 20 with Greta Van Susteren, what did you expect when you went up 21 there and talked? 22 MR. DEMBER: Objection, your Honor. 23 THE COURT: Rephrase. 24 Q. Had you had a conversation with Ms. Van Susteren about how 25 that interview was to go? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8664 4BA5SAT3 Stewart - redirect 1 A. Yes. 2 Q. And as a result of that conversation, what did you expect? 3 A. As I said, Ms. Van Susteren had -- 4 MR. DEMBER: Objection, your Honor. 5 THE COURT: Basis? 6 MR. DEMBER: Relevance what the expectation was. 7 Relevance. 8 THE COURT: Overruled. 9 THE WITNESS: I had spoken to Ms. Van Susteren a 10 number of times before the date of the interview. She had 11 assured me that I would get at least a half hour to -- 12 MR. DEMBER: Objection. Hearsay, your Honor. 13 THE COURT: Sustained. 14 THE WITNESS: I -- 15 MR. DEMBER: Motion to strike, your Honor. Excuse me, 16 your Honor. I'm sorry. Motion to strike question and answer. 17 THE COURT: Fine. Sustained, stricken. 18 BY MR. TIGAR:: 19 Q. Go ahead. 20 THE COURT: Why don't you -- 21 MR. TIGAR: Shall I place a new question, your Honor? 22 Yes? 23 THE COURT: Yes. And more specifically, all right? 24 BY MR. TIGAR:: 25 Q. What did you expect would be the format of the interview? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8665 4BA5SAT3 Stewart - redirect 1 MR. DEMBER: Objection. Hearsay, your Honor. 2 THE COURT: Not offered for the truth. 3 Q. Without saying what anybody else told you, Ms. Stewart. 4 A. I was familiar with Ms. Van Susteren's show before I went 5 to Fox and she did a basic law -- law in the news show. And I 6 had liked that show. And I had also thought that, my own 7 thoughts, that the length of time that the program was on that 8 I would have a full opportunity to explain and not just do 9 sound bytes with her. 10 MR. TIGAR: Your Honor, may I approach? 11 THE COURT: Yes. 12 Q. Showing you, Ms. Stewart, LS-408. 13 MR. DEMBER: Objection, your Honor. Your Honor, we 14 have discussed this beforehand. 15 THE COURT: All right. 16 MR. TIGAR: I'm sorry, Judge. I will tender a copy to 17 Mr. Fletcher, your Honor. 18 THE COURT: I understand. 19 Why doesn't the witness turn the document over? 20 MR. TIGAR: Yes, your Honor. 21 THE WITNESS: I don't have it. 22 MR. TIGAR: She doesn't have it. 23 THE COURT: It is not necessary, I thought, to give 24 the witness the document at this point. 25 MR. TIGAR: Oh. I was going to ask the foundational SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8666 4BA5SAT3 Stewart - redirect 1 question with the document in front of her, your Honor, but I 2 needn't do that. 3 THE COURT: All right. 4 BY MR. TIGAR:: 5 Q. Ms. Stewart, do you recall everything you said to Ms. Van 6 Susteren? 7 A. In substance, but not exactly. 8 Q. Do you recall being asked: 9 "Q Lynne Stewart is with me in New York. Lynne, did you do 10 it?" 11 And answering: 12 "A Well, what does do it mean?" 13 A. I remember saying that, yes. 14 Q. And do you remember Ms. Van Susteren saying: 15 "Q All right. Well?" 16 And answering: 17 "A We have to start with the definition here. I am a lawyer. 18 I acted as a lawyer and I believe I never betrayed the trust 19 that my client had in me or, for that matter, that my country 20 had in me." 21 A. I do remember saying that. 22 Q. Do you remember being asked: 23 "Q Were you surprised to be indicted, or did you know that the 24 United States was seeking an indictment from the grand jury?" 25 And answering: SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8667 4BA5SAT3 Stewart - redirect 1 "A I actually was very surprised. I had no idea whatsoever. 2 Um, most of these acts, you know, took place at least two years 3 before the indictment was ever handed down. I also felt that 4 the worst that would happen to me in terms of this was that I 5 would no longer -- I would be cut off from the client, if I was 6 to admit doing the, um, passing of the press release." 7 Do you remember that? 8 A. Yes, I do. 9 Q. Do you remember being asked and giving the following 10 answer: 11 "Q All right. Let's, let's talk about, I mean, it seems to me 12 I have taken a look at the indictment. One -- one of the 13 charges against you, and correct me if I am wrong, is that the 14 government claimed that you allowed information to be passed 15 from your client, who is in a prison in Minnesota, Federal 16 Prison, to be passed from him to an interpreter on to someplace 17 in the Middle East. To Egypt, right? 18 "A Right. It was a press release. So let's be very clear. 19 We're not talking about sending secret messages or coded 20 messages. It was a press release in which the Sheikh made a 21 political opinion. He said that he thought the cease-fire that 22 had been entered into -- and actually there was a prior release 23 made to the same newspaper series but actually he said that 24 that cease-fire should no longer be honored. And he also said 25 that I am not there. I am not privy to the information that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8668 4BA5SAT3 Stewart - redirect 1 you privy to, so I can be completely wrong. Consider this my 2 advice only." 3 Do you remember that? 4 A. Could you slow down just a little, Mr. Tigar? 5 Q. Yes. I'm sorry. 6 But, do you remember that? 7 A. Yes, do I remember that. 8 Q. I will slow down. 9 Do you remember being asked this question and making 10 this answer: 11 "Q Here's what I don't understand is that the Sheikh -- you 12 don't speak the Sheikh's language, right?" 13 You saying: 14 "A No. 15 A. Yes, that's what I said. 16 Q. "Q Okay, so you had an interpreter present, right?" 17 And you saying: 18 "A Yes?" 19 A. Yes, I remember that. 20 Q. "Q And the Sheikh made the communication to the 21 interpreter?" 22 "A Yes." 23 A. Yes, I remember that. 24 Q. "Q And then the interpreter gave it to you? 25 "A Yes." SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8669 4BA5SAT3 Stewart - redirect 1 Remember that? 2 A. I remember saying that. 3 Q. "Q In the form of a press release?" 4 And then your answering: 5 "A Yes. Well, in the form of a press release, I mean we spoke 6 about this. I assume, if they were taping all of our 7 conversations, and as I said in another occasion, perhaps the 8 American people would think a little bit not about what I was 9 doing but what they were doing there at that time. But 10 notwithstanding that, the way we were, because we had limited 11 time was, he would interpret things we had decided on ahead of 12 time. When we would go back for the second day of meetings we 13 would then go over what had been talked about and we would do 14 that in a back and forth way." 15 Do you remember that? 16 A. I do. 17 Q. Was that an accurate description of how you had worked with 18 the interpreter? 19 A. Yes, it was. 20 Q. Do you remember this question and answer was read out 21 yesterday: 22 "Q Had you, had you signed an agreement not to make -- not to 23 make those press releases because this is an unusual client? 24 "A I had, it's an interesting story" -- 25 THE COURT: I'm sorry, could you use answer? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8670 4BA5SAT3 Stewart - redirect 1 Q. "A I have. It's an interesting story, Greta, because I 2 signed it once, then there is the press release. The 3 government knew about the press release. They called me up. 4 They said we found you made a press release. You can't visit 5 anymore. My lawyer, Stanley Cohen, called them at that point 6 and said, well, she needs to see the client, how are we going 7 to arrange that? They said, sign the agreement again. So, I 8 signed the agreement again, went back out to Minnesota, saw him 9 at least two more times after that press release was released." 10 Do you remember that? 11 A. I remember saying that, yes. 12 Q. Let me continue: 13 "Q But you knew you were -- but you knew you had agreed not to 14 do that? 15 "A We had agreed not to do that but I represent a client who 16 is an important person on the world scene. He was an important 17 person. He remains an important person. 18 "Q Well, why not -- why not fight that agreement and not 19 violate it? 20 "A Well" -- unintelligible. 21 Do you remember that? 22 A. Yes. 23 Q. You don't remember the unintelligible? 24 A. I don't remember the unintelligible, but. 25 Q. "Q I mean, why don't you go to Court and say that, you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8671 4BA5SAT3 Stewart - redirect 1 know, have you a right to do this. You represent a client or, 2 you know, a First Amendment right or whatever? Why just sort 3 of go and poke a stick in their eye? Because you've got 4 yourself an indictment out of it. 5 "A Right. Actually that was in the works. That was one of 6 the main things we talked about. But we thought it was a 7 question of timing of bringing such a suit at a time when it 8 could favorably be received. As you know, if you bring 9 something of that nature on September 12 of last year it would 10 have been filed in the circular file." 11 Let me pause here. After your July 2001 visit to your 12 client, do you remember writing that letter to the warden and 13 asking for copies of the forms that you would use to make the 14 complaint? 15 A. Yes. I remember -- when I saw the letter I remembered 16 writing to her and asking for that. 17 Q. Now, why didn't you file a lawsuit -- let's go back. 18 Why didn't you file a lawsuit in calendar year 2000, 19 in the fall of 2000? 20 A. In the fall of 2000? 21 Q. Yes. 22 A. We were -- I was suspended from speaking or communicating 23 in any way with my client and it seemed to, that to file a 24 lawsuit under those conditions would be just about impossible. 25 Q. Why didn't you file a lawsuit in September 2001? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8672 4BA5SAT3 Stewart - redirect 1 A. Well, as I said in that interview with Ms. Van Susteren, it 2 was under discussion. I actually had done some work on the 3 suit during my vacation, during the month of August 2001, and 4 of course we came back to New York right before Labor Day. I 5 actually had a meeting with Ramsey and -- I'm not sure who else 6 was there. 7 But, at any rate, in early 2001. And then, of course, 8 September 11th occurred and it did not seem at all opportune to 9 bring such a lawsuit. 10 Q. When you say not at all opportune, what do you mean? 11 A. It was a period, as we remember, of great distrust. I 12 don't think -- I think civil liberties, particularly of Muslims 13 was not -- 14 MR. DEMBER: Objection, your Honor. 15 THE COURT: Sustained. 16 MR. DEMBER: Ask that it be stricken. 17 THE COURT: All right. Stricken. 18 BY MR. TIGAR:: 19 Q. You decided it was not an opportune time to file a lawsuit? 20 A. That's right. 21 Q. To continue, do you recall being asked: 22 "Q Is there any allegation that you distracted, uh, distracted 23 the guards or the correctional officers so the, so your client 24 could have a conversation with the interpreter that's not part 25 of this press release? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8673 4BA5SAT3 Stewart - redirect 1 THE COURT: I'm sorry to interrupt, but when I said: 2 "All right." I said: All right. "Stricken." 3 I don't mean to interrupt and it's solely to tell the 4 jury that I have told you before, I have a transcript that 5 goes, that is in front of me, from the court reporter. And 6 sometimes I look at the, at the transcript and realize that I 7 didn't say something or I have to correct the record, sometimes 8 I correct the question or answer, and it is to be helpful to 9 the reporters. 10 Don't take any significance from the fact that it 11 takes me a couple of questions or answers to correct myself. I 12 do that from time to time. 13 And I certainly didn't mean to interrupt your question 14 and answer. 15 MR. TIGAR: Your Honor, so I know where I am -- I know 16 I'm here. 17 THE COURT: The reporter can read back the last 18 question. 19 MR. TIGAR: Your Honor, does the answer: "It was not 20 opportune" stand? Is that correct? That's as much of the 21 answer that she just made. That stands? 22 THE COURT: Yes. 23 MR. TIGAR: All right, thank you. 24 Q. Do you remember being asked this question: 25 "Q Is there, is there any allegation that you distracted -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8674 4BA5SAT3 Stewart - redirect 1 distracted the guards or the correctional officers so the, so 2 your client could have a conversation with the interpreter 3 that's not part of this press release but which may have been, 4 at least the government thinks, there is terrorism? 5 "A Well, that, I don't know what that is about. I mean, the 6 guards were not in the room with us so it's hard to understand 7 how did we distract them." 8 Do you remember that? 9 A. I do remember that. 10 Q. "Q But, but -- well, I mean that there -- you know the 11 conversations are being taped? 12 "A We didn't know they were being taped. They were being 13 taped. We had no idea they were being taped. We were relying 14 on the attorney-client privilege, which is really what this 15 case is all about. It really is about, do people have a right 16 to talk to each other in their own way, without interference 17 from the government." 18 Do you remember that? 19 A. I do remember that. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8675 4BAESAT4 Stewart - redirect 1 BY MR. TIGAR: 2 Q. Do you remember being asked this question, making this 3 answer: 4 I guess, you know, as I listened to you talk about the 5 case, when I hear you talk about it, you'll get your jury trial 6 and it's a terrifying experience. What I don't understand, 7 your willingness to sort of poke the government in the eye when 8 you said that you weren't going to do this press release and 9 you did it anyway and you were sort of asking for it. 10 Well, you know, Greta, you take on a client and you 11 have to take the client -- 12 THE COURT: Answer. 13 Q. Answer, well, you know, Greta, you take on a client and you 14 have to take the client as who he is. Sheikh is facing life in 15 prison, and the only hope of ever getting out of prison is if 16 the political conditions in Egypt change and they change in 17 some way. 18 Do you remember that? 19 A. I do. 20 Q. Now, Ms. Stewart, as you sit there today, do you consider 21 that you ever violated any undertaking, promise that you made 22 in your affirmation? 23 A. No, I do not. 24 Q. Do you -- as you sit there today, do you believe that you 25 violated the SAMs or the language in the SAMs that -- that SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8676 4BAESAT4 Stewart - redirect 1 we've looked at here today? 2 A. No, I do not, because, as I've explained, that I was 3 operating under the ethical rules by which all lawyers are 4 encouraged -- to be autonomous and make decisions -- and that 5 those rules were not in conflict with the SAMs. 6 Q. Now, you were asked questions on cross-examination about 7 these ethical rules. Do you remember that? 8 A. Yes. 9 Q. And for our benefit, what are disciplinary rules? 10 A. As I understand it -- and I'm not an expert on ethics, but 11 the canons of ethics for the First Department, which is 12 Manhattan and the Bronx, cover, first, canons, which spell out 13 the broad ethical consideration; then the appellate division, 14 the judges on the appellate division or a committee acting on 15 their behalf lists ethical considerations, things to be thought 16 about and discussed and guidance for lawyers under those 17 canons. 18 The third part of each canon are disciplinary rules 19 which a lawyer is obligated to obey. It's the ethical 20 considerations are basically open questions and the canon is 21 for guidance in a general way. 22 Q. Now, is -- if a person wanted to look up -- oh, let me ask 23 this: These disciplinary rules, is that a matter of federal 24 law or state law? 25 A. They are state law but I -- my understanding at least is, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8677 4BAESAT4 Stewart - redirect 1 and I'm dredging back in memory here, that when the question 2 was -- came up, and it came up during a time when Attorney 3 General Thornburg, I think, under either Reagan or Bush, the 4 First, promulgated a memo indicating that assistant US 5 attorneys could speak -- 6 MR. DEMBER: Objection, your Honor. Relevance. 7 THE COURT: Sustained. 8 MR. DEMBER: I ask that section of the answer be 9 stricken. 10 THE COURT: No. No. 11 Q. Is it -- 12 THE COURT: Go ahead, ask another question. 13 Q. All right. Is it your understanding that the rules are a 14 matter of state law or federal law? 15 A. State law. 16 Q. And is your -- is a part of your understanding based on 17 experiences that you had in which there has been some question 18 about that raised with respect to the conduct of lawyers? 19 MR. DEMBER: Objection. Leading, your Honor. 20 THE COURT: Sustained. 21 Q. Please state the basis for your understanding that these 22 rules are matters of state law and not federal law. 23 A. In the years of my practice, sometimes these issues have 24 come up in connection not with me but with other matters that 25 I've been aware of. And there has been a -- some conflict with SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8678 4BAESAT4 Stewart - redirect 1 regard to that, and my understanding is it was always resolved 2 in favor of the ethical rules of the state as opposed to any 3 federal interpretation. 4 Q. Now, Ms. Stewart, I'm going to ask you about some 5 provisions of these various ethical principles and ask you 6 about whether you are familiar with them. Are you familiar 7 with the preamble to the New York State Bar Association 8 Professional Responsibility Rules? 9 A. Well, I don't think I could quote it but I've certainly 10 read it. 11 Q. Are you familiar with this principle, or this language: 12 Within the framework of these principles a lawyer 13 must, with courage and foresight, be red -- excuse me, be able 14 to and ready to shape the body of the law to the ever-changing 15 relationships of society? 16 A. Yes. 17 Q. And do you agree with that? 18 A. I do agree with that. 19 Q. Let me -- I'm going to read you from ethical consideration 20 2-27 and ask if you agree with it: 21 History is replete with instances of distinguished 22 sacrificial services by lawyers who have represented unpopular 23 clients and causes. Regardless of personal feelings, a lawyer 24 should not decline representation because a client or a cause 25 is unpopular or community reaction is adverse. A lawyer's SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8679 4BAESAT4 Stewart - redirect 1 representation of a client, including representation by 2 appointment, does not constitute an endorsement of the client's 3 political, economic, social or moral views or activities. 4 Are you familiar with that principle? 5 A. Yes, I'm familiar with that. 6 Q. Do you agree with it? 7 A. I do. 8 Q. I'm going to read you from ethical consideration 2-26. 9 A lawyer is under no obligation to act as advisor or 10 advocate for every person who may wish to become a client. But 11 in furtherance of the objective of the bar to make legal 12 services fully available, a lawyer should not likely decline 13 proffered employment. The fulfillment of this objective 14 requires acceptance by a lawyer of a fair share tendered 15 employment which may be unattractive both to the lawyer and the 16 bar generally. 17 Do you agree with that? 18 A. I do. 19 Q. I'm going to read you from ethical consideration 4-1. 20 Both the fiduciary relationship existing between 21 lawyer and client and the proper function of the legal system 22 require the preservation by the lawyer of confidences and 23 secrets of one who has employed or sought to employ the lawyer. 24 The client must feel free to discuss anything with his or her 25 lawyer and a lawyer must be equally free to obtain information SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8680 4BAESAT4 Stewart - redirect 1 beyond that volunteered by the client. A lawyer should be 2 fully informed of all the facts of the matter being handled in 3 order for the client to obtain the full advantage of our legal 4 system. It is for the lawyer in the exercise of the 5 independent professional judgment to separate the relevant and 6 important from the irrelevant and unimportant. The observance 7 of the ethical obligation of the lawyer hold inviolate the 8 confidences and secrets of a client not only facilitates the 9 full development of facts essential to proper representation of 10 the client, but also encourages nonlawyers to seek early legal 11 assistance. 12 Do you agree with that? 13 A. Yes, I do agree with that. 14 Q. I'm going to read from ethical consideration 7-8. 15 A lawyer should exert best efforts to ensure that 16 decisions of the client are made only after the client has been 17 informed of relevant considerations. A lawyer ought to 18 initiate this decision-making process if the client does not do 19 so. Advice of a lawyer to the client need not be confined to 20 purely legal considerations. A lawyer should advise the client 21 of the possible effect of each legal alternative. A lawyer 22 should bring to bear upon this decision-making process the 23 fullness of his or her experience as well as the lawyer's 24 objective viewpoint. In assisting the client to reach a proper 25 decision, it is often desirable for a lawyer to point out those SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8681 4BAESAT4 Stewart - redirect 1 factors which may lead to a decision that is morally just as 2 well as legally permissible. The lawyer may emphasize the 3 possibility of harsh consequences that might result from 4 assertion of legally permissible positions. In the final 5 analysis, however, the lawyer should always remember that the 6 decision whether to forego legally available objectives or 7 methods because of nonlegal factors is ultimately for the 8 client and not for the lawyer. In the event that the client in 9 a nonadjudicatory manner assists upon a course of conduct that 10 is contrary to the judgment and advice of the lawyer but not 11 prohibited by disciplinary rules, the lawyer may withdraw from 12 employment. 13 Do you agree with that? 14 A. Yes, I do. 15 Q. I'm going to read from ethical consideration 7-1. 16 The duty of the lawyer both to the client and to the 17 legal system is to represent the client zealously within the 18 bounds of the law, which includes disciplinary rules and 19 enforceable professional regulations, the professional 20 responsibility of a lawyer derived from membership in a 21 profession which has the duty of assisting members of the 22 public to secure and protect available legal rights and 23 benefits. We are a government of laws and not of individuals. 24 Each member of our society is entitled to have his or her 25 conduct judged and regulated in accordance with the law to seek SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8682 4BAESAT4 Stewart - redirect 1 any lawful objective through legally permissible means and to 2 present for adjudication any lawful claim, issue or defense. 3 Do you agree with that? 4 A. I do. 5 Q. And finally, 7-2, ethical consideration 7-2. 6 The bounds of the law in a given case are often 7 difficult to ascertain. The language of legislative enactments 8 and judicial opinions may be uncertain as applied to varying 9 factual situations. The limits and specific meaning of 10 apparently relevant law may be made doubtful by changing or 11 developing constitutional interpretations, inadequately 12 expressed statutes or judicial opinions and changing public and 13 judicial attitudes. Certainty of law ranges from well settled 14 rules through areas of conflicting authority to areas without 15 precedent. 16 Do you agree with that? 17 A. I do. 18 Q. Now, when interpreting the SAMs and interpreting your 19 affirmations, were you guided by those principles? 20 A. I was. 21 Q. Oh, by the way, you were showed some newspaper articles on 22 cross-examination about Greek tourists and so on. Do you 23 remember those? 24 A. Yes. 25 Q. And what's your understanding of the date of those events? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8683 4BAESAT4 Stewart - redirect 1 A. I believe the ones about the Greek tourists took place 2 before the peace initiative, and some of the later dated things 3 did not take place in Egypt. 4 MR. TIGAR: Your Honor, I don't know if it is the 5 lunchtime now. If I could -- if it is, and if we could, I 6 could review my notes and be done very quickly. 7 THE COURT: All right. You would like to take the 8 luncheon break at this point? 9 MR. TIGAR: Yes, sir. I saw Mr. Fletcher leave the 10 room. He may be checking on that. 11 THE COURT: We'll break for lunch. We'll take an hour 12 for lunch, ladies and gentlemen, if we could. So please be 13 ready to come back at about quarter of 2:00. 14 Please, ladies and gentlemen, remember to follow all 15 of my instructions. Please, please, don't talk about this case 16 at all. Please remember to keep an open mind until you've 17 heard all of the evidence, I've instructed you on the law, 18 you've gone to the jury room to begin your deliberations. 19 Have a good lunch, and I look forward to seeing you 20 after lunch. 21 (Luncheon recess) 22 (Continued on next page) 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8684 4BAESAT4 Stewart - redirect 1 AFTERNOON SESSION 2 2:05 p.m. 3 (In open court; jury not present) 4 THE COURT: Mr. Fletcher has reported to me the jurors 5 wanted another 15 minutes for lunch, so you even though I told 6 them we would be back earlier, I told Mr. Fletcher he could 7 give the jurors another 15 minutes. And I tried to have him 8 communicate to the parties that we would be beginning at 2:00 9 rather than quarter of. 10 Are we ready to proceed? All right. 11 MR. STERN: We are, I just have one request that I 12 think it's on behalf of both us and the government, which is 13 that when Ms. Stewart is done testifying, if we could get a 14 five-minute break, get our witness down here, give the 15 government a chance to get whatever they need together and it 16 would be of use to everyone. 17 THE COURT: Sure. Absolutely. All right. 18 MR. TIGAR: When Ms. Stewart is done, your Honor, 19 we're going to offer an exhibit, LS1, but that won't take long. 20 That's the redacted Hawk memo. 21 THE COURT: All right. 22 MS. SHELLOW-LAVINE: Your Honor, there is a limiting 23 instruction with LS1. It appears in the transcript at 24 transcript page 7267 on the 12th of October. 25 THE COURT: I usually just -- do you have a copy of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8685 4BAESAT4 Stewart - redirect 1 the transcript? I usually keep my transcripts back across the 2 street. 3 MS. SHELLOW-LAVINE: I can provide you with an 4 electronic -- 5 THE COURT: That would be fine. Do you have it 6 printed there? 7 MS. SHELLOW-LAVINE: I do not. 8 THE COURT: Is it a long instruction? 9 MS. SHELLOW-LAVINE: Your Honor, it's not. It merely 10 says that the memos are not admitted for the truth of 11 Mr. Clark's statements. 12 THE COURT: That was it? 13 MS. SHELLOW-LAVINE: That's it. 14 THE COURT: They did not include any statements by 15 Sheikh Rahman? Did I -- did you not give anything else, other 16 than it's not admitted for the truth of any statement of 17 Mr. Clark? 18 MS. SHELLOW-LAVINE: That is correct. 19 THE COURT: OK. 20 MR. DEMBER: Your Honor, I'm just looking through the 21 exhibit. There is references to inmate Rahman's statement. 22 I'm looking at page four, for example. Do you have the 23 exhibit, your Honor? 24 THE COURT: I probably thought that it was admissible 25 under the exception for statement of present mental, emotional SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8686 4BAESAT4 Stewart - redirect 1 or physical condition, because I think I limited it. 2 MR. DEMBER: I'm just looking at the -- 3 THE COURT: All rise please. 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 8687 4BAESAT4 Stewart - redirect 1 (In open court; jury present) 2 THE COURT: All right. Good afternoon, ladies and 3 gentlemen. Good to see you all. 4 Ms. Stewart is on the stand. Mr. Fletcher. 5 THE DEPUTY CLERK: Ms. Stewart, you are reminded you 6 are still under oath. 7 THE WITNESS: Yes. 8 THE COURT: All right, Mr. Tigar. You may proceed. 9 BY MR. TIGAR: 10 Q. Ms. Stewart, on the cross-examination you were asked about 11 this question of your view of what constitutional right a 12 person has to counsel. Now, if a poor person needs a lawyer 13 for a purely civil matter, it is not a criminal case but wants 14 to sue the government, did you believe back then, do you 15 believe now, that a person has a constitutional right to that 16 counsel, assistance? 17 A. My understanding is that the person has a right to counsel 18 but he does not, or she does not, have the right to have the 19 government pay that counsel to represent them. I think this 20 was a series of lawsuits brought by the NAACP to guarantee that 21 right to counsel in a civil matter. 22 Q. Now, on cross-examination you were asked questions about 23 your political views, particularly relating to the issue of 24 violence. Do you remember that? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8688 4BAESAT4 Stewart - redirect 1 Q. Do you believe in imminent lawless violence? 2 A. No. That's what I meant when I talked about violence that 3 was done without support of the people, done anarchistically, 4 was the word I used. 5 Q. And to get a picture of your own views in action, what 6 kinds of political activities were you doing, not as a lawyer 7 but in your capacity as a member of the community, back in the 8 late 1990s? 9 MR. DEMBER: Objection, your Honor. 10 THE COURT: Sustained. 11 Q. Did you ever engage in violence to advance your political 12 goals? 13 A. No, I never did. 14 Q. Now, when you mentioned the Board of Education, what were 15 you saying about that as an institution? What did you mean by 16 that? 17 A. I think I was responding to Mr. Dember's question about, 18 well, can you give us an example of an institution that you 19 believe would be something that perpetuates sexism and racism. 20 And my answer to that was based on my first political work in 21 organizing in the community, which was not successful but which 22 was my first endeavor. And it was to change the Board of 23 Education. But, of course, we came to find that they were 24 entrenched, entrenched and corrupted, and in my view remain 25 that way today. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8689 4BAESAT4 Stewart - redirect 1 The organizing still goes on, but that was what I 2 meant by an institution that -- meaning not a building and not 3 a school, certainly, but I -- a group of people socially 4 interacting to carry out what they see as a mandate and which I 5 see as a false mandate. 6 Q. Have you ever tried to incite anyone to join in a violent 7 criminal act? 8 A. No, I never have. 9 Q. Now that all is done, you've read the indictment, how is 10 it, not guilty or guilty? 11 A. Emphatically, not guilty. 12 MR. TIGAR: No further questions. 13 THE COURT: All right. 14 MR. DEMBER: Your Honor, I have no further questions 15 for this witness. 16 THE COURT: All right. Ms. Stewart is excused. You 17 may step down. 18 (Witness excused) 19 THE COURT: Ladies and gentlemen, I'm going to take a 20 break at this point for about five or ten minutes. 21 Please, please, remember my continuing instructions. 22 Don't talk about this case at all. And always remember to keep 23 an open mind until you've heard all of the evidence, I have 24 instructed you on the law, you've gone to the jury room to 25 begin your deliberations. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8690 4BAESAT4 Stewart - redirect 1 All right. Jury may follow Mr. Fletcher to the jury 2 room. 3 (Continued on next page) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8691 4BAESAT4 1 (In open court; jury not present) 2 THE COURT: I called the break now because we were in 3 the middle of discussing LS1. And if we can resolve everything 4 without another break, that's fine. If, Mr. Stern, you want 5 another break after LS1 is in or -- 6 MR. STERN: Not on my account. If you excuse me while 7 you discuss LS1, I'll make sure everything's ready to go as 8 soon as we're done. 9 THE COURT: All right. I don't think -- I don't have 10 a redacted form of LS1. 11 MS. SHELLOW-LAVINE: I apologize, your Honor. I 12 thought we had previously provided one to you. 13 THE COURT: I'm sure we did, but I'm just -- 14 MS. SHELLOW-LAVINE: May I tender one to Mr. Fletcher. 15 THE COURT: Yes. And now, I said previously that I 16 would say the memo was not admitted for the truth of any 17 statements by Mr. Clark in the memo. 18 MR. MORVILLO: Your Honor, I was just reading over 19 your order, which is at page 7267 of the transcript, and what 20 the Court said was, therefore, the objection is overruled 21 except that the memo would be redacted to eliminate the 22 paragraph at the bottom of page two beginning Mr. Clark 23 indicates. 24 And it's -- I'm not sure which page two the Court is 25 referring to. There's a cover memo and then an underlying SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8692 4BAESAT4 1 memo, both of which -- 2 THE COURT: It's the memo. It's the memo. It's page 3 two of the memo. Mr. Clark indicates, and that's redacted. 4 OK. 5 What else do you want to do? Would someone have a 6 transcript that they would like to just give me so that I -- 7 MS. SHELLOW-LAVINE: Your Honor, I'm happy to tender 8 to Mr. Fletcher -- I've got the electronic version on my 9 screen. 10 THE COURT: OK. If you don't mind. 11 MS. SHELLOW-LAVINE: I don't mind. 12 THE COURT: The memo appears to be redacted, as I said 13 it should be, and I said that the limiting instruction is the 14 memos are not admitted for the truth of any statements by 15 Mr. Clark, unquote. 16 And I would also be prepared to listen to any other 17 suggestion for a limiting instruction. 18 MR. MORVILLO: Your Honor, there are two issues that 19 I'd like to raise with the Court. The first relates to the 20 handwritten notations at the end of the report, which as the 21 Court may recall are notes taken by then Assistant US Attorney 22 Patrick Fitzgerald during a telephone call. I think those 23 should be redacted from this document. I don't think they are 24 part of any report for the purposes of 803(8) pursuant to which 25 this document was admitted. Those are simply notations made by SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8693 4BAESAT4 1 Mr. Fitzgerald during a conference call when this report was 2 discussed. 3 MS. SHELLOW-LAVINE: Your Honor, although I do 4 not have a transcript cite in front of me, we did ask 5 Mr. Fitzgerald on cross about those handwritten notes, is my 6 recollection. 7 THE COURT: Did he identify them? 8 MS. SHELLOW-LAVINE: He did. That's my recollection. 9 I don't have the transcript in front of me. 10 MR. MORVILLO: He did identify them, but that does not 11 make them part of the report for the purposes of the hearsay 12 exception, your Honor. 13 MS. SHELLOW-LAVINE: Your Honor, they were taken by 14 him -- my recollection of the testimony is that they were taken 15 by him during the course of the meeting or conference call in 16 which he participated, and that was the basis -- the conference 17 call of which grew out of this memo, and that they were taken 18 at or about the time or during the course of that conference 19 call, is my recollection. 20 THE COURT: They're still hearsay. It certainly 21 didn't -- they didn't come in through 803(8), which was the way 22 in which I introduced this or admitted it. 23 MS. SHELLOW-LAVINE: Your Honor, if the Court would 24 like us now to redact this portion, we can redact it in another 25 version. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8694 4BAESAT4 1 THE COURT: That's fine. 2 MS. SHELLOW-LAVINE: And we'll offer it now. 3 THE COURT: I'll admit the exhibit subject to the 4 redaction. You just don't show that page to the jury, and the 5 exhibit as admitted will have that redacted. 6 MS. SHELLOW-LAVINE: We're not going to publish it to 7 the jury at all at this point. 8 THE COURT: OK. 9 MR. MORVILLO: Your Honor, and the second issue that I 10 mentioned was that the government would request a limiting 11 instruction relating to statements of inmate Abdel Rahman 12 contained in here as not being offered for their truth. 13 THE COURT: What statements are there -- well, first 14 of all, is there any objection to my saying that the memo is 15 not admitted for the truth of any statements by Mr. Clark or 16 Sheikh Rahman? 17 MS. SHELLOW-LAVINE: Your Honor, I've not relooked at 18 the document to be sure, but I did not believe that there were 19 any statements of Mr. Rahman. 20 THE COURT: The only one, I mean, that immediately 21 sort of jumps out at me was that inmate Rahman has stated on 22 occasion that his refusal to accept medical care is due to the 23 bad odor in his cell. 24 MR. MORVILLO: There's another one at the top of page 25 three, your Honor. Inmate Rahman reports he is fasting and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8695 4BAESAT4 1 that he is relying on his fast to control his diabetes. 2 THE COURT: I have no problem saying that Mr. Clark 3 and Sheikh Rahman, not for the truth of those statements. 4 All right. Did I take your only copy, 5 Ms. Shellow-Lavine? 6 MS. SHELLOW-LAVINE: You don't have my only copy of 7 the exhibit, you have my only copy of -- 8 THE COURT: I'm going to return your computer. And I 9 have a redacted copy. 10 Now, after this exhibit is offered -- 11 MR. TIGAR: After it's offered, your Honor, we intend 12 to say that we will not be presenting further evidence at this 13 time, but we'll be examining other witnesses called by other 14 parties. I say it in that form, your Honor, because I'm going 15 to ask nonleading questions. I want to make sure if there's 16 some other form of words I ought to use to make clear that I'm 17 preserving that right, then I will, of course, do that. 18 THE COURT: I'll allow you to preserve the right on an 19 individual basis, like Mr. Jabara. 20 MR. TIGAR: Yes, I'm not seeking to have some open 21 door to globally reopen. 22 THE COURT: So you can raise that with me with respect 23 to individual witnesses. I would have thought that the 24 defendant would want to say before the jury that the defense 25 rests or Ms. Stewart rests. You know, like it's -- SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8696 4BAESAT4 1 MR. TIGAR: I am -- your Honor, I am guided in all 2 things by my own imperfect judgment advised by my client. So 3 if I could say what I had said I'd intended to say, then I 4 would prefer to say that. If the Court wants me to say defense 5 rests -- it's whatever procedures your Honor wants to have in 6 your Honor's court. That's what I'm saying. 7 THE COURT: I certainly think it would be more 8 appropriate to go defendant by defendant -- otherwise, the 9 defense is kept open -- and allow Mr. Yousry to proceed to in 10 effect call witnesses before Ms. Stewart had yet rested. 11 MR. TIGAR: Your Honor, I will say defense rests, 12 subject to requests to the Court from time -- as we may make 13 them to examine witnesses called by other parties. 14 THE COURT: That's fine. 15 MR. TIGAR: All right. 16 THE COURT: That's fine. 17 Now, since Mr. Yousry is prepared to go forward at 18 that point without a break, are there any applications to be 19 made at that time as Ms. Stewart rests, subject to examining 20 other witnesses called by other defendants? 21 MR. TIGAR: No, your Honor, no applications. And now 22 that I'm not having to do any heavy lifting, I don't need these 23 extra breaks that the Court has been according to us. So it's 24 all through them. 25 MR. PAUL: Your Honor, may I inquire procedurally SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8697 4BAESAT4 1 how -- certainly with Ms. Stewart your Honor turned to the 2 government to conduct cross -- I'm sorry. Before we went to 3 redirect with Ms. Stewart, you turned to defense counsel to 4 determine whether we had any cross-examination. Are we to 5 assume that we're going to proceed in that fashion with all 6 witnesses being called by the defense? That would be my 7 request, if we could do it that way, that would be -- I think 8 all defense counsel's in agreement that's how we would like to 9 proceed. 10 THE COURT: You would like to proceed by -- 11 MR. PAUL: By having the government cross first and 12 then defense counsel thereafter, before redirect. 13 THE COURT: Well, with respect to Mr. Clark 14 specifically, I said we wouldn't do it that way. 15 MR. PAUL: I raise that -- I understand that. I just 16 want to make sure that was the ruling. I understand with 17 Mr. Clark there is that caveat that we're proceeding under, but 18 with regard to other witnesses, I'm asking if we can proceed in 19 that fashion. 20 THE COURT: I have no problem proceeding that way. 21 MR. PAUL: Thank you. 22 THE COURT: Unless there are specific issues with 23 specific witnesses. 24 MR. BARKOW: Your Honor, we don't know who all the 25 witnesses are. We have an idea about that, so we'd ask that at SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8698 4BAESAT4 1 least it be left as an open issue and, if necessary, it could 2 be raised about a particular witness. 3 I think it's fair to say of the witnesses about which 4 we've been advised, we don't have a problem with that. If it 5 turns out there's a new witness or some -- it seems like a 6 witness is going to say something beyond what we are expecting, 7 we might ask the Court to assess it differently with respect to 8 that witness. 9 THE COURT: OK. 10 MR. BARKOW: And, your Honor, if I can just make a 11 quick point. I don't know if this really matters, but if it 12 turns out that the issue of this Western District of Missouri 13 opinion arises in the context of Mr. Clark's testimony, if it 14 is a basis of an objection, something about the finality and 15 appealability of that order which Mr. Tigar had raised, I think 16 it's incorrect actually to say that it was not an appealable 17 order. 18 I have cases -- I don't think it's that important of 19 an issue right now, but the Second Circuit at least has stated 20 on several occasions that dismissals without prejudice are 21 appealable. And so if that were to be the basis of an opinion, 22 we disagree that that actually is not an appealable order. 23 MR. TIGAR: Well, actually, your Honor, Section 2.02 24 of my treatise, which is published by West, the cases have been 25 collected on that subject, and I rest with that. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8699 4BAESAT4 1 THE COURT: Well, I alerted the parties to the issues 2 with respect to Mr. Clark and whether they were going to open 3 up what the magistrate judge said and then what the district 4 court judge did by adopting it. I've now had an opportunity to 5 read the report and recommendation and the adoption by the 6 district court. 7 I wouldn't -- I mean, I wouldn't think that the 8 parties would want to open that up. But if they do, then I'll 9 have to listen to the parties. It's plain that in dealing with 10 the issue of qualified immunity, the magistrate judge in 11 finding the facts and conclusions of law that were then 12 accepted by the district court went through such things as 13 Special Administrative Measures and restrictions on Sheikh 14 Rahman and found as a basis for qualified immunity that the 15 officials could not have understood that what they were doing 16 was violating the rights of Sheikh Rahman. And there is no 17 question that the unique medical and security needs in this 18 case went beyond what would customarily be required, and that 19 defendants cannot be said to have violated a constitutional or 20 statutory right that existed at the time in question. 21 And then the magistrate judge recommended, and the 22 judge dismissed the action, dismissed it without prejudice, but 23 one of the things that was done in the course of the decision 24 was to dismiss the claims against the individual defendants on 25 the basis of qualified immunity. So at that point the case was SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8700 4BAESAT4 1 over in the Western District of Missouri. And the question 2 would be, if plaintiff wanted to pursue claims against the 3 individual defendants for having violated Sheikh Rahman's 4 rights, what would plaintiff Sheikh Rahman have had to have 5 done at that point? 6 And, one, I don't think it's necessary for me to 7 research all of the law on that to believe that what Sheikh 8 Rahman would have had to have done was to appeal. But in any 9 event, I've read over the decisions and it reinforces what I 10 said this morning about the satisfactory nature of the record 11 at this point. And I just wanted to set it out again. 12 If the parties intended to open this up with 13 Mr. Clark -- 14 MR. RUHNKE: Your Honor, the defense has no intention 15 of opening it up. 16 THE COURT: Oh, OK. 17 MR. BARKOW: Your Honor, the government is not sure at 18 this point whether it would ask Mr. Clark about this. I think 19 that it could -- either on the state of the present record it 20 could be relevant to show, as Mr. Tigar suggested, in which I 21 said we didn't see a problem with that theory, that Ms. Stewart 22 was not in the loop, to use the words that were used before. 23 Even with the state of the current record, and even 24 if there's no indication that -- through Mr. Clark that 25 Ms. Stewart knew about it or not, because that would be SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8701 4BAESAT4 1 probative to show that although she claims to be concerned with 2 this and has involvement in it, she didn't know something that 3 was very important about it and, therefore, that shows that 4 perhaps it wasn't so important to her. And so we think that it 5 would be relevant on the present state of the record. 6 Furthermore, it might be -- and I don't know what 7 Mr. Clark would say -- it might be true that he told her about 8 this or talked to her about the case. And so that, I think, 9 would make it even more relevant and admissible because it 10 would then contradict, or at least suggest a contradiction. 11 Perhaps she forgot, but it might suggest a contradiction 12 perhaps with what she testified to. 13 So I think that although the defendants may not intend 14 to go there, we may. And so I think -- I wanted to raise it 15 now because I didn't want to run afoul of what the Court was 16 saying. And I also think, given what the Court has said, it is 17 fair for the defendants to know that the government views it at 18 this point as potentially relevant. 19 THE COURT: We will have to wait to see what Mr. Clark 20 says. 21 Are the parties ready to proceed? 22 MR. BARKOW: We just need a minute, your Honor, to 23 move boxes, but I think that will take less than a minute or 24 two. 25 (Pause) SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8702 4BAESAT4 1 MR. BARKOW: Your Honor, I think we're ready. 2 THE COURT: All right. Let's bring in the jury -- by 3 the way, after Ms. Stewart rests, I would explain to the jury 4 the -- subject to the limitations, that concludes the portion 5 of the trial in which Ms. Stewart is entitled to call witnesses 6 and the other parties are entitled to cross-examine. 7 And we turn now to the portion of the case in which 8 Mr. Yousry is given the opportunity to present any witnesses. 9 And I remind you that no defendant is ever required to call any 10 witnesses or present any evidence, because the burden of proof 11 always rests with the government. 12 OK. Mr. Ruhnke, Mr. Stern, who's going to be calling 13 the first witness? 14 MR. STERN: I am. 15 (Continued on next page) 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8703 4BAESAT4 1 (In open court; jury present) 2 THE COURT: All right. Ms. Shellow-Lavine? 3 MS. SHELLOW-LAVINE: Your Honor, Ms. Stewart offers 4 LS1. 5 THE COURT: All right. LS1 is received in evidence. 6 (Defendant's Exhibit LS1 received in evidence) 7 THE COURT: Ladies and gentlemen, this document is not 8 admitted for the truth of any statements in the document by 9 Mr. Clark or Sheikh Rahman. 10 All right. 11 MR. TIGAR: And with that, your Honor, subject to 12 motions we may make later to -- with respect to witnesses 13 called by other parties, Lynne Stewart rests. 14 THE COURT: All right. Ladies and gentlemen, 15 defendant Stewart has now rested, subject to those conditions. 16 And that concludes the portion of the trial in which I 17 explained to you that Ms. Stewart would be entitled to call 18 witnesses and present evidence and others would be given the 19 opportunity to cross-examine. 20 We now turn to the portion of the trial in which the 21 defendant Yousry is given the opportunity to call witnesses and 22 introduce evidence and others are given the opportunity to 23 cross-examine. 24 I remind you that no defendant is ever required to 25 call any witnesses or to present any evidence. The burden of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8704 4BAESAT4 1 proof always remains with the government. The defendant is 2 now, however, entitled, if the defendant wishes, and the 3 defendant is not required to but is -- defendant is given the 4 opportunity to call any witnesses and present any evidence. 5 All right. Mr. Stern? 6 MR. STERN: Mr. Yousry would like to call Ramsey 7 Clark. 8 THE COURT: All right. Mr.Stern? 9 MR. STERN: If I may, before beginning, I'd like to 10 give Mr. Clark a binder of documents we might refer to to make 11 it easier for him to answer questions. 12 THE COURT: All right. 13 MR. STERN: Thank you. 14 RAMSEY CLARK, 14 15 called as a witness by the Defendant, 16 having been duly sworn, testified as follows: 17 DIRECT EXAMINATION 18 BY MR. STERN: 19 Q. Mr. Clark, how old are you? 20 A. Seventy-six. 21 Q. What is your profession? 22 A. Couldn't hear you. I'm sorry. 23 Q. What's your profession? 24 A. I just put new batteries in the hearing aids but there's 25 some blur. I don't know what -- ask the question again. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8705 4BAESAT4 Clark - direct 1 Q. Yes. What do you do for a living? 2 A. I'm a lawyer. 3 THE COURT: Could I -- Mr. Stern, the acoustics in the 4 courtroom are not great. Please make sure to speak into the 5 microphone and speak loudly. 6 MR. STERN: I'll give it a try. 7 Q. Mr. Clark, where did you go to college and law school? 8 A. I went to University of Texas college in first year of law 9 and went to University of Chicago to finish law. 10 Q. And after you completed law school, what did you do for 11 work? 12 A. Well, I went back to Texas and practiced law. 13 Q. How long did you practice law for and with whom? 14 A. Well, I started in late '51 and I practiced there until the 15 end of '60. And I had some cases that weren't in Texas, but 16 most of them were in Texas. 17 (Continued on next page) 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8706 4BA5SAT5 Clark - direct 1 BY MR. STERN:: 2 Q. Was that with a private law firm? 3 A. Yes. 4 Q. When you left private practice, what did you do? 5 A. I joined the Kennedy Administration in the Department of 6 Justice. 7 Q. What year was that? 8 A. That was 1961. 9 Q. What was your role in the Kennedy Administration? 10 A. I was an assistant Attorney General which is a presidential 11 appointment. And in the Department of Justice Robert Kennedy 12 was Attorney General and Byron White was Deputy Attorney 13 General and the next level was Assistant Attorney General. 14 Q. That was you? 15 A. That was me. 16 Q. In your about seven or eight months as an Assistant 17 Attorney General, what did you do? 18 A. My primary responsibility was a land and natural resources 19 environment official. But because I was from the south and 20 because civil rights had become a dominant issue I spent, for 21 the first several years, a good part of my time doing civil 22 rights work. And a good part of that in the south. 23 Q. Did there come a time when you moved on from your job as an 24 Assistant Attorney General under Kennedy? 25 A. I remained an Assistant Attorney General until his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8707 4BA5SAT5 Clark - direct 1 assassination and beyond. 2 And in 1965 I was appointed Deputy Attorney General, 3 which is the next step up. 4 Q. What kind of work did you do while you were the Deputy 5 Attorney General? 6 A. The Attorney General is the deputy -- the Deputy Attorney 7 General is the deputy to the Attorney General and he does 8 everything the Attorney General asks him to do. 9 So, I had departmentwide responsibilities but events 10 determine those things. Almost the first thing I did was the 11 president sent me to head the enforcement team for the March on 12 Selma Montgomery. 13 So, I had been deputy for a couple weeks before I was 14 sent down to Selma, Alabama, to protect the marchers under 15 court order who were marching from Selma Montgomery for the 16 right to vote. 17 Q. When you say the president, who was the president at that 18 time? 19 A. Lyndon Johnson. He did a thing over at the White House and 20 announced what he was doing. 21 We had Army, everybody down there, protecting 22 marchers. 23 Q. Did there come a time when you took a job above Deputy 24 Attorney General? 25 A. Yes. In -- yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8708 4BA5SAT5 Clark - direct 1 Q. What was that? Describe it for me? 2 A. That was Attorney General. 3 In September of '66 the acting -- the Attorney General 4 was appointed Deputy Secretary of State and left the same day 5 and I was Acting Attorney General, as I had been from time to 6 time when the Attorney General wasn't around. And then I was 7 appointed and confirmed to be Attorney General. 8 Q. What kind of things did you do while you were Attorney 9 General? 10 A. Well, you're responsible for running the Department of 11 Justice, which is a big agency. It's got, you know, FBI and 12 prison and immigration and naturalization and what's now drug 13 enforcement. Then it was called, had a different name, BIDAC, 14 bureau of something or other. Had border patrol and prisons. 15 And then events. We had major civil rights 16 legislation. We were responsible for the department's 17 legislative program. You're a cabinet member and you advise 18 the president on the law and you advise the other agencies on 19 the law. 20 Q. How long did you remain Attorney General of the United 21 States? 22 A. Say again? 23 Q. How long did you remain Attorney General of the United 24 States? 25 A. I remained until the last day of that administration; SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8709 4BA5SAT5 Clark - direct 1 January 20, 1969. 2 Q. And so you left when Nixon was elected? 3 A. President Nixon was elected in November and I left in 4 January, the day he was sworn in. I left at 12:00 noon. 5 Q. Once you left your job working for the government, what 6 kinds of things had you done with your career? 7 A. Well, I tried to organize my activity and time around 8 things I have become very interested in and committed to. 9 Peace. The Vietnam war had been heavy burden on all of us and 10 I was committed to do what I could about peace, nuclearism. We 11 worked on the nonproliferation treaty to see if we couldn't end 12 the threat of nuclear weapons. 13 I have been very much involved in civil rights and I 14 decided I wanted to see if we couldn't translate civil rights 15 into what we now call human rights -- internationally -- 16 because I think that's the road to peace. 17 So, I have been doing that sort of thing, pretty much 18 all the time. A lot of it is through organizations, a lot of 19 it is through travel. A lot of it is through legal work and 20 litigation. 21 Q. And up to this day you continue to do that kind of work? 22 A. That's right. 23 Q. I want to ask you about a specific case that you worked on. 24 Do you know who Sheikh Omar Abdel Rahman is? 25 A. Sure. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8710 4BA5SAT5 Clark - direct 1 Q. And I want you to tell me how you first found out who he 2 was and how you came to represent him. 3 A. Well, I'm sure I first found out who he was through the 4 newspapers. I first came -- as far as I can remember, and I 5 think I do, the first occasion in which there was any inquiry 6 of me about representing him was a telephone call from -- which 7 I don't think I took -- from one of his paralegals, asking for 8 an appointment. 9 And I gave him an appointment and the two of them came 10 in on a Saturday. 11 Q. Do you remember who those people were who came in that 12 Saturday? 13 A. Yes. They were Ahmed Sattar and -- 14 Q. Do you see Mr. Sattar in Court? 15 A. And Nasser Ahmed. They were two of his paralegals; 16 court-appointed as I understood it and recall. 17 And they told me something that I think I knew, that 18 the Sheikh, as we called him, as we came to call him, didn't 19 have a lawyer at that time and it was getting pretty close to 20 trial. 21 I guess it would have been summer and I think the 22 trial was September, for September. And they said the Sheikh 23 didn't want a lawyer and they thought he should have one and 24 they wanted to ask me what my opinion was. 25 And I told them I thought it was absolutely essential SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8711 4BA5SAT5 Clark - direct 1 that he have a lawyer. 2 Q. So what happened as a result of that conversation? 3 A. They went away and they called back the next week and said 4 they'd like to see me for some reason, rather than just asking 5 over the phone. They came in and said they talked with the 6 Sheikh and he would like to see me, would I come down to see 7 him. He was being held at what we call MCC, the federal jail 8 right next to the court house here. 9 So, I came down it see him. 10 Q. Did you have a conversation with him? 11 A. Yes. 12 We had a conversation about whether he should have a 13 lawyer and why, and, if so, whom. 14 And I told him from every conceivable standpoint I 15 thought it was essential he should have a lawyer. I told him 16 he should have a lawyer and whether he was going to have a 17 court-appointed lawyer that he didn't know or whether he was 18 going to have a lawyer that was someone that, after 19 consideration, he himself chose. 20 Q. And what was the result of that conversation? 21 A. The result of that conversation was he asked me if I could 22 represent him. 23 Q. Were you able to at that time? 24 Were you able to at that time? 25 A. I told him I would help every way I could and I would SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8712 4BA5SAT5 Clark - direct 1 participate in every way I could; that at that time it seemed 2 extremely unlikely that I could take the period of time because 3 I had other court trials set and things like that, but that I 4 would find lawyers. And if I couldn't find them, we would just 5 have to see if it would be possible for me to do it myself. 6 Q. So how did you go about finding lawyers? 7 A. Well, I thought about it first about who would be good and 8 what kind of lawyer and talked to a number of people and 9 started calling. 10 Q. Did you end up getting lawyers eventually? 11 Did you end up eventually getting him some lawyers? 12 A. Yes. 13 Q. Who? 14 A. Chronologically I'm pretty sure the first lawyer was Lynne 15 Stewart. She -- 16 Q. Why did you think Lynne Stewart was an appropriate lawyer 17 for that case? 18 A. I didn't know her, I never met her. I knew of her and, you 19 know, I watch what lawyers do because I'm interested in that 20 and I respected her trial work and I liked what other lawyers, 21 that I respect, said about her. 22 And so, she came in with her husband, Ralph, and 23 she -- she agreed it was a tough decision for her. I think she 24 agreed to talk to the Sheikh -- I mean that's where you begin, 25 I couldn't hire her. She agreed to talk to the Sheikh. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8713 4BA5SAT5 Clark - direct 1 And I was very hopeful about it. I thought that even 2 just to have -- I mean, it was imperative has have a very 3 effective and aggressive lawyer. But I also thought it would 4 be wonderful to have a woman because of prejudice against Islam 5 and many other reasons, just for the world view. And knew that 6 the Muslim world was -- because I worked for many years in the 7 Middle East and that area, that they would be watching this 8 case very, very critically, and I thought to have a woman would 9 be wonderful. 10 She went down to talk to him and it went over 11 beautifully. 12 Q. In addition to Lynne, did Sheikh Rahman have other lawyers? 13 A. Yes. 14 It worked out -- I had a longtime friend named Abdeen 15 Jabara and he had been -- he's Arab American and practices law 16 in Michigan. We worked on one major case, it took a long time, 17 together, and we had also been in Cairo and places like that 18 together. 19 He had been extremely active and prominent in 20 Arab-American affairs and I thought it would be extremely 21 important to have an identified Arab-American lawyer. I 22 thought he would be extremely lucky to have him. 23 But, he came down here and talked to the Sheikh. He 24 may have already moved, I can't be sure of that. But he gave 25 up his, what he was doing in Michigan, came down here, and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8714 4BA5SAT5 Clark - direct 1 finally the Sheikh chose Lynne and Abdeen and I was the third 2 member of the team. 3 Q. So the three of you were the three lawyers representing the 4 Sheikh, is that correct? 5 A. Yes. 6 You know, our first challenge was an extremely 7 difficult one and timewise extremely difficult. There was a 8 superseding indictment, the trial was adjourned, as they say up 9 here, I think maybe the 1st of November, and then to January. 10 But we didn't get into the case until, I don't think 11 Abdeen and I made appearances until January. I think Lynne 12 made an appearance in the beginning of November. I'm not sure. 13 Q. Now, in addition to the lawyers working on the case, were 14 there any other people helping out on the Sheikh's case? 15 A. Well, there were the paralegals, who also were fluent in 16 Arabic. Because you couldn't communicate with the Sheikh any 17 other way. 18 Q. When you say paralegals, who do you mean? 19 A. Pardon? 20 Q. Who are they by name? 21 A. The paralegals? 22 Q. Yes. 23 A. They were -- there were three main ones. Two I have named 24 and I will name again, but the third one was Nabil Elmasry who 25 was a little bit older man who lived out in New Jersey and had SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8715 4BA5SAT5 Clark - direct 1 known the Sheikh quite well. 2 Then there was Nasser Ahmed, who I mentioned, who was 3 the prominent member of a mosque in Brooklyn where the Sheikh 4 preached quite a bit and rendered other religious services. 5 And then, Ahmed Sattar. 6 Q. And I take it from what you have just said is that the 7 three of them were involved in helping the Sheikh before you 8 ever became involved in trying to help the Sheikh, is that 9 right? 10 A. Yes. 11 Q. So you -- 12 A. I think all three knew the Sheikh before he was indicted. 13 Q. So they sort of came along with the case. You didn't 14 actually go out and select them? 15 A. No. 16 Q. Do you know someone named Mohammed Yousry? 17 A. Do I know the name? 18 Q. Sure. 19 A. Certainly, yes. 20 Q. How do you know Mohammed Yousry? 21 A. Mohammed Yousry was a, an interpreter. He worked in the 22 courts here. He appeared in the case in the trial of the 23 Sheikh, which was a big long trial. Did interpreting work. 24 He was one of the interpreters who was Egyptian which 25 to most of us might not seem important, but it makes a big SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8716 4BA5SAT5 Clark - direct 1 difference in dialect and understandability and all. He seemed 2 to be an extremely good translator and, over a period of time, 3 he became our translator. 4 Q. Now, you talked a moment ago about the other three 5 paralegals were already there when you came on the case. 6 A. Yes. 7 Q. Was that true of Mohammed Yousry? 8 A. No. 9 Q. How did he come to be on the case? 10 A. Well, I think his role in the case was -- I'm not sure he 11 had a role in the case, particularly. 12 I think we used him as an expert witness to interpret 13 some -- 14 MR. BARKOW: Objection, your Honor. Scope of expert. 15 THE COURT: I'm sorry? 16 MR. BARKOW: Expert. 17 If I may confer with Mr. Stern for a moment, your 18 Honor? 19 THE COURT: Sure. 20 (Counsel conferring) 21 MR. BARKOW: Objection withdrawn, your Honor. 22 THE COURT: All right. 23 MR. STERN: Mr. Clark, would you like some water? 24 THE WITNESS: No, thank you. I'm always hoarse. 25 MR. STERN: They told me to offer you some. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8717 4BA5SAT5 Clark - direct 1 THE WITNESS: That was kind, but I don't need any. 2 Q. What I really was getting at, Mr. Clark, is Mr. Yousry 3 didn't make legal decisions during the case, did he? 4 A. Didn't do what? 5 Q. Make legal decisions during the trial? 6 A. No, certainly not. He's not a lawyer. 7 Q. His real role was to act as an interpreter. Whatever he 8 was doing, that was his role on the defense team for Sheikh 9 Rahman, is that right? 10 A. Yes. I think when I was in court he would often sit -- I 11 would sit by the Sheikh and -- because I had a couple of trials 12 that kept me out of this trial for weeks at a time -- but he 13 would sit between me and the Sheikh and interpret back and 14 forth so we could talk to each other and sometimes understand 15 what was going on. 16 Q. Now, how long did the Sheikh's trial take, do you recall? 17 A. The Sheikh's -- 18 Q. How long was the trial? 19 A. I think we began jury selection shortly after New Years in 20 January and I think the trial went until September. 21 Q. And whether you think it was right or wrong, what was the 22 outcome of that trial? 23 A. The outcome was -- there were a whole bunch of defendants 24 and as far as I can recall, all defendants were guilty on 25 essentially all of the major counts. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8718 4BA5SAT5 Clark - direct 1 Q. Once the trial was over, did you have anything else to do 2 with representing the Sheikh? 3 A. Yes. 4 Q. What was that? 5 A. He was transferred immediately and we had established 6 contact with him. He wasn't sentenced yet. He was sentenced 7 in, I think, maybe January, quite a time after the convictions. 8 And we had to talk to him about appeal. I think maybe 9 we noticed appeal immediately but then we had -- we represented 10 him on appeal. 11 Q. During the pendency of the appeal, did the paralegals you 12 referred to continue to be involved with the case? 13 A. The paralegals were involved consistently from -- I mean, 14 that was the only way we could communicate with the Sheikh, the 15 paralegals, and -- who also spoke Arabic, and Mohammed Yousry, 16 the interpreter. And they were available to us whenever we 17 called, fortunately. 18 Q. What happened with the appeal? 19 A. The appeal went on for a long time and was denied. 20 Q. Did you try to go to the Supreme Court after the Court here 21 denied it? 22 A. Yes. 23 Q. What happened with that? 24 A. The Supreme Court denied the petition for writ of 25 certiorari, which is basically a request for them to hear the SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8719 4BA5SAT5 Clark - direct 1 case. They did not hear the case. 2 They declined to hear the case. 3 Q. Once that happened, were there any other levels of appeal 4 left for the Sheikh? 5 A. Not within the judicial system, not appeals. 6 Q. So once that was over with, did you continue to be the 7 Sheikh's lawyer, or one of the Sheikh's lawyers? 8 A. Yes. 9 Q. When you say you continued to be his lawyer, what do you 10 mean by that? 11 A. Well he had -- he had an important range of legal problems 12 including unusual legal problems. 13 We filed a case on prison conditions long before the 14 appeals were over and we had -- we had difficulties concerning 15 legal rights sufficient to require regular communication. 16 So, we were having what we all felt, I think, were 17 important legal calls with him, for the last several years, 18 twice a week. 19 Q. Did you do anything to try to get him transferred from 20 prison in the United States? 21 A. Did we try to get him transferred outside the United 22 States? 23 Q. Correct. 24 A. Yes. 25 One of our -- one of our goals and a very important SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8720 4BA5SAT5 Clark - direct 1 one to him was to get him transferred to Egypt to serve his 2 sentence. 3 He had spent time in prison in Egypt, he was tried 4 twice there and acquitted twice and he had spent maybe five or 5 seven years, I don't remember -- a long time. 6 And while the accommodation might not seem as nice 7 over there, it was familiar to him and it was among Muslims and 8 the language and the food and the climate and the access to the 9 family. And all the rest was something that would make all of 10 the difference in the world. 11 Here, being blind and losing sensitivity in his 12 fingertips because of diabetes so he couldn't read Braille and 13 not having access to Arab language broadcasts, not having 14 interpreters within the prison, being cut off from other 15 prisoners, his isolation was about as total as you could get. 16 So, for his all-around health and future I felt it 17 was -- and he wanted and wants very much, we are still working 18 on it -- 19 Q. To this day you are still working on it? 20 A. On getting him transferred to Egypt. 21 Q. But you're aware, aren't you -- 22 A. In fact, efforts to get him to another country, another 23 Arab speaking country. 24 Q. You are aware, Mr. Clark, that there is no treaty between 25 the U.S. and Egypt which applies to that kind of situation, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8721 4BA5SAT5 Clark - direct 1 aren't you? 2 A. I have worked with transfer treaties for a long time and 3 there is no negotiated transfer treaty between Egypt and the 4 United States at this time. 5 Q. So how would you accomplish the transfer of the Sheikh from 6 here to Egypt without such a treaty? 7 A. Two governments that agree on something can do it when they 8 want to do. They have to do it in accordance with the law, 9 obviously, but they can do it easily. 10 Q. Have you heard of that happening? 11 A. I have been involved in that happening and I have heard of 12 it. 13 One of the most famous extradition cases in this 14 court, in the Southern District, was probably Joe Doherty. And 15 there was no transfer treaty with North Ireland and Congress 16 and Parliament got together in something like a week, an active 17 one, against Joe's will and desire. The United States 18 government and the government of the United Kingdom wanted him 19 transferred and they did it. 20 Q. So when countries are motivated to do that kind of thing, I 21 take it they can find a way? 22 A. Yeah. 23 Q. In addition to lawyers that the Sheikh had in the United 24 States, did he have lawyers in Egypt? 25 A. He had a lot of lawyers in Egypt, yeah, that he used in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8722 4BA5SAT5 Clark - direct 1 various ways. 2 You know, he was a prominent figure in Egypt and he 3 had lawyers who he worked with before he was ever charged with 4 any offense in Egypt. 5 Q. Do you know who his primary lawyers in Egypt were? 6 A. Well I would say his primary -- what you might call family 7 lawyer with a Dr. Mandoor, who was a senior distinguished 8 member of the bar -- older than I am -- there. And he was very 9 devoted to the Sheikh and his family and is always available to 10 try to help with anything they have. 11 I think his -- including religious legal matters. 12 The primary contact with lawyers arising from his two 13 criminal cases in which he was tried would be Muntasir 14 Al-Zayat, probably. He is certainly the most active in the 15 Sheikh's interest. 16 Q. Had you spoken with and met those lawyers? 17 A. Have I spoken with them? 18 Q. Yes. 19 A. Yes, I have spoken with them and met with them and worked 20 with them in the Sheikh's interest. 21 I have been in several cases in Egypt before but I 22 hadn't worked for these lawyers before. 23 Q. By the way, I meant to ask you, who, when you needed to be 24 in touch with the Sheikh's family or people the Sheikh needed 25 contact with in Egypt, how would you do that? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8723 4BA5SAT5 Clark - direct 1 A. Well, in the early period, from the beginning of the 2 representation, I think I always used, and up through say 2000, 3 2001, I think I always used Ahmed Sattar. He knew the family, 4 the family knew him. I couldn't talk with them, they don't 5 speak English. 6 I mean, even the lawyers used him because he had the 7 numbers. He knew them and they new knew him and it made it 8 easy to translate. 9 Q. By lawyers, you mean Egyptian lawyers, I take it? 10 A. Yes. Family and lawyers. 11 Q. Now I want to talk to you some about SAMs. Do you know 12 what SAMs are? 13 A. Yes. 14 Q. What are they? 15 A. Well, they're Special Administrative Measures that the 16 Attorney General, in more recent years -- we didn't have 17 SAMs -- would impose on special cases -- 18 Q. I -- I'm sorry. I didn't mean to interrupt you. 19 THE COURT: The witness just wasn't finished 20 answering. 21 Go ahead. I didn't think you were finished answering 22 the question. 23 THE WITNESS: Okay. I don't know if I remembered it. 24 They're administrative measures that the Attorney 25 General imposes in special, on special prisoner cases. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8724 4BA5SAT5 Clark - direct 1 Q. Okay. 2 A. They're not on the general population, they're Special 3 Administrative Measures. 4 Q. Were there SAMs involved with the Sheikh? 5 A. There came a time when they were, yes. 6 Q. And I'm going to show you Government Exhibit 906, which 7 would be the first document in your book. I want you to tell 8 me if you recognize this document. 9 A. That's not a SAMs. What that is is a statement that the 10 lawyer makes in connection with the SAMs. And that one is the 11 one that I made in April of 1997. 12 THE COURT: Government Exhibit 906 in evidence? 13 MR. STERN: Correct. 14 Q. I want you to look at the bottom of that and tell me whose 15 writing that is at the bottom of that affirmation? 16 A. Well, all the handwriting is mine including the 24, except 17 for the "Lawrence W. Schilling." 18 Q. In addition to that SAM -- that affirmation -- I'm sorry. 19 Did you sign any other affirmations in connection with 20 the Sheikh's case before April 9th of 2002? 21 A. Before when? 22 Q. April 9th. 23 A. I thought there was one in -- I signed this in '97, I 24 thought there was one in 2001. 25 Q. Why don't you take a look in the book that I provided you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8725 4BA5SAT5 Clark - direct 1 at MY-602 and see if that refreshes your recollection. 2 A. Yes, that's January 2001. I thought you said something 3 about April 2002. 4 Q. I said, Did you sign anything before April 9th, 2002? 5 A. Oh, I see. 6 Well, this is before April of 2002, yes. 7 Q. And what is that you are looking at? 8 A. That's a statement that I affirmed. 9 I mean, the government wrote these. Sometimes we 10 disagreed on the language. I think on this one we disagreed on 11 the language and had to agree on it finally and that's just 12 another statement. 13 It's longer and considerably more detailed and 14 restrictive than the first one. 15 Q. And looking at the bottom of page 2, is that your 16 signature? 17 A. Yes. 18 MR. STERN: I would offer MC-602 into evidence. 19 MR. BARKOW: No objection, your Honor. 20 THE COURT: MY-602 received in evidence. 21 (Defendant's Exhibit MY-602 received in evidence) 22 BY MR. STERN:: 23 Q. Other than those two, do you recall signing any other SAMs 24 in the period from when we first looked at until April 9, 2002, 25 the day Mohammed Yousry was arrested? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8726 4BA5SAT5 Clark - direct 1 A. These are the only two, during that period, that I'm aware 2 of. I have no recollection of any others. 3 Q. I want to talk to you some about the restrictions that 4 those affirmations you signed placed you under, okay? Well, 5 withdrawn. 6 After signing those affirmations, the one in '97 and 7 the one in 2001, did you have contacts with the press, either 8 the print press or the television press, during those five 9 years, from '97 through April 9th, 2002? 10 A. Well, sadly for me I have contact with the press fairly 11 regular already on all kinds of things. But if you mean just 12 about this case? 13 Q. I mean specifically about the Sheikh's case, that is right. 14 A. Sure. 15 Q. I want you to take a look at a document MY-516 and MY-516T, 16 and I want you to tell me if you recognize what that is, 17 looking specifically at MY-516T. 18 A. Well, I, on the Arab language I can recognize Al-Hayat, 19 which is a newspaper in London, I think. 20 And this MY-516T seems to be a translation of the 21 first one and I think it's an article that was written based 22 upon an interview that I had with some reporter. 23 Q. Some reporter from Al-Hayat? 24 A. Apparently, yeah. 25 Q. And do you know approximately the date of that interview SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8727 4BA5SAT5 Clark - direct 1 you did with the reporter from Al-Hayat? 2 A. I see the date on here. What is the question? 3 Q. Is that about the time you had the interview? The date on 4 the document, is that about the same time you had the 5 interview? 6 A. I can only assume that it must be, yes. 7 I talked to the press. The press called very 8 frequently. 9 Q. And in that interview, what is it that you were discussing? 10 A. I think this is an interview which I said that the Sheikh 11 favored withdrawing -- not withdrawing, actually. That's 12 putting it backwards. That he favored a cease-fire. 13 Q. That the Sheikh was in favor of a cease-fire? 14 A. Yes. 15 Q. And you made that statement to a reporter, is that right? 16 A. I told at least one reporter that I believe that the Sheikh 17 favored a cease fire. That he thought -- you know, he often 18 said that violence is bad and bad for Muslims and he favored 19 the cease-fire. 20 Q. And I take it when you say that to a reporter you know 21 there is a good chance it is going to end up in a newspaper, is 22 that fair to say? 23 A. Sure. 24 Q. I want you to look at a document which is MY-517. 25 A. Okay. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8728 4BA5SAT5 Clark - direct 1 Q. I want you to tell me if you recognize that document. 2 A. This is the one that begins: Dear Kings and Presidents? 3 Q. Right. 4 A. Dear Brothers? Yes. 5 Q. What is it? 6 A. Yes, this one I'm -- 7 Q. Tell me about it? 8 A. You know, I'm more familiar with this one. 9 I had been invited to a, an Arab meeting in Abu Dhabi 10 or Dubai but in the Emirates there, and it was a big one that 11 would involve a whole bunch of heads of state like the 12 presidents of governments and what not. I thought President 13 Mubarak of Egypt would be there. 14 I thought it was an important opportunity for the 15 Sheikh to send greetings to remind the leadership of his 16 existence and condition. 17 And we worked on this statement which is in his style 18 but some of the ideas, I think, were mine but the facts are -- 19 yeah, I think some of the style is all the Sheikh's because it 20 is supposed to be greetings from him so it has, you know, I 21 would never say things: Peace and God's mercy and blessings be 22 upon you. 23 But the substance was things that we thought should be 24 said and accreted to them and remind them that, of his 25 situation and desire. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8729 4BA5SAT5 Clark - direct 1 So, it seemed like an important opportunity and I 2 carried this over. The United States government was 3 represented there and there was a couple of, I think there may 4 have been two former assistant secretaries for the Middle East 5 and perhaps the acting one. I'm not quite sure. But I 6 remember them being in meetings and speaking. 7 And I caused this statement -- I think it was 8 published but, anyway, I tried to give it to as many people 9 who, heads of states and other as people. I didn't hand it out 10 but I did inform them. 11 Q. That was around October of '97, is that right? 12 A. Well, I don't -- I don't really know exactly when it was. 13 I know I went on from there to other countries before I came 14 home. It was at -- I think it was that fall anyway, yes. 15 MR. STERN: May I have one moment to confer with Mr. 16 Barkow? 17 THE COURT: Sure. 18 (Counsel conferring) 19 BY MR. STERN:: 20 Q. Were there other times when you met with the Sheikh or 21 spoke with the Sheikh and discussed giving information to 22 newspapers or things like that, with him? 23 A. You know, we constantly discussed how we kept the world 24 reminded of his presence and his condition, how we created a 25 situation in which his exchange could be feasible and this SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8730 4BA5SAT5 Clark - direct 1 involved if there was anything of that nature to us, the press, 2 the media. 3 Q. Do you recall a time sometime in 1998 when, with Mr. Yousry 4 interpreting, you discussed a series of questions from the 5 Italian press -- a paper I am going to mispronounce Corriera De 6 La Serra? 7 A. The Italian press -- you know, it is hard for me to place 8 these times and instances. 9 The Italian press was interested in the Sheikh's case 10 probably more than any other European country, and I had calls 11 from the members of the Italian press maybe not monthly but 12 frequently, sometimes just checking up on what's happening to 13 the Sheikh. How is he doing? What's his health? 14 MR. TIGAR: Your Honor, may we ask Mr. Clark to speak 15 close to the microphone? I'm having trouble. 16 THE WITNESS: Sorry. I have to bend over to do that. 17 THE COURT: Perhaps if you move the microphone up a 18 bit and lean it towards you. 19 All right. 20 BY MR. STERN: 21 Q. Now, when you would have these conversations with the 22 Sheikh about talking to the press about meeting with the press, 23 who would usually do the interpreting for you? 24 A. Well, I think he was always -- well, it depends on the 25 time, that's true. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8731 4BA5SAT5 Clark - direct 1 It would -- early on -- we are talking after the 2 trial? 3 Q. Yes. 4 A. Early on it could have been any of three people. I don't 5 recall any others. I recall going through Springfield several 6 times. And I recall going twice with Ahmed Sattar; once at 7 least with Nasser Ahmed. 8 But, then there came a time where it was always 9 Mohammed Yousry. 10 Q. And I take it you would be present while you had these 11 discussions with the Sheikh? 12 A. Well, the translator was always present or there wasn't 13 much discussion. 14 We could, you know, we could humor each other a little 15 bit without a translator but we couldn't communicate anything 16 that was or in any way sophisticated that was significant. 17 We really couldn't carry on a conversation. I tried 18 on the phone when nobody was around and if I lasted 10 minutes 19 it was a great strain. Because we couldn't really tell what 20 each other was saying. 21 Q. I want you to move ahead a little to 1999 and to begin by 22 looking at MY-518. And if you would look at the second which 23 is the same as the first only in larger print? 24 A. I find two 19s, I don't find 18 here. 25 MR. STERN: May I approach for one second, your Honor? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8732 4BA5SAT5 Clark - direct 1 THE COURT: Yes. 2 THE WITNESS: What's it about? 3 Q. 518? 4 A. I have the number. I see 519 but I don't see 518. Here it 5 is. It is not in numerical order. 6 Q. There you go. 7 A. Sorry. 8 Q. Do you have it now? 9 A. Yes, I see it. 10 Q. Those are two identical articles, take a look at the second 11 one only because it is easier to read, and tell me if you 12 recognize what that article is about? Just generally. 13 A. It's not easy to read. It is not only small but some of it 14 is blurred. 15 Q. The very next thing is the same article in larger print? 16 A. There is larger print somewhere? 17 Q. The very next thing, the sail article, larger print. There 18 you go. 19 A. Thank you. 20 Yes, I see that it is an article by Abdel Rahman in 21 February of 1999. 22 Q. What's it about? 23 A. It seems to be reporting on a press conference. 24 Q. Can you tell from that article, or do you recall who was 25 present for that press conference? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8733 4BA5SAT5 Clark - direct 1 A. Well, there was a bunch of press and I wouldn't know who 2 they were, but I would say the Egyptian press was quite 3 interested. And it was almost surely held in Muntasir 4 Al-Zayat's office. 5 Whether I wanted it or not he would always call the 6 press when I was there, which was natural because the press, 7 they think, here is the Sheikh's lawyer coming from the United 8 States and we are going to talk to him. 9 MR. STERN: Judge, maybe this is a good time if you 10 want to break for a few minutes? 11 THE COURT: All right. Ladies and gentlemen, we will 12 break for about 10 minutes. 13 Ladies and gentlemen, please remember my instructions. 14 Please, don't talk about this case at all. Always remember to 15 keep an open mind until you have heard all of the evidence and 16 I have instructed you on the law. 17 You may go on to the jury room to begin your 18 deliberations. 19 Have a good break. See you shortly. 20 (Continued on next page) 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8734 4BA5SAT5 Clark - direct 1 (Jury not present) 2 THE COURT: Mr. Clark may step down. 3 (Witness steps down) 4 THE COURT: See you shortly. 5 (Recess) 6 THE COURT: Please be seated, all. 7 All right. Are we ready? 8 Bring in the jury, please. 9 (Continued on next page) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8735 4BA5SAT5 Clark - direct 1 (Jury present) 2 THE COURT: Please be seated, all. 3 The witness is on the stand. 4 Mr. Fletcher? 5 THE DEPUTY CLERK: Mr. Clark, you are reminded that 6 you are still under oath. 7 THE WITNESS: Yes. 8 THE COURT: Mr. Stern, you may proceed. 9 MR. STERN: Thank you. 10 BY MR. STERN: 11 Q. Mr. Clark, I would like you to take a look at what is 12 marked MY-507. 13 A. Uh-huh. 14 Q. Why don't you describe for me what it is? 15 A. It is a picture. 16 Q. What is it a picture of? 17 A. It's a picture of three people. 18 On the left is Muntasir Al-Zayat, who is a lawyer in 19 Cairo. The picture is taken in Cairo, it was taken in his 20 office. In the middle is me. And on the right is the son of 21 Sheikh Omar Rahman, one of his newer sons named Abdullah, who 22 is about to finish his Ph.D in Islamic study at Al-Azhar. 23 Q. Is that the same son Abdullah who is quoted talking about 24 his father in MY-518, the last article you talked about? 25 A. I didn't get that. It was something about 518. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8736 4BA5SAT5 Clark - direct 1 Q. Yes. Take a look back at MY-518 that we talked about a few 2 moments ago. 3 A. I will find it here in a minute. This is embarrassing. 4 519, 520--518? 5 Q. Yes. It's a news article. 6 A. It's the one we were looking at, isn't it? 7 Q. Sure is. 8 A. I am having a harder time this time, I don't see it. 9 THE COURT: You can approach. 10 THE WITNESS: Oh, I'm sorry, it may be up here. 11 Q. There is a statement in that article from someone 12 identified as the Sheikh's son Abdullah; is that the same 13 person as in the picture we were just talking about? 14 A. I'm sure it is. 15 I mean, Abdullah is his son and he's the son that 16 remains with the family. He is kind of the acting head of the 17 family in the Sheikh's absence. 18 MR. STERN: I would offer MY-507 in evidence. 19 MR. BARKOW: No objection, your Honor. 20 THE COURT: All right. MY-507 received in evidence. 21 (Defendant's Exhibit MY-507 received in evidence) 22 MR. STERN: May I display it to the jury? 23 THE COURT: Yes. 24 Q. Now why don't you take a look at MY-508 and tell me what 25 that's a photograph of? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8737 4BA5SAT5 Clark - direct 1 A. That's another picture, it's taken, and he's got four 2 people, four men, a little boy -- and I'm sure it's taken in 3 the Sheikh's home, his library up the river in Fayyum up the 4 river, about 50 miles up the river from Cairo. 5 I'm on the left, next to me is Muntasir Al-Zayat and 6 the other two men are lawyers. I think the one, the shorter 7 one in the dark suit is a lawyer from Fayyum but I'm not 8 positive. The other guy is the guy that drove me up there, I 9 think, with Muntasir. And then there is a little boy over on 10 the right who is a young son of the youngest child I think it 11 was said. 12 MR. STERN: We offer MY-508 into evidence. 13 MR. BARKOW: No objection, your Honor. May I confer 14 with Mr. Stern for a moment? 15 THE COURT: Yes. MY-508, in evidence. 16 (Defendant's Exhibit MY-508 received in evidence) 17 MR. STERN: May I publish 508 to the jury? 18 THE COURT: Yes. 19 (Counsel conferring) 20 MR. BARKOW: I'm sorry, may I confer with Mr. Stern 21 for just one more moment, please? 22 THE COURT: Yes. 23 (Counsel conferring) 24 BY MR. STERN: 25 Q. After the SAMs began and you signed the affirmation in SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8738 4BA5SAT5 Clark - direct 1 1997, I take it you continued to have these press conferences 2 and interviews with the press, is that right? 3 A. I don't think there was any -- any difference in -- I mean, 4 during the trial it was a different time. After the trial I 5 think my contact with the press would be about the same up 6 until January of 2001. There would be a lot of calls and 7 occasions when I would be in Cairo. 8 But there were questions in the other parts of the 9 Middle East. Sometimes when I would go there people would ask 10 me about the Sheikh. 11 Q. And did you continue, from 1997 through 2002, to give the 12 Sheikh information from and about his family and friends? 13 A. Well, the Sheikh had, for most of the time, a monthly call 14 to the family. 15 And in between, though, there would be many things 16 that he would want from the family, he would want to tell the 17 family to do. 18 He would want to inquire about the family, he would 19 want to inquire about particular members of the family. That 20 sort of thing. 21 And irregularly participated in trying to keep family 22 dialogue going as best we could. 23 Q. Did you think that was part of your role as his lawyer? 24 A. Pardon. 25 Q. Did you think that that was part of your role as his SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8739 4BA5SAT5 Clark - direct 1 lawyer? 2 A. As far as it had to do with legal things, yeah. 3 For instance, the wife actually came to one visit, we 4 negotiated several visits to come to see the Sheikh in prison. 5 Only one was successful where the wife was able 20 come with an 6 older brother of the Sheikh. And we would have to talk back 7 and forth and back and forth about how they would go to the 8 consular office in Cairo and I would call the consular office 9 when they got there and things like that. 10 But there was all kinds of things about how the 11 younger children were doing. And sometimes -- I remember the 12 Sheikh wanted a particular book and some religious treatise 13 and, I mean he couldn't read the book but he wanted someone to 14 find the book in his library at home. He had a big library and 15 described where it was. And then they, he wanted someone to 16 copy or transmit so we could give him, translate to him -- 17 communicate to him this treatise that he wanted to hear again. 18 He couldn't have read it. 19 THE COURT: A couple of jurors raised their hands 20 because I'm sure that they can't hear. Please keep your voice 21 up. 22 THE WITNESS: Okay. 23 THE COURT: And speak into the microphone, even if you 24 have to lean forward. 25 Thank you. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8740 4BA5SAT5 Clark - direct 1 THE WITNESS: I'm sorry. 2 Q. The articles we discussed up to now, that's not an 3 exhaustive list of every time you spoke to the press about the 4 Sheikh's situation, is it? 5 A. No. No, the press -- you know, there are times when they 6 would call more than once a month and sometimes something would 7 be in the press and they would think about it and they would 8 call and ask how he was, what's going on. 9 I don't think we initiated many but we tried to 10 respond and we sent many to the prison. When they wanted an 11 interview or something we would always have to send him to the 12 prison. 13 Q. When they wanted to interview the Sheikh? 14 A. Yes. 15 Q. In addition to keeping him up to date with his family, did 16 you make any effort to keep him up to date on world news of one 17 sort or another? 18 A. Yes. We had a big effort. 19 Q. And why did you think that was important? 20 A. Well there were, there were two basic reasons. One, the 21 Sheikh knew the leadership and the politics of Egypt intimately 22 and if he was out of touch with current events, his judgment 23 wouldn't be worth anything. And we tried to keep him -- 24 because we were looking for circumstances in which Egypt would 25 want him back because they would need to do a favor for Muslims SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8741 4BA5SAT5 Clark - direct 1 or because it would help them with some international matter 2 that they had. And we had to keep him informed so he could -- 3 we could rely on his judgment. 4 I mean, he knew -- he knew, like, the head of 5 intelligence where I would talk with him and remind how he 6 would feed the Sheikh when he was in prison there. So there 7 was that sort of relationship that I wouldn't know about and 8 couldn't deal with him being informed. 9 But in addition, it is hard for people to understand 10 when you don't know the role of a religious scholar or 11 particularly an Islamic scholar. They are supposed to know 12 everything. It sounds funny but I learned that in Iran. 13 I spent a lot of time in Iran in the '70 and the 14 Ayatollahs were expected to know everything. And what they 15 knew they spent their life studying. And the Sheikh was cut 16 off from that. 17 Here is a man who was born in poverty and blind and 18 had memorized the Quran by the time he was 15 or something like 19 that and had become a Ph.D with honors -- 20 MR. BARKOW: Objection. Not responsive, your Honor. 21 THE COURT: Overruled. 22 A. And he was cut off from everything that he had been doing. 23 You know, his daily activities, he would not just give 24 sermons that would have to be relevant to what was happening in 25 the world, but he would give individual advice to people all SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8742 4BA5SAT5 Clark - direct 1 day long about family matters and religious duties and things 2 like that. 3 And it was the principle, the input that he needed to 4 maintain himself psychologically under the total isolation that 5 he was in. 6 This is a man in a mosque context that was overswarmed 7 by people. I mean, there were just people around him waiting 8 in line to hear him and to go from mosque to mosque and talk to 9 people and hear him and suddenly no one speaks Arabic, can't 10 see or read anything and he has no visitors except lawyers when 11 they could get there, his prayer. 12 When you take all of the years that he was in there 13 and the times we could get out there it was very rare. 14 (Continued on next page) 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8743 4abesat6 Clark - direct 1 A. (continued) And our phone conversations. So we read to him 2 from the papers all the time, and anything that would be -- 3 pertain to Islam or to the Middle East. And we'd take -- well, 4 when we go into the prison, we take the papers in there to read 5 to him. It was a big part of what we had to do to keep him 6 where we could serve him as a lawyer because he could -- he 7 could focus on things. He would be psychologically capable of 8 dealing with you. But also because of just his health and 9 survival. 10 Q. I want to talk to you about phone calls, legal phone calls 11 you would get from the Sheikh when he was in prison. And he 12 would get those phone calls, is that correct? 13 A. Yes, we would get phone calls for what would seem like -- 14 most of the time we'd get two a week. They were on Tuesdays 15 and Fridays. It would be for an hour. 16 Q. And when you say we would get phone calls, tell me exactly 17 what would happen when a phone call from the Sheikh would come 18 in. 19 A. Well, before the call came in, there would be an agreement 20 with the prison as to where the call would go, because the 21 great majority of the calls would come to my office. The 22 reason for that was that there were now three of us who could 23 take the phone call as lawyers. It was Abdeen Jabara. There 24 was my law partner, as I would call him, though we didn't have 25 an agreement or anything, Larry Schilling, who purely as a SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8744 4abesat6 Clark - direct 1 service to me would take the call when I wasn't there. He 2 had -- you know, he didn't ever represent the Sheikh, never met 3 the Sheikh before. He didn't know -- he didn't have background 4 but he could take the call. And he signed the statements that 5 the lawyers were asked to sign affirming what they would not 6 do. 7 And the calls would come in. The operator would say 8 we have a collect call and we'd accept it, and then there would 9 be somebody in the prison with the Sheikh. They would have him 10 sitting there and some guard or somebody in the prison would 11 say, you have a call from Sheikh Omar, as they tended to call 12 him, and his -- who's going to take the call? That would be 13 the question, usually: Who's going to take the call? 14 And usually Ben Cheney would answer the phone, or Jack 15 Gabrielski. Those are two guys who were our staff. And they 16 would know and they would say, Mr. Clark's going to take the 17 call, Mr. Jabara. 18 Now, when Lynne was available, the call would go to 19 her office. There may have been occasions when she took a call 20 because she happened to be up in our office, something like 21 that, but I don't really recall. I think usually her calls 22 would go to her office and depend on her schedule. And we 23 took -- we took 90 percent plus of all the calls. So it's a 24 lot of calls, we're talking about 200, 300 calls. 25 Q. Over the years you're talking about, 200, 300 calls over SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8745 4abesat6 Clark - direct 1 all the years you were receiving these calls? 2 A. Well, we -- once the -- we were established, we'd just 3 start talking to him and Yousry in the phone calls. After a 4 certain time Yousry was the translator for all of the phone 5 calls. He was the only one that we had, Mohammed Yousry. 6 Q. Did you know during these phone calls Mohammed Yousry was 7 reading newspapers to the Sheikh? 8 A. Certainly. I mean, I would give him English language 9 things because I didn't want -- if I was there, I would say, 10 here's something in the Times or in the news or whatever paper 11 he ought to know about that I just happened to see. Or I might 12 tell him about it myself to save the reading, if I was going to 13 chat with him for a little while. 14 And then Yousry would have -- he would pick up Arab 15 language newspapers. Yousry's a scholar himself. He was 16 working on his PhD at NYU, and I think he probably read all 17 these newspapers anyway. I don't really know. 18 But anyway, he would get them and we would discuss 19 what would be most interesting to the Sheikh and most important 20 for him to know. And he would read him the news. It was a big 21 part of the phone conversations. 22 Q. So I take it you never told him not to do that? 23 A. No, no, that's what he was -- one of the more important 24 roles, more time consuming roles that he played. 25 Q. In addition to these phone calls, on some occasions you SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8746 4abesat6 Clark - direct 1 went to prison to visit the Sheikh, is that right? 2 A. Yes. 3 Q. And when you were going to make these visits to the Sheikh, 4 who would plan them? How would they get planned? How would 5 the airline reservations get made, that sort of thing? 6 A. Well, I think the way it would usually work is maybe the 7 lawyers would talk first and say, we've got to go see the 8 Sheikh. Who can go? And -- you know, because we had three 9 busy lawyers. And then that lawyer would decide when he or she 10 could go. And then in all the instances I can remember, we 11 would ask Ahmed Sattar to do the arrangements to -- 12 Q. By that, the airline reservations? 13 A. Airplane reservations and tickets. I don't know if we got 14 hotel -- we stayed in motels out there, but I don't know really 15 whether they were made in advance or not. But he would take 16 care of all that. 17 Q. Now, before you arrived at your meetings with the Sheikh, 18 would you discuss with Mr. Yousry what you hoped to accomplish 19 on that trip? 20 A. Well, we'd -- you know, we would always try to sit together 21 on the plane. We'd meet at the airport. I don't remember 22 going to the airport together. And we would certainly discuss 23 what we would try -- what our agenda would be. We'd always try 24 to arrange it so we could meet with the Sheikh for two days 25 because it was, you know, very important to him. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8747 4abesat6 Clark - direct 1 We always had to try to save things for the second 2 day. The Sheikh would -- the second day was always difficult 3 for the Sheikh because -- you know, the first day he was happy 4 to see us. And the second day he thought how long it would be 5 before I talk to anybody again, see anybody; not see 6 physically, but have a visitor. 7 So we had to try to plan for the second day to keep 8 him from, you know -- sometimes he'd be sufficiently unhappy 9 that we couldn't get much done the second day. We'd try to get 10 stuff, real work, legal matters and things on the first day, 11 and the newspaper reading. We were usually going to catch a 12 plane the second day, too, so we had a shorter day. 13 Q. During these visits what kinds of things would you do, that 14 is, while you were meeting with the Sheikh? 15 A. Well, we'd have -- you know, one thing that was important 16 to everything else was his morale. I mean, he's obviously a 17 very strong person. He's been through a lot, but we had -- I 18 think we all believed, certainly I did, that we had to work on 19 his morale. So we try to help him laugh. And he's a good 20 laugher; he's got a good sense of humor. He loves jokes. 21 But you had to do that to get to serious things. And 22 we -- there was always an agenda. I always had nine or ten 23 items and I used to carry them on a piece of paper, things that 24 we were working on for the Sheikh and had to get done. And he 25 had to -- he had a memory like a steel trap. If you got mixed SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8748 4abesat6 Clark - direct 1 up on it, he'd correct you immediately. 2 So we would -- and then we'd -- you know, we would 3 get -- we'd go to the machines and get something to drink for 4 him, but we would try to spend all the time -- we'd get there 5 as early as we could, as early as they'd let us in, and stay as 6 late as they'd let us stay, except the second day we might have 7 to catch a plane. 8 Q. Would you read the papers when you were on these visits; 9 that's not you, but with Mr. Yousry? 10 A. Sure. 11 Q. When you were on these visits would you have meals with 12 Mr. Yousry? 13 A. Would I have what? 14 Q. Eat your meals with Mr. Yousry in restaurants. 15 A. Yeah, with whoever I went with. I don't remember -- if 16 nobody had anything else to do. We were in Springfield, 17 Missouri, or Rochester, Minnesota, so we would eat together and 18 stay in the same motel, get up and have breakfast together. 19 And the center of our concern and talk would be the Sheikh and, 20 secondarily, perhaps where to eat. We found a couple of good 21 places in Rochester. I don't remember in Springfield. 22 Q. While you were with him during these visits, would he have 23 to stop to pray several times a day? 24 A. Have to do what? 25 Q. Stop and pray. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8749 4abesat6 Clark - direct 1 A. Oh, yeah. The Sheikh would always pray. 2 Q. And how about Mr. Yousry, would he always pray? 3 A. No. No, you -- Mohammed Yousry didn't pray. I don't 4 remember seeing him pray at all. I considered him secular 5 in -- I mean, he's obviously religious, but the Sheikh was 6 always fussing at him about not being -- the other -- the 7 paralegals were very religious. Ahmed Nasser and Ahmed 8 Sattar -- Nasser Ahmed, they would pray regularly. They would 9 stop in the middle of conversation to go pray. Which is good. 10 Q. But not Yousry? 11 A. I don't remember Yousry ever praying, no. 12 Q. Did you ever have a glass of wine with him at dinner? 13 A. In the evening I would have a glass of wine and Mohammed 14 would have a glass of wine. And if Ahmed was there, there was 15 a fish place in the -- Springfield, and he'd want to go back in 16 the kitchen to make sure they weren't cooking with wine. It 17 was almost embarrassing because he was afraid they were cooking 18 it with wine and he wouldn't know about it. He really would 19 fuss about it to make sure they didn't do it. 20 Q. Now, we've talked at some length about the Special 21 Administrative Measures, and you've told us that you signed a 22 couple of them, right? 23 A. Yeah. 24 Q. Did you ever read the Special Administrative Measures to 25 Mohammed Yousry? SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8750 4abesat6 Clark - direct 1 A. No, I don't remember him even -- ever having them in my 2 possession when he was around, and I never read him my 3 statement, either. 4 Q. Did you ever explain to them -- to him what they allowed or 5 disallowed -- 6 A. I don't think so. 7 Q. -- in your presence -- I'm sorry. 8 A. I don't remember it. I really don't, you know, know why I 9 would have. He was approved. They insisted that he be 10 approved. And he's a professional, you know. He knows a 11 translator doesn't go around talking about what he -- what's 12 said in translation. You're not supposed to do that. 13 Q. In your presence did any lawyer ever explain the 14 requirements of the Special Administrative Measures to 15 Mr. Yousry? 16 A. You know, I'm sorry, I didn't -- 17 Q. In your presence did any lawyer or anyone ever explain the 18 requirements of the Special Administrative Measures to Mohammed 19 Yousry? 20 A. No, I don't recall -- it wasn't anything that I ever saw. 21 Q. Now, how many years have you known Mohammed Yousry as of 22 today? 23 A. I guess nine. 24 Q. And during those nine years, either based on conversations 25 with other people or just on your own knowledge and opinion of SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8751 4abesat6 Clark - direct 1 him, have you formed an opinion as to whether or not Mr. Yousry 2 is an honest person? 3 A. Yes, I have an opinion. 4 Q. And what is that opinion? 5 A. I think he's as honest as anybody I ever met. 6 MR. STERN: Thank you, Mr. Clark. 7 THE COURT: All right. Mr. Tigar? 8 MR. TIGAR: May I examine, your Honor? 9 THE COURT: Yes. 10 CROSS EXAMINATION 11 BY MR. TIGAR: 12 Q. Mr. Clark, have you ever met Lynne Stewart before that time 13 in 1994 when you were looking for a lawyer for Sheikh Abdel 14 Rahman? 15 A. No. The first time I ever met Lynne that I remember was 16 when she and Ralph came up one Saturday afternoon to my office 17 in '94. 18 Q. And did she express any hesitation to you that you remember 19 about getting involved in the case? 20 A. It's kind of sad now, but Ralph was very much opposed to 21 her getting into the case and said so. He said, you know, it's 22 not your experience. It's not your career. It's not anything 23 you've done before. And it was a tough one because, you know, 24 financially it promised to be a disaster. And it was -- and -- 25 which she said she would talk to the Sheikh. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8752 4abesat6 Clark - cross 1 Q. Did you endeavor to persuade her to be involved in the 2 case? 3 A. I hope it wasn't undue pressure, but I certainly -- I 4 certainly hoped she would take the case. 5 Q. Now, did you regard her as your colleague then in 6 representing Sheikh Abdel Rahman? 7 A. I'm sorry. I didn't get the first part. 8 Q. Did you regard her as your colleague in representing Sheikh 9 Abdel Rahman? 10 A. I missed the key word there. I regard her as a what? 11 Q. Colleague? 12 A. Colleague, yeah. I regard her as a -- over the long run as 13 a part of the team. But in the trial phase I regarded her 14 as -- in the trial of the Sheikh she was the leader. She was 15 the one that carried the major burden. She was the litigator 16 that was there every day and that I think showed the world that 17 he had aggressive representation in that trial. 18 Q. And after the trial was over, which member of the team took 19 the leading role in the appeal to the United States Court of 20 Appeals? 21 A. Well, I think probably everybody would agree clearly that I 22 did, in part term, is fair play. Lynne had done the trial. I 23 was there maybe half the time, maybe more, but not much more. 24 I think I did the heavy lifting on the appeal. She knew -- I 25 mean, when you're at the trial, you know things that you can't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8753 4abesat6 Clark - cross 1 get from the transcript. You know, I sort of had to talk to 2 her about aspects and rely on her about aspects, but I was 3 responsible for the appeal primarily. 4 Q. Now, once your client was moved to Springfield, you told us 5 that the calls were twice a week, the telephone calls? 6 A. You know, I'm awfully sorry. I just didn't hear -- I can't 7 hear the question. I've got brand new batteries in my hearing 8 aid but maybe that's the problem. 9 Q. There's an echo from this microphone. If I stand back a 10 little, maybe it will be better. 11 Once your client was moved to Springfield -- 12 A. Mm-mm. 13 Q. -- the legal calls were twice a week, you had these 14 twice-a-week legal phone calls? 15 A. I got the move to Springfield and I didn't get what you 16 said after that. I'm sorry. 17 THE COURT: That's all right. Actually, if you could 18 keep your voice up. 19 The question was: After the move to Springfield, you 20 had twice-a-week legal phone calls, question? 21 A. I'm not sure if from the very beginning that we had them 22 twice a week, but for most of the time we did, yes. 23 Q. And you've said on -- is it easier if I don't stand by the 24 microphone for you to hear the question? 25 A. It seems to me. I don't know if it will prove that way. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8754 4abesat6 Clark - cross 1 MR. TIGAR: May I stand here, your Honor, so I'm not 2 booming through the system. 3 THE COURT: Yes, but please keep your voice up. 4 MR. TIGAR: Yes, sir. 5 BY MR. TIGAR: 6 Q. And you told us that most of the phone calls came to your 7 office, is that right? 8 A. Yes. 9 Q. Now, how would you arrange where the call was supposed to 10 be, what office it was supposed to go to? 11 A. I think that we would assume the call was going to come 12 on -- the standing -- the understanding was that the call would 13 come to my office. And when Lynne could take the call, we 14 would call out there and tell them that she would be taking the 15 call and they should call her office. 16 Q. Now, did you and Mr. Schilling and Mr. Jabara and 17 Ms. Stewart keep in touch with each other about the matters 18 that were affecting Sheikh Rahman's situation? 19 A. Well, I think we had to, as best we could, because -- not 20 Mr. Schilling but the other three of us, Lynne Stewart and 21 Abdeen Jabara and myself, would be talking to the Sheikh. And 22 we had to know what the others had said to him. So we had -- 23 and we all wanted to know, we all tried to keep up. It wasn't 24 easy either. 25 Q. From your observation did all of the lawyers have a similar SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8755 4abesat6 Clark - cross 1 approach to yours about what it was appropriate to convey to 2 your client? 3 MR. BARKOW: Objection. 4 THE COURT: Sustained. 5 Q. Did you have an opportunity to participate with other 6 lawyers at the same time on the legal phone calls; that is, 7 were there calls where there was more than one lawyer? 8 A. Yeah. When Abdeen would take the call, he would take them 9 right in his office, which was two rooms away from me. And if 10 I happened to come into the office during the call, or if I 11 happened to be in a meeting or on the phone or something when 12 they started, I would then go in there and Abdeen would be at 13 his desk. And he would stay there while I was there, so we 14 would both be there for the time that I was there. He would be 15 there the whole time. 16 Q. And did you rely on Mr. Yousry at any time to convey 17 information about what had happened to the other lawyers who 18 were on the team? 19 A. Yeah. We would have to allow him -- hold on. He would be 20 covering all the phone calls in -- after that early varying 21 period, and he would be the natural communicator with the other 22 lawyers. We would -- there was something the lawyers didn't 23 discuss among themselves or had a chance to discuss among 24 themselves, he would be a natural source of communication 25 between the lawyers, between different phone calls. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8756 4abesat6 Clark - cross 1 MR. TIGAR: May I have just a moment, your Honor. 2 THE COURT: Yes. 3 MR. TIGAR: Thank you very much. No further 4 questions. 5 THE COURT: All right. Mr. Fallick, you may examine. 6 MR. FALLICK: May I inquire, your Honor. 7 THE COURT: Yes. 8 CROSS EXAMINATION 9 BY MR. FALLICK: 10 Q. Mr. Clark, do you see Mr. Sattar in the courtroom? 11 A. Yes. 12 Q. And could you point him out for the jury, please. 13 A. Yeah. He's the far person on the -- that row of -- beyond 14 where you were sitting, the lawyers there. 15 MR. FALLICK: Your Honor, may the record reflect that 16 Mr. Clark has pointed out and identified Mr. Sattar. 17 THE COURT: Yes. 18 Q. Now, was he one of the people who initially came to you to 19 speak about the Sheikh? 20 A. He -- he came the very first time that I was contacted 21 directly from anyone connected with the Sheikh, and he came the 22 very second time, too. 23 Q. Did you understand him to be one of the Sheikh's 24 paralegals? 25 A. Yes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8757 4abesat6 Clark - cross 1 Q. Did he remain a paralegal during the entire course of the 2 Sheikh's trial? 3 A. I'm not sure. My memory's not good on that. I don't know. 4 I think maybe not, but -- well, I'll -- he would -- I would see 5 him in the -- at MCC in the evening, so he was certainly 6 authorized. As far as I can recall, then, I would have to 7 say -- I don't remember seeing him in the courtroom that much, 8 but maybe he was there, but -- 9 Q. But you remember seeing him in the MCC? 10 A. Yes. 11 Q. And the MCC is the prison where the Sheikh was held? 12 A. Yes. 13 Q. And do you remember seeing him visiting with the Sheikh? 14 A. Well, he would be there for purposes of helping us, too, 15 the lawyers. We'd go over there after court in the evening and 16 he would be there to translate, among other things, and to 17 carry out assignments that we agreed upon. 18 Q. And after the Sheikh was moved to Springfield, did you 19 visit him there? 20 A. Yes. 21 Q. Did Mr. Sattar accompany you on some of these visits? 22 A. Yes. 23 Q. And how many visits did he accompany you to Springfield? 24 A. Well, it's very hard to remember, you see, but two I know. 25 And I think we ate at the same place both times, and I don't SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8758 4abesat6 Clark - cross 1 think we ate there a third time. So I think it's just two. 2 Q. Do you recall testifying before that Mr. Sattar spoke to 3 the Sheikh's family? 4 A. Yes. 5 Q. Was that on behalf of the lawyers? 6 A. I didn't get the last part. 7 Q. Was that on behalf of the lawyers representing the Sheikh? 8 A. He was -- he was the person that we used almost exclusively 9 at that time to communicate with the Sheikh's family and that I 10 used and the Sheikh's lawyers. 11 Q. And where was the Sheikh's family? 12 A. They were in Fium, just up the river from Cairo, about 13 50 miles south of Cairo. And they were in Giza, just outside 14 of Cairo. The younger ones and the wives were up the river 15 and, Abdel and some others were in Giza near the City of Cairo. 16 Q. Do you recall testifying just shortly before that you spoke 17 to the media about the Sheikh? 18 A. Yeah. 19 Q. And was that the American media? 20 A. Well, I think he would have spoken with the American media 21 that would -- he would have occasion to speak with. 22 Q. And did you speak with the foreign media? 23 A. I think he did. He knew -- you know, he would translate 24 for us. They knew him and they would seek us through him for 25 translation and other purposes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8759 4abesat6 Clark - cross 1 Q. Did you have an opinion why it was important for you and 2 the other lawyers to speak to the media about the Sheikh? 3 A. Yes. 4 Q. What was that opinion? 5 MR. BARKOW: Objection. 6 THE COURT: Overruled. 7 A. Well, I -- it's pretty much the reasons that I thought I'd 8 mentioned; that it was important to keep the memory of the 9 Sheikh alive. He was prohibited from communicating himself. 10 We couldn't patch calls through from him. We couldn't put him 11 on a speaker phone. We couldn't let anybody else listen to the 12 phone calls. We couldn't tape-record them and put them out on 13 a loud speaker from the top of a mosque. 14 His lawyers had a duty in representing him and hoping 15 to protect all of his rights to remind the world of his 16 existence so he wouldn't be completely forgotten. 17 MR. FALLICK: Your Honor, may I display to Mr. Clark 18 Government Exhibit 2057 in evidence. 19 THE COURT: Yes. 20 MR. FALLICK: Thank you. 21 Q. Mr. Clark, let me show you Government Exhibit 2057 in 22 evidence. This is obviously a document in Arabic. And I would 23 like to show you page four of the document. I'll zoom in for 24 you. 25 On the upper left-hand corner, it says December 8, SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8760 4abesat6 Clark - cross 1 '98, 1650 from CNN special assignment. And on the right it 2 says to 912129791583. 3 Do you know what the number is on the right? 4 A. Yeah, that's the fax number for the fax that we use in my 5 office. 6 MR. FALLICK: Thank you. I have no further questions, 7 your Honor. 8 THE COURT: All right. Ladies and gentlemen, it's a 9 little after 4:30 so we'll break for the day. And, indeed, as 10 you know tomorrow is a holiday, so we will not be sitting 11 tomorrow or Friday. It's a long weekend. And I wish you a 12 very good weekend. 13 But I underline again all of my continuing 14 instructions. They are -- they are so important. Please, 15 follow them scrupulously, very carefully. Please, don't talk 16 about this case at all. Don't talk about it among yourselves. 17 Don't talk about it with anyone when you go home over the 18 weekend. Don't look at or listen to anything to do with the 19 case. If you should see or hear something inadvertently, 20 please, simply turn away. Everything that is at all relevant 21 to your consideration you hear here in the courtroom. So, 22 please, don't look at or listen to anything to do with the 23 case. 24 And finally, always remember to keep an open mind 25 until you've heard all of the evidence, I've instructed you on SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8761 4abesat6 Clark - cross 1 the law and you've gone to the jury room to begin your 2 deliberations. Fairness and justice to the parties requires 3 that you do that. 4 With that, I wish you very sincerely a very good 5 weekend, and I look forward to seeing you on Monday morning at 6 9:30. Have a good weekend. 7 (Continued on next page) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8762 4abesat6 Clark - cross 1 (In open court; jury not present) 2 THE COURT: Please be seated, all. Now, there are 3 some issues with respect to upcoming exhibits, right? 4 MR. RUHNKE: Yes. 5 THE COURT: I certainly don't want to use jury time to 6 talk about them. I am prepared to continue with these now. 7 I'm also prepared to talk to you on Friday. I don't know if 8 everything is ready to be talked to me now. 9 MR. RUHNKE: Your Honor, I'm relatively confident 10 everything's not ready to be talked about now. I am also -- 11 maybe I'm just too much of an optimist. The government and the 12 Yousry defense continued to discuss issues, continued to reach 13 agreement on issues. And it's not that I don't want to be here 14 on Friday, it's that I don't think we have that level of 15 disagreement at this point that would require that much time to 16 resolve it. 17 We are still talking. We are still -- for example, 18 the government has come to us with transcripts and asked that 19 we make certain suggestions. This issue about the Assistant 20 United States Attorney from the Virgin Islands, we're talking 21 about a stipulation that may suffice to take that off the 22 table. So there are -- maybe the government disagrees, but I 23 don't think we have the level of disagreement at this point 24 that we really can sharpen those issues. 25 MS. BAKER: I agree that we are continuing to talk and SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8763 4abesat6 Clark - cross 1 that we are optimistic that we will resolve many issues. 2 I guess I don't think and -- I don't think we're going 3 to resolve the issues about the York College records, which are 4 MY1801, and the two telephone calls that we previously argued, 5 which are MY1729 and 1730, unless Mr. Ruhnke has changed his 6 mind about any of that. So those are still open issues for the 7 Court, as far as I know. 8 MR. RUHNKE: As far as the York records are concerned, 9 we have rendered our position in writing. I don't have any 10 desire to argue that any further. 11 As far as the other two calls are concerned, I think 12 the way we left it, I was going to get you something on that 13 tonight. If I could do it tomorrow, I'd like to do it 14 tomorrow. But neither one of these are earth shattering 15 issues, if I could put it that way. 16 THE COURT: That's fine. I gave you, as best I could, 17 an indication of what I thought about the York College records 18 at this point, which is that I'm most impressed by the argument 19 that they appear to be impermissible character evidence on a 20 subject that was not permissible character evidence under the 21 rules. 22 To the extent that they had any relevance or any 23 permissible purposes, they really didn't go to anything very 24 specific about this case. And anything with relevance is 25 outweighed by the dangers of unfair prejudice, such as SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8764 4abesat6 Clark - cross 1 sympathy, confusion, taken for an improper purpose. They are 2 essentially students and teachers who thought that Mr. Yousry 3 was a good teacher. 4 MR. RUHNKE: And balanced. Had a fair overview of the 5 subject. There's at least one faculty recommendation that 6 talks about having observed the class on jihad. 7 THE COURT: I will take them all with care. 8 MR. RUHNKE: We've made our position clear, and I 9 understand your Honor's preliminary view is rapidly becoming 10 your final view. And if that's your final view, that's your 11 final view. And we're not going to burden the record with any 12 more argument on that issue. 13 THE COURT: OK. What about the other two transcripts? 14 MR. RUHNKE: I was -- the other two -- 15 THE COURT: You wanted to give me something? 16 MR. RUHNKE: Something tomorrow on that, if I may. 17 THE COURT: OK. 18 MS. BAKER: Your Honor, may I confer with Mr. Ruhnke 19 for one moment. 20 THE COURT: Sure. It is a holiday, so feel free to 21 give me any faxes you wanted to give me tomorrow, but if you 22 want me to take it on Friday, you can get it to me Friday as 23 well. 24 MR. RUHNKE: We're not engaging in a major celebration 25 of the holiday tomorrow. We'll be sending faxes. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8765 4abesat6 Clark - cross 1 THE COURT: OK. 2 MR. STERN: Excuse me, Judge. I have one request 3 which was raised with me by the reporters, but I think it's a 4 very good idea, if the Court would allow us to do it. 5 As you can tell, Mr. Clark doesn't hear as well as 6 some other people do. And I've been told we could put LiveNote 7 on or near somewhere the stand where he's sitting. I suggested 8 it to him, and he would appreciate it very much. 9 So if we could do that for I guess Monday, I think it 10 would be useful to everyone and make things go more smoothly, 11 because sometimes he misses a single word. And if he could 12 just look and see what it was, he wouldn't have to have 13 repeated interactions about what a single word was. 14 So if -- they didn't -- the cord wasn't long enough 15 today or I would have asked them today, but they've indicated 16 they could get it to us by tomorrow. 17 MR. BARKOW: Your Honor, I mean, the next step is 18 cross-examination. And I think that after observing Mr. Tigar 19 step away from the microphone, I was thinking that I -- I'd 20 like to stay at the podium but I could put the microphone 21 aside. I think I speak pretty loudly, and I'll try to speak 22 slowly. I don't know if it's necessary, and it would be 23 different than the rest -- 24 MR. STERN: I really don't care that much. I thought 25 it would make things easier. If they don't want it, more power SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8766 4abesat6 Clark - cross 1 to them. 2 THE COURT: OK. I would actually prefer not to do it 3 because doing it raises questions in my mind about having a 4 witness see the raw transcript as it's going along. As you see 5 from time to time, I have to correct things in the transcript. 6 I mean, I tell the reporter that there's a mistake. And it 7 would give -- it doesn't seem to me to be the best practice to 8 have the witness see the raw transcript. 9 OK. Anything else? OK. Well, I'll see you all at 10 9:00 on Monday morning. 11 MR. TIGAR: If for some reason, your Honor, it becomes 12 necessary to have a Friday session on these evidentiary 13 matters, may the Stewart defense team be excused? Ms. Stewart 14 would waive her presence and ours. 15 THE COURT: Yes, but I don't expect that we will have 16 that happen, but I -- I accept your waiver. 17 MR. FALLICK: Your Honor, we would make the same 18 request, that we'll be with Mr. Sattar Friday at the MCC. 19 THE COURT: Mr. Sattar waives his presence? 20 MR. FALLICK: Yes, your Honor. 21 MR. PAUL: Please make sure the marshals do not -- 22 that happened last time, we're not blaming the government, we 23 just want to make sure it doesn't happen again. 24 THE COURT: As of now there's nothing scheduled here 25 for Friday in this case. SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8767 4abesat6 Clark - cross 1 All right. See you all on Monday at 9:00. 2 (Adjourned to Monday, November 15, 2004, at 9:00 a.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300 8768 1 INDEX OF EXAMINATION 2 Examination of: Page 3 LYNNE STEWART 4 Cross By Mr. Dember . . . . . . . . . . . . 8587 5 Redirect By Mr. Tigar: . . . . . . . . . . . 8657 6 RAMSEY CLARK 7 Direct By Mr. Stern . . . . . . . . . . . . 8704 8 Cross By Mr. Tigar . . . . . . . . . . . . . 8751 9 Cross By Mr. Fallick . . . . . . . . . . . . 8756 10 GOVERNMENT EXHIBITS 11 Exhibit No. Received 12 2616 . . . . . . . . . . . . . . . . . . 8623 13 2617 . . . . . . . . . . . . . . . . . . 8625 14 2661 . . . . . . . . . . . . . . . . . . 8635 15 DEFENDANT EXHIBITS 16 Exhibit No. Received 17 LS1 . . . . . . . . . . . . . . . . . . . 8703 18 MY-602 . . . . . . . . . . . . . . . . . 8725 19 MY-507 . . . . . . . . . . . . . . . . . 8736 20 MY-508 . . . . . . . . . . . . . . . . . 8737 21 22 23 24 25 SOUTHERN DISTRICT REPORTERS, P.C. (212) 805-0300